S-3

As filed with the Securities and Exchange Commission on January 22, 2004

Registration No. 333-[         ]

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM S-3

REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

Concord Communications, Inc.

(Exact name of Registrant as specified in its charter)

Massachusetts	04-2710876
(State or other jurisdiction	(I.R.S. Employer
of incorporation or organization)	Identification Number)

600 Nickerson Road
Marlboro, Massachusetts 01752
(508) 460-4646
(Address, including zip code, and telephone number,
including area code, of Registrant’s principal executive offices)

John A. Blaeser
President and Chief Executive Officer
Concord Communications, Inc.
600 Nickerson Road
Marlboro, Massachusetts 01752
(508) 460-4646
(Name, address, including zip code, and telephone number,
including area code, of agent for service)

Copies of all communications, including all communications sent to the agent for service, should be sent to:

Kevin M. Barry, Esq.
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, Massachusetts 02110
(617) 248-7000

Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.

     If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. o

     If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x

     If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o

     If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o

     If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following. o

CALCULATION OF REGISTRATION FEE

		Proposed maximum
Title of each class of	Amount to be	offering price per	Proposed maximum	Amount of
securities to be registered	Registered	security	aggregate offering price	registration fee
3.0% Convertible Senior Notes due 2023	$86,250,000	100%(1)	$86,250,000	$6,977.63(2)
Common Stock, par value $0.01 per share	(3)	(3)	(3)	(4)

(1)	Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 under the Securities Act of 1933.
(2)	The fee is calculated pursuant to Section 6(b) of the Securities Act on the basis of the offering price of the notes.
(3)	Includes 3,209,776 shares of common stock issuable upon conversion of the notes at the rate of 37.2148 shares of common stock for each $1,000 principal amount at maturity of the notes. Pursuant to Rule 416 under the Securities Act, such number of shares of common stock registered hereby shall include an indeterminate number of shares of common stock that may be issued in connection with a stock split, stock dividend, recapitalization or similar event.
(4)	Pursuant to Rule 457(i), there is no additional filing fee with respect to the shares of common stock issuable upon conversion of the notes because no additional consideration will be received in connection with the exercise of the conversion privilege.

     The Registrant hereby undertakes to amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to Section 8(a), may determine.

The information in this preliminary prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

SUBJECT TO COMPLETION, DATED JANUARY 22, 2004

$86,250,000
(AGGREGATE PRINCIPAL AMOUNT)

3.0% CONVERTIBLE SENIOR NOTES DUE 2023 AND
THE COMMON STOCK ISSUABLE UPON THE CONVERSION OF THE NOTES

     We issued the notes in a private placement on December 8, 2003. This prospectus will be used by selling securityholders to resell their notes and the common stock issuable upon conversion of their notes. We will not receive any proceeds from this offering.

     The notes are issued only in denominations of $1,000 and integral multiples thereof and mature on December 15, 2023. The notes will be issued only in registered book-entry form. You may convert the notes into shares of our common stock in accordance with the terms and conditions of the notes prior to their maturity or their prior redemption or repurchase by us. The conversion rate is 37.2148 shares of common stock per each $1,000 principal amount of notes, subject to adjustment in certain circumstances. This is equivalent to a conversion price of approximately $26.87 per share.

     We will pay cash interest on the notes on June 15th and December 15th of each year. The first such payment will be made on June 15, 2004. The notes are general unsecured obligations of Concord, ranking equally in right of payment with all our existing and future unsecured senior indebtedness, and senior in right of payment to any of our future subordinated indebtedness. The notes will be effectively subordinated to any of our existing and future secured indebtedness to the extent of the assets securing such indebtedness and to the claims of all creditors of our subsidiaries.

     We may redeem for cash all or a portion of the notes at any time on or after December 15, 2008, upon at least 20 days’ notice, for a price equal to 100% of the principal amount of the notes to be redeemed plus accrued and unpaid interest (including additional amounts), if any, to but not including the redemption date.

     Holders may require us to purchase all or part of their notes for cash at a purchase price of 100% of the principal amount of the notes plus accrued and unpaid interest on December 15, 2008, December 15, 2013 and December 15, 2018 and upon the occurrence of a designated event, as described in the section of this prospectus entitled “DESCRIPTION OF NOTES.”

     The notes are eligible to trade on the Nasdaq’s screen-based automated trading system known as the Private Offerings, Resale and Trading through Automated Linkages, or “PORTAL”. Our common stock is quoted on the Nasdaq National Market under the symbol “CCRD”. On January 21, 2004, the last reported closing price of our common stock on the Nasdaq National Market was $19.29 per share.

The securities offered hereby involve a high degree of risk.
See “Risk Factors” beginning on page 7.

     Neither the Securities and Exchange Commission (“SEC”) nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

The date of this prospectus is January     , 2004.

TABLE OF CONTENTS

EX-4.3 INDENTURE DATED DECEMBER 8, 2003

EX-4.5 REGISTRATION RIGHTS AGREEMENT

EX-5.1 OPINION OF TESTA, HURWITZ & THIBEAULT, LLP

EX-12.1 COMP. OF RATIO OF EARNINGS TO FXD CHARGES

EX-23.1 CONSENT OF PRICEWATERHOUSE COOPERS LLP

EX-25.1 ELIGIBILITY OF TRUSTEE ON FORM T-1

You should rely only on the information contained herein or specifically incorporated by reference in this prospectus. We have not authorized anyone to provide you with information different from that contained in this prospectus. The selling stockholders are offering to sell, and seeking offers to buy, securities only in jurisdictions where offers and sales are permitted. The information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or of any sale of securities.

TABLE OF CONTENTS

	Page
Special Cautionary Note Regarding Forward Looking Statements		1
Summary of the Offering and the Company		2
Risk Factors		6
Use of Proceeds		21
Description of Notes		21
Description of Capital Stock		51
Certain U.S. Federal Income Tax Considerations		54
Certain ERISA Considerations		60
Selling Securityholders		62
Plan of Distribution		64
Legal Matters		65
Experts		66
Where You Can Find More Information		66

SPECIAL CAUTIONARY NOTE REGARDING FORWARD LOOKING STATEMENTS

     This prospectus includes or incorporates by reference “forward-looking statements” within the meaning of Section 27A of the Securities Act, and Section 21E of the Securities Exchange Act of 1934 (the “Exchange Act”). For example, statements in this prospectus regarding our financial position, business strategy and other plans and objectives for future operations, and assumptions and predictions about future product demand, supply, manufacturing, costs, marketing and pricing factors are all forward-looking statements. When we use words like “intend”, “anticipate,” “believe,  “estimate,” “plan,” “will” or “expect,” and other terms of like import, we are making forward-looking statements. We believe that the assumptions and expectations reflected in such forward-looking statements are reasonable, based on information available to us on the date hereof, but we cannot assure you that these assumptions and expectations will prove to have been correct or that we will take any action that we may presently be planning. We have disclosed certain important factors that could cause our actual results to differ materially from our current expectations, including:

• variations in our quarterly operating results;

• integration of acquired products and technologies;

• announcements of technological innovations or new products by us or our competitors;

• introduction of new products or new pricing policies by us or our competitors;

• announcements by us or our competitors of significant customer orders;

• acquisitions or strategic alliances by us or others in our industry;

• changes in global economic and political conditions;

• relationships with strategic partners and other evolving distribution channels;

• the hiring or departure of key personnel;

• our failure to continue to expand into international markets;

• failure to obtain or protect our intellectual property rights;

• changes in the software industry cycle;

• changes in the market for our products and services;

• changes in market valuations of companies within the software industry;

• changes in estimates of our performance or recommendations by financial analysts; and

• the other risks and uncertainties described in this prospectus under “Risk Factors.”

     You should understand that forward-looking statements made in connection with this offering are necessarily qualified by these factors. We are not undertaking to publicly update or revise any forward-looking statement if we obtain new information or upon the occurrence of future events or otherwise.

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SUMMARY OF THE OFFERING AND THE COMPANY

     As used in this prospectus, references to “Concord,” “we,” “our” or “us” refer solely to Concord Communications, Inc. and not to any of our current or future subsidiaries, unless the context otherwise requires.

     The following summary is qualified in it entirety by the more detailed information appearing elsewhere in this prospectus. You should consider carefully the information set forth in this prospectus under the heading “RISK FACTORS.”

     This prospectus is offering an aggregate principal amount of $86,250,000 of 3.0% Convertible Senior Notes due 2023 and 3,209,776 shares of our common stock issuable on conversion of the notes for sale by certain selling stockholders. The selling stockholders acquired the notes in connection with a private placement on December 8, 2003 and the resultant resale by the initial purchaser of the notes under Rule 144A for the Securities Act.

     We are receiving no proceeds from the sale of securities offered for sale hereunder. We have agreed to pay the expenses associated with registering the securities of the selling stockholders. We may suspend the use of this prospectus during certain periods of time described in the section of this prospectus entitled “DESCRIPTION OF NOTES” if the prospectus would, in our judgment, contain a material misstatement or omission as a result of an event that has occurred and is continuing, and we determine in good faith that the disclosure of this material non-public information would have a material adverse effect on us and our subsidiaries taken as a whole.

     We develop, market and support scalable fault and performance management software solutions, the eHealth® Suite family of products. Our solutions ensure availability of the information technology (“IT”) infrastructure by providing an end-to-end view across the components of this infrastructure: the network, the systems and the applications.

     Technology plays an essential role for many businesses as they rely on their IT infrastructure to deliver products and services to their customers. This dependency on their IT infrastructure requires corporations to closely monitor their applications, client and server systems, and networks to ensure high availability. The ability to provide fast, easy-to-access, and high availability IT services has become a differentiator for many successful businesses. Our eHealth® Suite family of products help these businesses optimize the performance and availability of IT infrastructure on which businesses depend for their day-to-day business and operational success.

     Customers, such as corporate enterprises, managed service providers and telecommunication carriers, use our eHealth® fault and performance management software to ensure the availability of their IT infrastructures. Our eHealth® Suite family of products enables our customers to reduce down time, optimize the usage of current resources, and limit the need for incremental IT personnel as their IT infrastructures expand. Our eHealth® Suite software enables managed service providers and telecommunication carriers to monitor compliance with service level agreements and to introduce new services for their customers. Service providers also rely on the eHealth® Suite to help ensure the quality of services such as network and bandwidth services, web hosting, data center/co-location services, internet services, managed services and outsourcing services.

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     Our software monitors the performance of the infrastructure by collecting large volumes of data from network devices, client and server systems and applications. This information is then stored in a relational database where it is consolidated, normalized and analyzed. IT personnel can retrieve this information to gain a better understanding of the performance of the infrastructure via our eHealth® E2E Console or via standard web-based browsers; these personnel can also run standardized or customized reports.

     Our software also enables businesses to test and monitor availability and responsiveness of critical business applications. Our software enables businesses to measure and monitor actual end-user application response time, perform custom monitoring and measurement of individual business transactions and understand application availability through active testing of an application. Our software allows the IT professional to analyze any degradation in service and see if the degradation is being caused by the network, the client, the back-end server or the application itself. IT personnel can analyze numerous combinations of response metrics and time periods, which enable them to detect degrading performance, service level breaches, and declining availability of applications. IT personnel can also determine the capacity being utilized on a specific network or a server which will help them plan the future capacity of the infrastructure and ensure that service level agreements are met.

     Our target markets include corporate enterprises, managed service providers and telecommunication carriers. We market to these potential customers through our own sales force, sales agents, value-added resellers, distributors, network service providers, telecommunication carriers, and original equipment manufacturers. As of September 30, 2003, we had approximately 3,000 eHealth® customers operating in and serving a broad variety of industries. No individual customer or reseller accounted for more than 10% of our revenues as of September 30, 2003.

     We were organized as a Massachusetts corporation in 1980 under the name Concord Data Systems, Inc., and changed our name to Concord Communications, Inc. in 1986. Our principal executive offices are located at 600 Nickerson Road, Marlboro, Massachusetts 01752. Our telephone number is (508) 460-4646. Our web site is www.concord.com. The contents of our website are not part of this prospectus.

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The Offering

The following summary contains basic information about the notes and is not intended to be complete. It does not contain all the information that will be important to a holder of the notes. For a more complete understanding of the notes, please refer to the section of this document entitled ''Description of Notes.’’

Issuer	Concord Communications, Inc., a Massachusetts corporation.
Notes Offered	$86.25 million aggregate principal amount of 3.0% Convertible Senior Notes due 2023.
Maturity Date	December 15, 2023, unless earlier repurchased, redeemed, or converted.
Ranking	The notes are our general unsecured obligations, ranking equally in right of payment with all our existing and future unsecured senior indebtedness, and senior in right of payment to any of our future subordinated indebtedness. The notes are effectively subordinated to any of our existing and future secured indebtedness to the extent of the assets securing such indebtedness and to the claims of all creditors of our subsidiaries.
Interest	The notes bear interest at an annual rate of 3.0% on the principal amount from December 8, 2003 payable semi-annually in arrears in cash on June 15th and December 15th of each year, beginning June 15, 2004, to the holders of record at 5:00 p.m., New York City time, on the preceding June 1st and December 1st, respectively. Interest will be computed semi-annually on the basis of a 360-day year comprised of twelve 30-day months.
Conversion Rights	Holders may convert the notes into shares of our common stock at an initial conversion rate of 37.2148 shares of common stock per $1,000 principal amount of notes (representing a conversion price of approximately $26.87 per share), subject to adjustment, prior to the close of business on the final maturity date only under the following circumstances:

	(i) during any conversion period, if on each of at least 20 trading days in the period of 30 consecutive trading days ending on the first trading day of the conversion period, the closing sale price of our common stock exceeded 120% of the conversion price in effect on that 30th trading day of such period, a “conversion period” will be the period from and including the 30th trading day in a fiscal quarter to, but not including, the 30th trading day (or, if that day is not a trading day, then the next trading day) in the immediately following fiscal quarter; or
	(ii) if we have called those notes for redemption; or
	(iii) upon the occurrence of the specified corporate transactions discussed under “Description of Notes — Conversion Rights — Conversion Upon Specified Corporate Transactions.”
	In lieu of delivery of shares of our common stock, and pursuant to the procedures described below, we may elect to deliver to holders surrendering notes either cash or a combination of cash and shares of our common stock. If we elect to satisfy the entire conversion obligation in cash, we will deliver to the holders cash in an amount equal to the product of: (a) a number equal to (i) the aggregate principal amount of the notes to be converted divided by 1,000 and multiplied by (ii) the conversion rate, and (b) the arithmetic average of the closing sale prices of our common stock during the specified cash settlement averaging period.
Sinking Fund	None.
Optional Redemption	On or after December 15, 2008, upon at least 20 days’ notice, we may redeem all or a portion of the notes at any time for a price equal to 100% of the principal amount of the notes to be redeemed plus accrued and unpaid interest (including additional amounts), if any, to but not including the redemption date. See “Description of Notes — Optional Redemption.”

Repurchase at Option of Noteholders	Holders have the right to require us to purchase all or a portion of their notes for cash on December 15, 2008, December 15, 2013 and December 15, 2018 (each, a “purchase date”). In each case, upon at least two business days’ prior notice, we will pay a purchase price equal to 100% of the principal amount of the notes plus accrued and unpaid interest, (including additional amounts), if any, to but not including the purchase date. See “Description of Notes — Purchase of Notes at a Holder’s Option” and “Risk Factors — We may not have the funds necessary to purchase the notes upon a designated event or other purchase date, as required by the indenture governing the notes.”
Designated Event	After the occurrence of a designated event, a holder will have the right to require us to purchase for cash all or any part of the notes at a purchase price equal to 100% of the principal amount plus accrued and unpaid interest (including additional amounts), if any, up to, but not including, the designated event purchase date. See “Description of the Notes — Purchase of Notes at a Holder’s Option Upon a Designated Event” and “Risk Factors — We may not have the funds necessary to purchase the notes upon a designated event or other purchase date, as required by the indenture governing the notes.”
Book-Entry Form	The notes were issued in book-entry form and will be represented by permanent global certificates deposited with, or on behalf of, The Depositary Trust Company, or DTC, and registered in the name of a nominee of DTC. Beneficial interests in any of the notes will be shown on, and transfers will be effected only through, records maintained by DTC or its nominee and any such interest may not be exchanged for certificated securities, except in limited circumstances. See “Description of Notes — Form, Denomination and Registration.”
Nasdaq Symbol	The trading symbol for our common stock is “CCRD.”

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Summary Consolidated Financial Data

      The following summary consolidated financial data for each of the five years ended December 31, 2002 were derived from our audited consolidated financial statements included in our Annual Report on Form 10-K for the fiscal years ending December 31, 1998, 1999, 2000, 2001 and 2002. See “Independent Auditors” and “Risk Factors — Our former independent public accountant, Arthur Andersen LLP, has been found guilty of U.S. federal obstruction of justice charges and you are unlikely to be able to exercise effective remedies against such a firm in any legal action.” The financial data for the nine months ended September 30, 2002 and 2003 were derived from our unaudited consolidated financial statements included in our amended Quarterly Report on Form 10-Q/A for the quarter ended September 30, 2003, filed November 24, 2003 and include, in the opinion of management, all normal and recurring adjustments necessary to present fairly the data for such periods. Our results for the nine months ended September 30, 2003 are not necessarily indicative of the results to be expected for the fiscal year ending December 31, 2003. The following data should be read in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our consolidated financial statements and notes included in our Annual Report on Form 10-K for the year ended December 31, 2002 and our amended Quarterly Report on Form 10-Q/A for the quarter ended September 30, 2003, filed November 24, 2003, which are incorporated by reference in this offering memorandum.

      We adopted Statement of Financial Accounting Standards (“FAS”) No. 145. “Rescission of FASB Statements No. 4, 44 and 64, Amendment of FASB Statement No. 13, and Technical Corrections” as of January 1, 2003. The adoption of FAS No. 145 retroactively changes guidance related to the reporting of gains and losses from extinguishment of debt as extraordinary items. The effect of FAS No. 145 on the Company’s statement of operations data for the five years ended December 31, 2002 is for amounts previously recorded as “Extraordinary loss on early extinguishment of debt” to instead be recorded as a component of “Other income, net”. We have reclassified extraordinary loss of $216, net of tax benefit of $72, for the year ended December 31, 2000. There were no extraordinary items in the years ended December 31, 2002, 2001, 1999 and 1998.

														Nine Months Ended
	Fiscal Year Ended December 31,													September 30,
	1998		1999		2000			2001			2002			2002			2003
	(in thousands, except per share data)
Consolidated Statement of Operations Data:
Total revenues	$	41,969	$	68,820	$	91,484		$	87,978		$	93,844		$	70,242		$	76,292
Total cost of revenues		4,884		8,502		13,101			17,816			16,970			12,752			14,270
Gross profit		37,085		60,318		78,383			70,162			76,874			57,490			62,022
Total operating expenses		34,486		52,801		79,660			84,030			77,021			57,942			60,724
Operating (loss) income		2,599		7,517		(1,277	)		(13,868	)		(147	)		(452	)		1,298
Net income (loss)	$	6,100	$	6,195	$	1,126		$	(11,154	)	$	2,201		$	1,448		$	2,515
Net income (loss) per common and potential common share: diluted	$	0.37	$	0.36	$	0.07		$	(0.67	)	$	0.12		$	0.08		$	0.14
Weighted average common and potential common shares outstanding: diluted		16,200		16,722		16,746			16,683			17,627			17,749			17,917

	As of December 31,										As of September 30,
	1998		1999		2000		2001		2002		2003
	(in thousands)
Consolidated Balance Sheet Data:
Cash, cash equivalents and marketable securities	$	56,619	$	63,569	$	63,251	$	68,344	$	73,670	$	75,933
Working capital		47,913		55,213		54,131		48,965		56,975		56,607
Total assets		67,981		89,787		102,276		102,480		105,930		119,000
Long-term debt, net of current portion		242		2,064		—		—		—		—
Redeemable convertible preferred stock		11,598		11,723		—		—		—		—
Total stockholder’s equity	$	41,213	$	52,476	$	70,746	$	63,507	$	68,936	$	77,581

Ratio of Earnings to Fixed Charges

     Set forth below is information concerning our ratio of earnings to fixed charges on a consolidated basis for the periods indicated:

												Nine Months
												Ended
	Fiscal Year Ended December 31,											September 30,
	1998		1999			2000		2001		2002		2002		2003
Ratio of earnings to fixed charges		10.8		—	(A)		2.6		8.2		4.3		2.8		3.1

(A)  The pre-tax loss from continuing operations for the year ended December 31, 1999 is not sufficient to cover fixed charges by a total of approximately $10.7 million. As a result, the ratio of earnings to fixed charges has not been computed for this period.

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RISK FACTORS

     An investment in the notes involves significant risks. You should carefully consider the following risk factors in conjunction with the other information contained and incorporated by reference in this prospectus before purchasing the notes.

Risks Related to Our Business

Our future operating results are uncertain.

     Prior to 2001, we marketed and sold our products primarily in the performance management market. In 2001, our product functionality was expanded to include both fault and performance management features to penetrate the fault management market. While sales of our fault and application products were approximately 30% of our license revenues for the fiscal quarter ended September 30, 2003, we still have a limited operating history in this expanded market upon which to evaluate our business. The integrated fault and performance market is highly competitive and rapidly evolving. Additionally, many of our competitors in this new market have a longer operating history and greater resources. Our limited operating history, intense competition in the market, and an uncertain economic climate make the accurate prediction of future results of operations difficult or impossible.

     In addition to sales of our eHealth® Suite, we will continue to sell products originally sold by netViz Corporation (“netViz”) that enable customers to visualize business processes and map relationships within the supporting technology infrastructure through data-driven icons, namely icons that change color, shape or other characteristics based on underlying data. We have a limited operating history in this market, making the accurate prediction of future results of operations difficult or impossible.

     Our future operating results must be considered in light of these factors.

Failure to successfully integrate netViz and future acquisitions may adversely impact our business.

     In July 2003, we completed the acquisition of netViz, a developer of software that enables customers to visualize business processes and map relationships within the supporting technology infrastructure through data-driven icons. The acquisition of netViz provides us the opportunity to integrate the netViz products and our existing products and to continue to market and sell the netViz products as a distinct product set. Additionally, we must integrate the netViz personnel, manage operations and personnel in multiple locations, and retain netViz customers. Our efforts to integrate netViz may not be successful, which could adversely impact our business. Future acquisition targets will likely present integration challenges similar to the challenges encountered in connection with the acquisition of netViz. The netViz acquisition and future acquisitions, if any, therefore may adversely impact our business through:

• failure to successfully integrate the acquired products;

• failure to successfully integrate personnel and management structures;

• failure to retain key customers;

• loss of key employees;

• failure to effectively control costs associated with the integration;

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• failure to meet expected timelines for product development and commercialization; and

• exposure to liabilities of the acquired company that were not known or accurately evaluated by us prior to consummating the acquisition.

Even if our acquisitions are fully and successfully integrated, we may not fully realize all of the expected benefits of such acquisitions, including expected financial results or expected benefits to our product line.

Failure to successfully integrate new technologies may adversely impact our business.

     During the third fiscal quarter of 2003, we completed the acquisition of netViz and entered into a license agreement with Tavve, Inc. (“Tavve”) to acquire Tavve’s technology relating to root cause analysis and discovery of layers 2 and 3 of the network topology. We plan to integrate the netViz technology, the eHealth® Suite technology, and the Tavve technology to enable customers to employ data-driven icons to visualize and take action on the critical relationships between business processes, application services, and network and system infrastructures. The market for this integrated product is at an early stage of development and is evolving, thereby making it difficult to assess:

• the size of the market;

• the competitive landscape;

• the appropriate features and prices for products to address this market;

• the optimal distribution and marketing strategy; and

• the market that will develop and the impact of large competitors within the market.

     Failure to successfully market and sell our integrated product may adversely impact our business.

We cannot ensure that our revenues will grow or that we will continue to be profitable.

     We have expended considerable resources to the research and development of new technologies and new or improved product features that have enabled us to retain existing customers and penetrate new markets both in the United States and internationally. This investment in product development allowed us to achieve revenue growth and profitability for the fiscal quarter ended September 30, 2003. Despite our results in the third fiscal quarter of 2003, we cannot ensure that we can generate revenue growth on a quarterly or annual basis, or that we can achieve or sustain any revenue growth in the future.

     In an effort to retain profitability and adequately fund research and development, we continue to work to reduce our operating expenses while maintaining funding for product development. However, competition in the marketplace may require us to increase our operating expenses in the future in order to:

• fund higher levels of research and development;

• increase our sales and marketing efforts;

• develop new distribution channels;

• broaden our customer support capabilities; and

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• respond to unforeseeable economic or business circumstances.

     To the extent that increases in our operating expenses precede or are not followed by increased revenues, our profitability will be at risk.

Our quarterly operating results may fluctuate.

     We are likely to experience significant fluctuations in our quarterly operating results caused by many factors, including:

• changes in the demand for our products by customers or groups of customers;

• the timing, composition, and size of orders from our customers, including the tendency for significant bookings to occur in the final two weeks of each fiscal quarter;

• difficulties penetrating new markets for our products;

• costs associated with the integration of acquired companies and/or new technologies;

• our customers’ spending patterns and budgetary resources for our products;

• geopolitical conditions in the world;

• the success of our new customer generation activities;

• introductions or enhancements of products, or delays in the introductions or enhancements of products, by us or our competitors;

• changes in our pricing policies or those of our competitors;

• changes in the distribution channels through which our products are sold;

• our success in anticipating and effectively adapting to developing markets and rapidly changing technologies;

• our success in attracting, retaining, and motivating qualified personnel;

• the publication of opinions about us and our products, or our competitors and their products, by industry analysts or others;

• changes in general economic conditions; and

• changes in accounting rules, such as recording expenses for employee stock option grants.

     Though our service revenues have been increasing as a percentage of total revenues, we do not have a significant ongoing revenue stream that may mitigate quarterly fluctuations in operating results.

     Due to all of the foregoing factors, we believe that our quarterly operating results are likely to vary significantly in the future. Therefore, in some future quarter our results of operations may fall below the expectations of securities analysts and investors. In such event, the trading price of our common stock will likely suffer.

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Our success is dependent upon sales to telecommunication carriers, service providers, and enterprise customers.

     We derive and likely will continue to derive a significant portion of our revenues from the sales of our products to telecommunication carriers, service providers, and enterprise customers. These markets worldwide have suffered from a turbulent economy during 2002 and 2003. We have been negatively affected by the general weakness in capital spending within the aforementioned markets, particularly in the telecommunications industry. The volume of sales of our products and services to telecommunication carriers, service providers, and enterprise customers may increase at a slower rate than we expect, or our sales to these customers may decrease.

The market for application performance management software is emerging.

     The market for our application performance management software is in an early stage of development. Targeting this market is central to the development and marketing of our products, but this market is emerging, and it is difficult to assess:

• the size of the application performance management market;

• the appropriate features and prices for products to address this market;

• the optimal distribution strategy; and

• the market that will develop and the impact of large competitors within the market.

     Currently, this market is very competitive and we are in direct competition with larger companies that have substantially greater resources to fund the development of competitive products and the creation and maintenance of direct and indirect sales channels. The rapidly evolving application performance market and the continued presence of larger companies in this market may impact our ability to retain or increase our market share.

The market for application availability and performance management software is emerging.

     The market for our application availability and performance products is in an early stage of development. Although the rapid expansion and increasing complexity of computer applications, systems, and networks in recent years have increased the demand for fault and performance management software products, the awareness of, and the demand for, an integrated fault and performance solution is a recent development, and therefore it is difficult to assess:

• the size of this market;

• the appropriate features and prices for products to address this market;

• the optimal distribution strategy; and

• the market that will develop and the impact of large competitors within the market.

     The development of this market and our growth will depend significantly upon the desire and success of telecommunication carriers, managed services providers, and enterprise customers to integrate availability and performance management functionality into their applications, systems, and networks. Moreover, this market is very competitive and we compete directly with larger companies that have substantially greater resources to fund the development of competitive products and the creation and

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maintenance of direct and indirect sales channels. The integration of availability and performance management functionality into the applications, systems, and networks of telecommunication carriers, managed services providers, and enterprise customers and the presence of larger competitors in this market may impact our ability to retain or increase our market share.

The markets for our products are intensely competitive and rapidly evolving.

     We sell software products designed to help companies effectively manage their applications, systems, and networks. We offer an “end-to-end” product solution to manage the IT infrastructure, and therefore compete both with companies that market comprehensive products to manage the IT infrastructure and with companies that market products for particular segments of the IT infrastructure (e.g. applications). The markets for our products are intensely competitive and rapidly evolving. Our competitors include:

• application performance software vendors;

• fault management software vendors;

• IT visualization software vendors;

• report toolset niche vendors;

• enterprise management software, framework and platform providers;

• software vendors providing service assurance for the wireless market;

• large, well-established management framework companies that have developed network or application management platforms;

• developers of network element management solutions;

• probe vendors;

• telecommunications vendors;

• system agent vendors; and

• vendors that provide, as a service, some of the functionality of our products.

     We expect competition to persist, increase, and intensify in the future, which will likely result in price competition within our relevant market. If we do not provide products that achieve success in our market in the short term, we could suffer an insurmountable loss in market share and brand name acceptance. We cannot ensure that we will compete effectively with current and future competitors.

Market acceptance of our eHealth® products and services is critical to our success.

     We currently derive significant revenues from the sale of eHealth® Suite family of products and services, and we expect that revenues from these products and services will continue to account for a significant portion of our revenues in the foreseeable future. Broad market acceptance of these products and services is critical to our future success. We cannot ensure that market acceptance of our eHealth® Suite family of products and services will increase or even remain at current levels. Factors that may affect the market acceptance of our products and services include:

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• the availability and price of competing integrated solutions, products and technologies;

• the demand for integrated, as opposed to stand-alone, solutions; and

• the success of our sales efforts and those of our marketing partners.

     Moreover, if demand for integrated fault and performance management software products and services increases, we anticipate that our competitors will introduce additional competitive products and services and new competitors could enter our market and offer alternative products and services resulting in decreased market acceptance of our products and services.

Market acceptance of our netViz products is critical to our success.

     We market and sell netViz products and services. Our revenue is derived primarily from the sale of eHealth® Suite family of products and services, but revenue derived from the sale of netViz products and services constitutes an important component of our quarterly and annual results. Market acceptance of the netViz products and services is critical to our future success. We cannot ensure that market acceptance of netViz products and services will increase or even remain at current levels. Factors that may affect the market acceptance of netViz products and services include:

• the availability and price of competitive products and services;

• the ability of others to develop products and services that meet the needs of the market;

• the demand for data-driven visualization software; and

• the success of our sales efforts and those of our channel partners.

     Moreover, if demand for data-driven visualization products increases, we anticipate increased competition in the market from existing and new competitors that may enter our market and offer alternative products resulting in decreased market acceptance of our products.

We may need future capital funding.

     We plan to continue to expend substantial funds on the continued development, marketing, and sale of the eHealth® Suite family of products. We had approximately $75.5 million in short term investments (cash, cash equivalents and marketable securities), excluding restricted cash totaling $0.4 million, as of September 30, 2003. Notwithstanding the foregoing, we cannot ensure that our existing capital resources and any funds that may be generated from future operations together will be sufficient to finance our future operations or that other sources of funding will be available on terms acceptable to us, if at all. In addition, future sales of substantial amounts of our securities in the public market could adversely affect prevailing market prices and could impair our future ability to raise capital through the sale of our securities.

We must introduce product enhancements and new products on a timely basis.

     Because of rapid technological change in the software industry, potential changes in the architecture of the IT infrastructure, changes in the software markets in which our product and services are sold, and changes in industry standards, the market acceptance of updated versions of our eHealth® Suite is difficult to estimate. We cannot ensure that:

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• we will successfully develop and market enhancements to our eHealth® Suite or successfully develop new products that respond to technological changes, evolving industry standards, or customer requirements;

• we will not experience difficulties that could delay or prevent the successful development, introduction, and sale of enhancements or new products; or

• enhancements or new products will adequately address the requirements of the marketplace and achieve market acceptance.

The need for our products may decrease if manufacturers incorporate our product features into their product offerings.

     Our products manage the performance of computer applications, systems, and networks. Presently, manufacturers of both hardware and software have not implemented these management functions into their products in any significant manner. These products typically include operating systems, workstations, network devices, and software. If manufacturers begin to incorporate these management functions into their products, this may decrease the value of our products and have a substantial adverse impact on our business.

Current geopolitical instability and the continuing threat of domestic and international terrorist attacks may adversely impact our revenues.

     International tensions, exacerbated by the war in Iraq and the war against global terrorism, contribute to an uncertain political and economic climate, both in the United States and globally, which may affect our ability to generate revenue on a predictable basis. As we sell products both in the United States and internationally, the threat of future terrorist attacks may adversely affect our business. In addition, as a result of the United States’ role in the war against global terrorism, products produced by U.S. companies may experience boycott or backlash, which may adversely affect our business.

Our common stock price could experience significant volatility.

     The market price of our common stock has fluctuated widely and may continue to do so. For example, during fiscal year 2002 the closing sale price of our stock ranged from a high of $24.62 per share to a low of $4.83 per share, and, during fiscal year 2003, the closing sale price of our stock ranged from a high of $22.84 per share to a low of $6.60 per share. Many factors could cause the market price of our common stock to rise and fall. These factors include:

• variations in our quarterly operating results;

• announcements of technological innovations or new products by us or our competitors;

• introduction of new products or new pricing policies by us or our competitors;

• announcements by us or our competitors of significant customer orders;

• acquisitions or strategic alliances by us or others in our industry;

• announcement by the government or other agencies regarding the economic health of the United States and the rest of the world;

• the hiring or departure of key personnel;

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• changes in the software industry cycle;

• changes in market valuations of companies within the software industry; and

• changes in estimates of our performance or recommendations by financial analysts.

     In addition, the financial markets have experienced significant price and volume fluctuations that have particularly affected the market prices of equity securities of many high technology companies and that often have been unrelated to the operating performance of such companies or have resulted from the failure of the operating results of such companies to meet market expectations in a particular quarter. Broad market fluctuations or any failure of our operating results in a particular quarter to meet market expectations may adversely affect the market price of our common stock, leading to an increased risk of securities class action litigation. Such litigation could result in substantial costs and a diversion of our attention and resources.

Our industry is subject to rapid technological change. Our success depends upon maintenance of standard protocols.

     The software industry is characterized by:

• rapid technological change;

• frequent introductions of new products;

• changes in customer demands; and

• evolving industry standards.

     The introduction of products embodying new technologies and the emergence of new industry standards can render existing products and integrated product solutions obsolete and unmarketable. While we actively work to develop products that operate with standard protocols, any change in industry standards or the emergence of new network technologies could affect the compatibility of our products, which in turn could affect the demand for, or the pricing of, our products and services.

Our success depends upon our ability to attract and retain valuable channel partners.

     Our distribution strategy is to develop multiple distribution channels, including sales through:

• strategic marketing partners;

• value added resellers;

• system integrators;

• telecommunication carriers;

• original equipment manufacturers; and

• independent software vendors and international distributors.

     We have developed a number of these relationships and intend to continue to develop new “channel partner” relationships. We have focused on identifying and developing our key distribution

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partners worldwide to maximize the success of our indirect sales. As part of this process, we have decreased the total number of distributors selling our products and services, but have sought to increase the quality and focus of our most valuable distributors through improved training and development programs. Our success will depend in large part on our development of these more focused distribution relationships and on the performance and success of other third parties that distribute our products and services, particularly telecommunication carriers and other network service providers. We sell our products and services in the United States through both direct sales to customers and indirect sales to customers through our channel partners. Outside the United States, we sell our products and services primarily through indirect sales via our channel partners. Our international channel partners are located in Europe, the Middle East, Africa, Asia, and North and South America and are subject to local laws, regulations, and customs that may make it difficult to assess accurately the potential revenues that can be generated from a particular market. Our success depends upon our ability to attract and retain valuable channel partners and to accurately assess the size and vitality of the markets in which our products and services are sold. While we have implemented policies and procedures to achieve this, we cannot predict the extent to which we are able to attract and retain financially stable, motivated channel partners. Additionally, our channel partners may not be successful in marketing and selling our products and services. We may:

• fail to attract important and effective channel partners;

• fail to penetrate our targeted market segments through the use of channel partners; or

• lose any of our channel partners, as a result of competitive products and services offered by other companies, products and services developed internally by these channel partners, their financial insolvency or otherwise.

We may fail to manage successfully the growth of our business.

     We have experienced employee turnover in our sales and operations personnel, our products and services have become increasingly complex, and our distribution channels are being developed and expanded. The rapid evolution of our markets and the increasing complexity of our products and services have placed, and is likely to continue to place, significant strains on our administrative, operational, and financial resources and increase demands on our internal systems, procedures, and controls that may impact our ability to grow our business.

Our success depends on our retention of key personnel.

     Our performance depends substantially on the performance of our key technical, senior management, and sales and marketing personnel. We may lose the services of any of such persons. Despite current economic conditions, we experience intense competition for such personnel and are constantly exploring new avenues for attracting and retaining key personnel. However, we cannot ensure that we will successfully attract, assimilate, or retain highly qualified technical, managerial or sales and marketing personnel in the future.

Our failure to continue to expand into international markets could harm our business.

     We intend to continue to expand our operations outside of the United States and enter additional international markets, primarily through the establishment of channel partner arrangements. As mentioned above, we have concentrated recently on developing more focused relationships with fewer key distributors. We expect to commit additional time and development resources to customizing our

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products and services for selected international markets and to developing international sales and support channels. We cannot ensure that such efforts will be successful.

     We face certain difficulties and risks inherent in doing business internationally, including, but not limited to:

• costs of customizing products and services for international markets;

• dependence on independent resellers;

• multiple and conflicting regulations;

• exchange controls;

• longer payment cycles;

• unexpected changes in regulatory requirements;

• import and export restrictions and tariffs;

• difficulties in staffing and managing international operations;

• greater difficulty or delay in accounts receivable collections;

• potentially adverse tax consequences;

• compliance with a variety of laws outside the United States;

• the impact of possible recessionary environments in economies outside the United States;

• political and economic instability; and

• exposure to foreign currency fluctuations.

     Our successful expansion into certain countries will require additional modification of our products and services, particularly national language support. Currently, the majority of our current export sales are denominated in U.S. dollars. To the extent that international sales continue to be denominated in U.S. dollars, an increase in the value of the U.S. dollar relative to other currencies could make our products and services more expensive and, therefore, potentially less competitive in international markets. In certain European Union countries, however, we have introduced pricing in Euros. While we do maintain a foreign currency hedging program on accounts receivable, to the extent that future international sales are denominated in foreign currency, our operating results will be subject to risks associated with foreign currency fluctuation. Additionally, as we increase our international sales, seasonal fluctuations in revenue generation resulting from lower sales that typically occur during the summer months in Europe and other parts of the world may affect our total revenues.

Our failure to protect our intellectual property rights may harm our competitive position.

     Our success depends significantly upon our proprietary technology. We rely on a combination of patent, copyright, trademark and trade secret laws, product and services agreements, non-disclosure agreements, and other contractual provisions to establish, maintain, and protect our proprietary rights. These means afford only limited protection.

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     We cannot ensure that patents will issue from our pending applications or from any future applications or that, if issued, any claims allowed will be sufficiently broad to protect our technology. In addition, we cannot ensure that any patents that have been or may be issued will not be challenged, invalidated or circumvented, or that any rights granted by those patents would protect our proprietary rights. Failure of any patents to protect our technology may make it easier for our competitors to offer equivalent or superior technology.

     We have sought also to protect our intellectual property through the use of copyright, trademark, and trade secret laws. Despite our efforts to protect our proprietary rights, unauthorized parties may attempt to copy aspects of our products or services, or to obtain and use information that we regard as proprietary. Third parties may also independently develop similar technology without breach of our proprietary rights.

     In addition, the laws of some foreign countries do not protect proprietary rights to as great an extent as do the laws of the United States. Furthermore, some of our products are licensed under end user license agreements (also known as shrinkwrap licenses) that are not signed by licensees. The law governing the enforceability of shrinkwrap license agreements is not settled in most jurisdictions. There can be no guarantee that we would achieve success in enforcing one or more shrinkwrap license agreements if we sought to do so in a court of law.

Our failure to continue to license certain technologies from third parties may impact our ability to deliver our products on competitive terms.

     We license from third parties, generally on a non-exclusive basis, certain technologies used in our products, including the root cause analysis and discovery of layer 2 and 3 of the network topology technology from Tavve, that we expect to integrate with our technology to expand the functionality of our products. The incorporation of third party technology is an important component of our product development and the termination of any such licenses, or the failure of the third-party licensors to adequately maintain or update their products, could result in delay in our shipment of certain of our products while we seek to implement technology offered by alternative sources, and any required replacement licenses could prove costly. While it may be necessary or desirable in the future to obtain other licenses relating to one or more of our products or relating to current or future technologies, we cannot ensure that we will be successful in doing so on commercially reasonable terms or at all.

     We recently started shipping Oracle® software exclusively as the database on which the eHealth® Suite runs. While we believe the switch to Oracle will make our products even more robust and we are comfortable with the choice of Oracle as a database vendor, there is no guarantee that our customers will readily accept this change. As with any vendor, there also is no guarantee that Oracle will be able to continue to deliver to us an acceptable database solution, nor that the product Oracle delivers will continue to interface effectively with our eHealth® Suite family of products.

Intellectual property infringement claims would harm our business.

     Although we do not believe that we are infringing upon the intellectual property rights of others, claims of infringement are becoming increasingly common as the software industry develops legal protections for software products. Litigation may be necessary to protect our proprietary technology, and third parties may assert infringement claims against us with respect to their proprietary rights. Any claims or litigation can be time-consuming and expensive regardless of their merit. Infringement claims against us can cause product release delays, require us to redesign our products, or require us to enter into royalty or license agreements which may not be available on terms acceptable to us or at all.

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We may not have sufficient protection against product liability claims.

     Because our products are used by our customers to identify and predict current and future application, system, and network problems and to avoid failures of the IT infrastructure to support critical business functions, design defects, software errors, misuse of our products, incorrect data from network elements, or other potential problems, within or out of our control, may arise from the use of our products and could result in financial or other damages to our customers. Our license agreements with our customers typically contain provisions designed to limit our exposure to potential claims as well as any liabilities arising from such claims. As a matter of practice, our license agreements limit our liability in regards to product liability claims, and in many agreements, our maximum liability for product liability claims is limited to the equivalent of the cost of the products licensed under that agreement. However, any litigation or similar procedure related to a product liability claim may require considerable resources to be expended that could adversely affect our business and financial condition and decrease future revenues.

Our former independent public accountant, Arthur Andersen LLP, has been found guilty of U.S. federal obstruction of justice charges and you are unlikely to be able to exercise effective remedies against such firm in any legal action.

     Our consolidated financial statements and the related financial statement schedules as of December 31, 1998, 1999, 2000 and 2001, and for each of the four years in the period then ended, incorporated by reference in this prospectus, were audited by Arthur Andersen LLP. On March 14, 2002, Arthur Andersen was indicted on U.S. federal obstruction of justice charges arising from the U.S. federal government’s investigation of Enron Corporation. Arthur Andersen LLP served as our independent auditors until June 10, 2002. On June 10, 2002, we dismissed Arthur Andersen LLP and on June 11, 2002, we retained PricewaterhouseCoopers LLP as our independent auditors. On June 15, 2002, a jury returned with a guilty verdict against Arthur Andersen following a trial. In light of the jury verdict and the underlying events, on August 31, 2002, Arthur Andersen ceased operations and can no longer reissue its audit reports or provide its consent to include the financial statements to be included in this registration statement. Accordingly, Arthur Andersen has not performed any procedures in connection with the preparation and filing of this registration statement. Events arising out of the indictment and conviction will likely preclude Arthur Andersen from satisfying any claims arising from the provision of auditing services to us, including claims that may arise out of Arthur Andersen’s audit of financial statements incorporated by reference in this prospectus.

     We have incorporated the financial statements audited by Arthur Andersen in this prospectus in reliance of the relief provided by Rule 437 (a) of the Securities Act because we have not been able to file a written consent of Arthur Andersen with respect to inclusion of the financial statements for the fiscal years ended December 31, 1998, 1999, 2000 and 2001 in this registration statement. If the SEC ceases to accept financial statements from a prior period audited by Arthur Andersen for which Arthur Andersen will not reissue an audit report prior to the effectiveness of this registration statement or prior to the date on which our periodic reports are due, our ability to make timely filings with the SEC and access the capital markets could be impaired. In that case, we would not be able to make timely filings with the SEC or access the public capital markets unless another independent accounting firm were able to audit the financial statements originally audited by Arthur Andersen.

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Limitations on the effectiveness of controls.

     Our management, including the Chief Executive Officer and the Chief Financial Officer, does not expect that our disclosure controls or our internal controls will prevent all errors and intentional misrepresentations. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Further, the design of a control system must reflect that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues, if any, within the Company have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the control. The design of any system of controls also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions; over time, controls may become inadequate because of changes in conditions, or the degree of compliance with the policies or procedures may deteriorate. Because of the inherent limitations in a cost-effective control system, misstatements due to error or intentional conduct may occur and not be detected.

Risks Related to the Notes

We will increase our leverage as a result of the sale of the notes.

     In connection with the sale of the notes, we have incurred $86.25 million of indebtedness. As a result of this indebtedness, our interest payment obligations have increased. The degree to which we are now leveraged could adversely affect our ability to obtain further financing for working capital, acquisitions or other purposes and could make us more vulnerable to industry downturns and competitive pressures. Our ability to meet our debt service obligations will be dependent upon our future performance, which may be subject to the financial, business and other factors affecting our operations, many of which are beyond our control.

The notes are effectively subordinated to all of our secured indebtedness and all indebtedness of our subsidiaries.

     The notes are our unsecured senior obligations and are not guaranteed by any of our subsidiaries. Accordingly, the notes are effectively subordinated to all of our current and future secured indebtedness to the extent of the assets securing the indebtedness. Furthermore, our right to receive any distribution of assets of any subsidiary upon that subsidiary’s liquidation, reorganization or otherwise, is subject to the prior claims of creditors of that subsidiary, except to the extent we are also recognized as a creditor of that subsidiary. As a result, the notes are effectively subordinated to the claims of such creditors.

There are no restrictive covenants in the indenture relating to our ability to incur future indebtedness.

     The indenture governing the notes does not contain any financial or operating covenants or restrictions on the payment of dividends, the incurrence of indebtedness, transactions with affiliates, incurrence of liens or the issuance or repurchase of securities by us or any of our subsidiaries. We may therefore incur additional debt, including secured indebtedness senior to the notes. As part of our growth strategy, we potentially may use proceeds from the sale of the notes to finance future acquisitions of complementary businesses or technologies, which may cause us or our subsidiaries to incur significant additional indebtedness to which the notes would be subordinate.

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     The notes are obligations exclusively of Concord Communications, Inc. Our subsidiaries are separate and distinct legal entities. Our subsidiaries have no obligation to pay any amounts due on the notes or to provide us with funds for our payment obligations, whether by dividends, distributions, loans or other payments. In addition, any payment of dividends, distributions, loans or advances by our subsidiaries to us could be subject to statutory or contractual restrictions. Payments to us by our subsidiaries will also be contingent upon our subsidiaries’ earnings and business considerations.

Our debt service obligations may adversely affect our cash flow.

     A higher level of indebtedness increases the risk that we may default on our debt obligations. We cannot assure you that we will be able to generate sufficient cash flow to pay the interest on our debt or that future working capital, borrowings or equity financing will be available to pay or refinance such debt. If we are unable to generate sufficient cash flow to pay the interest on our debt, we may have to delay or curtail our research and development programs.

     The level of our indebtedness among other things, could:

• make it difficult for us to make payments on the notes;

• make it difficult for us to obtain any necessary financing in the future for working capital, capital expenditures, debt service requirements or other purposes;

• limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we compete; and

• make us more vulnerable in the event of a downturn in our business.

Our notes may not be rated or may receive a lower rating than anticipated by investors, which could cause a decline in the liquidity or market price of the notes.

     We do not intend to seek a rating on the notes and we believe it is unlikely the notes will be rated. However, if one or more rating agencies rates the notes and assigns the notes a rating lower than the rating expected by investors, or reduced their rating in the future, the market price of the notes and common stock may be adversely affected.

If we pay cash dividends on our common stock, the holders of notes may be deemed to have received a taxable dividend without the receipt of any cash.

     If we pay a cash dividend on our common stock, we are required under the indenture to adjust the conversion rate. As a result of the adjustment to the conversion rate, the holders of notes may be deemed to have received a taxable dividend subject to U.S. federal income tax without the receipt of any cash. See “Certain U.S. Federal Income Tax Consequences.”

If a conversion contingency is met, our earnings per share on a diluted basis could decrease as a result of the inclusion of all of the shares underlying the notes in the calculation of such earnings.

     The holders of the notes are entitled to convert the notes into shares of our common stock (or cash or a combination of cash and common stock, if we so elect), if, among other circumstances, the closing sale price of our common stock for at least 20 trading days in any 30 consecutive trading day period is equal to or greater than 120% of the conversion price in effect on that 30th trading day. Until

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this conversion contingency or another conversion contingency is met, the shares underlying the notes are not included in the calculation of our basic or diluted earnings per share. Should a conversion contingency be met, fully diluted earnings per share would be expected to decrease as a result of the inclusion of all of the underlying shares in the fully diluted earnings per share calculation.

We will have broad discretion with respect to the use of proceeds from the offering of notes.

     The net proceeds of the offering of notes to the initial purchaser on December 8, 2003 were approximately $82.9 million. Our management will retain broad discretion as to the use and allocation of the net proceeds. Accordingly, you will not have the opportunity to evaluate the economic financial and other relevant information that we may consider in the application of the net proceeds of the offering of notes.

We may not have the funds necessary to purchase the notes upon a designated event or other purchase date, as required by the indenture governing the notes.

     On December 15, 2008, December 15, 2013 and December 15, 2018, holders of the notes may require us to purchase their notes, which repurchase may be made for cash. In addition, holders may also require us to purchase their notes upon a designated event as described under “Description of Notes — Repurchase of Notes at Your Option Upon a Designated Event.” If we do not have or have access to sufficient funds to repurchase the notes, then we would not be able to repurchase your notes. If a repurchase event occurs, we expect that we would require third-party financing to repurchase the notes, but we cannot assure you that we would be able to obtain that financing on favorable terms or at all.

There is no active market for the notes and if an active trading market does not develop for these notes you may not be able to resell them.

     The notes are a new issue of securities for which there is currently no trading market. We do not intend to list the notes on any national securities exchange or to seek the admission of the notes for trading in the Nasdaq National Market. However, the notes are eligible for trading on the Nasdaq’s screen-based automated trading system known as PORTAL. We have been advised by the initial purchaser that following the completion of the offering, the initial purchaser currently intends to make a market in the notes. However, it is not obligated to do so and any market-making activities with respect to the notes may be discontinued at any time without notice. In addition, market-making activity will be subject to the limits imposed by law.

     Further, even if a market were to exist, the notes could trade at prices that may be lower than the initial offering price depending on many factors, including prevailing interest rates, the markets for similar securities, general economic conditions and our financial condition, performance and prospects. The liquidity of, and the trading market for, the notes may be adversely affected by general declines or disruptions in the market for non-investment grade debt.

The market price of our common stock is highly volatile, which could adversely affect the value of the notes.

     Because the notes are convertible into shares of our common stock, the factors which affect the market price of our common stock may also affect the value of the notes. See “Risk Factors – Our common stock price could experience significant volatility.”

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Securities we issue to fund our operations could dilute your ownership.

     We may decide to raise additional funds through a public or private debt or equity financing to fund our operations. If we raise funds by issuing equity securities, the percentage ownership of current stockholders, including the ownership that holders of the notes would have upon conversion, will be reduced, and the new equity securities may have rights prior to those of the common stock issuance upon conversion of the notes. We may not obtain sufficient financing on terms that are favorable to you and us.

USE OF PROCEEDS

     We will not receive any proceeds from the resale of the notes or the underlying common stock by selling securityholders.

DESCRIPTION OF NOTES

     The notes were issued under an indenture dated as of December 8, 2003, between Concord Communications, Inc., as issuer, and Wilmington Trust Company, a Delaware banking corporation, as trustee. Initially, the trustee will also be paying agent and conversion agent. The notes and the shares of common stock issuable upon conversion of the notes are covered by a registration rights agreement.

     You may request a copy of the notes, the indenture and the registration rights agreement from the trustee.

     The following description is a summary of the material provisions of the notes, the indenture and the registration rights agreement. It does not purport to be complete. This summary is subject to and is qualified by reference to all the provisions of the indenture, including the definitions of certain terms used in the indenture, and to all provisions of the registration rights agreement. Wherever particular provisions or defined terms of the indenture or form of note are referred to, these provisions or defined terms are incorporated in this prospectus by reference. We urge you to read the notes, the indenture, and the registration rights agreement, because they, and not this description, define the rights of each holder of the notes.

Brief Description of the Notes

     The notes:

• consist of an aggregate principal amount of $86.25 million;

• were sold at an issue price of 100% of the principal amount of the notes, which is $1,000 per note;

• bear interest at an annual rate of 3.0% of the principal amount, payable semi-annually, in arrears, on June 15th and December 15th of each year, commencing on June 15, 2004;

• accrue additional amounts if we fail to comply with certain obligations as set forth below under “— Registration Rights”;

• are our general unsecured obligations, ranking equally with all of our other existing and future unsecured senior indebtedness and senior in right of payment to any of our future subordinated indebtedness, and are effectively subordinated to any of our existing and future secured senior indebtedness to the extent of the assets securing such indebtedness and to the claims of all creditors of our subsidiaries;

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• may be converted by the holder into shares of our common stock initially at a conversion rate of 37.2148 shares of our common stock per $1,000 principal amount of notes, which represents an initial conversion price of approximately $26.87 per share, only in the following circumstances:

• during any conversion period if on each of at least 20 trading days in the period of 30 consecutive trading days ending on the first trading day of the conversion period, the closing sale price of our common stock exceeded 120% of the conversion price in effect on that 30th trading day of such period; a “conversion period” will be the period from and including the 30th trading day in a fiscal quarter to, but not including, the 30th trading day (or, if that day is not a trading day, then the next trading day) in the immediately following fiscal quarter;

• if we have called the notes for redemption; or

• upon the occurrence of specified corporate transactions described under “—Conversion Rights—Conversion Upon Specified Corporate Transactions.”

• are redeemable at our option in whole or in part beginning on December 15, 2008, at a redemption price equal to 100% of the principal amount of the notes plus accrued and unpaid interest (including additional amounts), if any, to, but not including, the redemption date;

• are subject at a holder’s option to repurchase by us upon a designated event of Concord, as described under “— Purchase of Notes at a Holder’s Option Upon a Designated Event”, and on December 15, 2008, December 15, 2013 and December 15, 2018, at a repurchase price equal to 100% of the principal amount of the notes plus accrued and unpaid interest (including additional amounts), if any, to but not including, the repurchase date;

• are eligible for trading on The PORTAL Market; and

• are due on December 15, 2023, payable in cash in an amount equal to $1,000 per note, plus accrued and unpaid interest (including additional amounts), if any, unless earlier converted, redeemed by us at our option or repurchased by us at your option.

     The indenture does not contain any financial covenants and does not restrict us from paying dividends, incurring additional indebtedness or issuing or repurchasing other securities. In addition, our subsidiaries are not restricted under the indenture from incurring additional indebtedness. The indenture also does not protect a holder of notes in the event of a highly leveraged transaction or a designated event, as defined below, of Concord, except to the extent described under “— Purchase of Notes at a Holder’s Option Upon a Designated Event” below.

     The notes are issued in book-entry form only in denominations of $1,000 principal amount and whole multiples thereof. Beneficial interests in the notes will be shown on, and transfers will be effected only through, records maintained by the Depository Trust Company, or its nominee (“DTC”), and any such interests may not be exchanged for certificated securities except in limited circumstances.

     A holder of notes may not sell or otherwise transfer the notes or the shares of common stock issuable upon conversion of the notes except in compliance with the provisions set forth below under “Transfer Restrictions” and “— Registration Rights.”

Interest

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     The notes bear interest at an annual rate of 3.0% from December 8, 2003. We will pay interest semi-annually in arrears in cash on June 15th and December 15th of each year, beginning June, 2004, to the holders of record at 5:00 p.m., New York City time, on the preceding June 1st and December 1st, respectively. Interest generally will be computed semi-annually on the basis of a 360-day year comprised of twelve 30-day months.

     There are certain exceptions to the preceding sentence:

• In general, we will not pay accrued interest on any notes that are converted into our common stock. See “— Conversion Rights.” If a holder of notes converts after a record date for an interest payment but prior to the corresponding interest payment date, the holder on the record date will receive on that interest payment date accrued and unpaid interest on those notes, notwithstanding the conversion of those notes prior to that interest payment date, because that holder will have been the holder of record on the corresponding record date. However, at the time that holder surrenders notes for conversion, the holder must pay to us an amount equal to the interest that has accrued and that will be paid on the related interest payment date. The preceding sentence does not apply, however, to a holder that converts notes that are called by us for redemption. Accordingly, if we elect to redeem notes and a holder of notes chooses to convert those notes on a date that is after a record date but prior to the corresponding interest payment date, the holder will not be required to pay us, at the time that holder surrenders those notes for conversion, the amount of interest it will receive on the interest payment date.

• We will pay interest to a person other than the holder of record on the record date if we elect to redeem the notes on a date that is after a record date but on or prior to the corresponding interest payment date. In this instance, we will pay accrued and unpaid interest (including additional amounts), if any, on the notes being redeemed to, but not including, the redemption date to the same person to whom we will pay the principal of those notes.

• We will pay interest to a person other than the holder of record on the record date if, in connection with a designated event, we elect a designated event purchase date that is after a record date but on or prior to the corresponding interest payment date. In this instance, we will pay accrued and unpaid interest (including additional amounts), if any, on the notes being purchased to, but not including, the designated event purchase date to the same person to whom we will pay the principal of those notes.

     At maturity, interest on the certificated notes will be payable at the principal corporate trust office of the trustee presently located at 1100 North Market Street, Rodney Square North, Wilmington, DE 19890.

     We will also pay additional amounts of interest on the notes under certain circumstances described below under “— Registration Rights.”

     Interest otherwise payable will cease to accrue on a note upon its repayment at maturity, conversion or purchase by us (including upon a designated event).

     Except as provided below, we will pay interest on:

• global notes to DTC in immediately available funds;

• any certificated notes having an aggregate principal amount of $5.0 million or less by check mailed to the holders of those notes; and

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• any certificated notes having an aggregate principal amount of more than $5.0 million by wire transfer in immediately available funds if requested in writing by the holders of those notes, otherwise by check mailed to the holders of these notes.

     We are not required to make any payment on the notes due on any day which is not a business day until the next succeeding business day. The payment made on the next business day will be treated as though it were paid on the original due date and no interest will be payable on the payment date for the additional period of time.

Ranking

     The notes are our general unsecured obligations, ranking equally in right of payment with all our existing and future unsecured senior indebtedness, and senior in right of payment to any of our future subordinated indebtedness. The notes are effectively subordinated to any of our existing and future secured senior indebtedness to the extent of the assets securing such indebtedness and to the claims of all creditors of our subsidiaries.

Conversion Rights

  General

     A holder may convert all or any portion of such holder’s outstanding notes, subject to the conditions described below, initially at a conversion rate of 37.2148 shares of common stock per $1,000 principal amount of the notes. This is equivalent to an initial conversion price of approximately $26.87. The conversion rate, and thus the conversion price, is subject to adjustment as described below. A holder may convert notes only in denominations of $1,000 principal amount and integral multiples thereof.

     A holder may surrender notes for conversion prior to the stated maturity only under the following circumstances:

• during any conversion period if on each of at least 20 trading days in the period of 30 consecutive trading days ending on the first trading day of the conversion period, the closing sale price of our common stock exceeded 120% of the conversion price in effect on that 30th trading day of such period; a “conversion period” will be the period from and including the 30th trading day in a fiscal quarter to, but not including, the 30th trading day (or, if that day is not a trading day, then the next trading day) in the immediately following fiscal quarter;

• if we have called those notes for redemption; or

• upon the occurrence of the specified corporate transactions discussed below.

     A “trading day” means a day during which trading in securities generally occurs on the Nasdaq National Market or, if our common stock is not quoted on the Nasdaq National Market, on the principal U.S. national or regional securities exchange on which our common stock is then listed or, if our common stock is not listed on a U.S. national or regional securities exchange, and not reported on the Nasdaq National Market, on the principal other market on which our common stock is then traded (provided that no day on which trading of our common stock is suspended on such exchange or other trading market will count as a trading day).

     Upon conversion, we have the right to deliver, in lieu of shares of our common stock, cash or a combination of cash and shares of our common stock, as described below under “— Conversion

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Procedures — Payment Upon Conversion.” For a discussion of the U.S. federal income tax consequences of conversion to a holder, see “Certain U.S. Federal Income Tax Consequences — Conversion into Common.”

     The conversion agent will, on our behalf, determine if the notes are convertible and notify the trustee and us accordingly. If a holder has exercised its right to require us to purchase its notes as described under “— Purchase of Notes at a Holder’s Option Upon a Designated Event,” the holder may convert its notes only if it withdraws its designated event purchase notice prior to 5:00 p.m., New York City time, on the business day immediately preceding the applicable purchase date.

     We will not issue fractional shares of our common stock upon the conversion of the notes. Instead, we will pay the cash value of such fractional shares based upon the closing sale price of our common stock on the trading day immediately prior to the conversion date.

  Conversion Upon Satisfaction of Common Stock Price Condition

     A holder has the right to convert any of its notes during any conversion period if on each of at least 20 trading days in the period of 30 consecutive trading days ending on the first trading day of the conversion period, the closing sale price of our common stock exceeded 120% of the conversion price in effect on that 30th trading day of such period; a “conversion period” will be the period from and including the 30th trading day in a fiscal quarter to, but not including, the 30th trading day (or, if that day is not a trading day, then the next trading day) in the immediately following fiscal quarter.

     The initial conversion trigger price per share of our common stock is $32.25. The conversion trigger price reflects the initial conversion price per share of our common stock multiplied by 120%.

     The “closing sale price” of any share of common stock on any date means the closing sale price of a share of common stock (or if no closing sale price is reported, the average of the bid and ask prices or, if there is more than one bid or ask price, the average of the average bid and the average ask prices) on that date as reported by the Nasdaq National Market or, if the common stock is not quoted on the Nasdaq National Market, as reported on a national securities exchange. If our common stock is not listed for trading on a national securities exchange and not quoted on the Nasdaq National Market on the relevant date, the “closing sale price” will be the last quoted bid for our common stock in the over-the-counter market on the relevant date as reported by the National Quotation Bureau or similar organization. If our common stock is not so quoted, the “closing sale price” will be the average of the midpoint of the last bid and ask prices for our common stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by us for this purpose.

  Conversion Upon Notice of Redemption

     A holder has the right to convert any of its notes that we have called for redemption at any time prior to 5:00 p.m., New York City time, on the day that is two business days prior to the redemption date, even if the notes are not otherwise convertible at such time. If a holder already has delivered a repurchase notice or a designated event purchase notice with respect to a note, however, the holder may not surrender that note for conversion until the holder has withdrawn the notice in accordance with the indenture.

  Conversion Upon Specified Corporate Transactions

     A holder has the right to convert any of its notes in the event:

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• we distribute to all holders of our common stock certain rights or warrants entitling them to subscribe for or purchase, for a period expiring within 60 days, common stock at less than the closing sale price of the common stock on the business day immediately preceding the announcement of such distribution;

• we elect to distribute to all holders of our common stock, cash or other assets, debt securities or certain rights or warrants to purchase our securities, including the declaration of any cash dividends, payable quarterly or otherwise, which distribution has a per share value exceeding 10% of the closing sale price of the common stock on the business day immediately preceding the declaration date for the distribution; or

• a designated event (as defined under “Purchase of Notes at a Holder’s Option Upon a Designated Event”) occurs.

       In any such event, a holder may convert any of its notes at any time after we notify holders of such event:

• in the case of a distribution, until the earlier of 5:00 p.m., New York City time, on the business day immediately preceding the ex-dividend date or the date of our announcement that the distribution will not take place; or

• in the case of a designated event, within 20 business days of the designated event notice.

     We will notify holders at least 15 business days prior to the ex-dividend date for the distribution or within 15 business days following the occurrence of the designated event, as the case may be. In the case of a distribution, a holder of notes may not convert any of its notes if, as a holder of notes, the holder will otherwise participate in the distribution without conversion.

     In addition, if we are party to a consolidation, merger or binding share exchange pursuant to which our common stock would be converted into cash, securities or other property, a holder may surrender notes for conversion at any time from and after the date which is 15 calendar days prior to date announced by us as the anticipated effective date of the transaction until 15 calendar days after the actual date of the transaction. If we are a party to a consolidation, merger or binding share exchange pursuant to which our common stock is converted into cash, securities or other property, then at the effective time of the transaction, the right to convert the notes into common stock will be changed into a right to convert the notes into the kind and amount of cash, securities or other property which the holder would have received if the holder had converted such notes immediately prior to the transaction. If the transaction also constitutes a designated event, the holder can require us to purchase all or a portion of its notes as described under “— Purchase of Notes at a Holder’s Option Upon a Designated Event.”

Conversion Procedures

   General

     We will not issue fractional shares of common stock upon conversion of the notes. Instead, we will pay the cash value of such fractional shares based upon the closing sale price of our common stock on the trading day immediately prior to the conversion date. Except as provided in the next paragraph, upon conversion, we will not make any payment or other adjustment for accrued and unpaid interest (including additional amounts), if any, on the notes. Accrued and unpaid interest, if any, will be deemed to be paid in full with the shares of our

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common stock issued or cash paid upon conversion, rather than cancelled, extinguished or forfeited.

     If a holder of notes converts after a record date for an interest payment but prior to the corresponding interest payment date, the holder on the record date will receive on that interest payment date interest (including additional amounts), if any, accrued and unpaid on those notes, notwithstanding the conversion of those notes prior to that interest payment date, because that holder will have been the holder of record on the corresponding record date. However, at the time the holder surrenders any notes for conversion, it must pay us an amount equal to the interest (including additional amounts), if any, that have accrued and will be paid on the notes being converted on the interest payment date. The preceding sentence does not apply to notes that are converted after being called by us for redemption. Accordingly, if we elect to redeem notes and a holder of notes chooses to convert those notes on a date that is after a record date but prior to the corresponding interest payment date, the holder will not be required to pay us, at the time that holder surrenders those notes for conversion, the amount of interest it will receive on the interest payment date.

     Except as described under “— Conversion Rate Adjustments,” we will not make any payment or other adjustment for dividends on any common stock issued upon conversion of the notes.

     If a holder of notes converts, we will pay any documentary, stamp or similar issue or transfer tax due on the issue of shares of our common stock upon the conversion, unless the tax is due because such holder requests the shares to be issued or delivered to another person, in which case such holder will pay that tax.

  Procedures

     To convert interests in a global note, a holder must deliver to DTC the appropriate instruction form for conversion pursuant to DTC’s conversion program.

     To convert a certificated note, a holder must:

• complete and manually sign the conversion notice on the back of the note (or a facsimile thereof);

• deliver the completed conversion notice and the note to be converted to the specified office of the conversion agent;

• if required by the conversion agent, furnish appropriate endorsements and transfer documents;

• pay all funds required, if any, relating to interest on the note to be converted to which it is not entitled; and

• pay all taxes or duties, if any, as described in the preceding paragraph.

     The conversion date will be the date on which all of the foregoing requirements have been satisfied. The notes will be deemed to have been converted immediately prior to 5:00 p.m., New York City time, on the conversion date.

     If we elect to settle in common stock only, a certificate for the number of full shares of common stock into which the notes are converted (and cash in lieu of fractional shares) will be delivered to such holder, assuming all of the other requirements have been satisfied by such holder, as

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soon as practicable after we issue our notification of our chosen method of settlement, which we must issue on the date that is three trading days following receipt of the conversion notice. If we elect to settle in cash or a combination of cash and common stock, the cash and, if applicable, a certificate for the number of full shares of common stock into which the notes are converted (and cash in lieu of fractional shares) will be delivered to such holder, assuming all of the other requirements have been satisfied by such holder, on the 31st trading day following receipt of the conversion notice, unless the holder submits its conversion notice within 30 trading days prior to maturity.

     In the event of a designated event, if a holder has submitted any or all of its notes for repurchase, a holder’s conversion rights on the notes so subject to repurchase will expire at 5:00 p.m., New York City time, on the business day immediately preceding the repurchase date, unless we default in the payment of the repurchase price. If a holder has submitted any note for repurchase, such note may be converted only if a holder submits a notice of withdrawal, and if the note is a global note, complies with appropriate DTC procedures. To the extent that we have a rights plan in effect upon conversion of the notes into common stock, a holder will receive, in addition to the common stock, the rights under the rights plan whether or not the rights have separated from the common stock at the time of applicable conversion, subject to limited exceptions. The Company does not currently have a rights plan.

  Payment Upon Conversion

     In lieu of delivery of shares of our common stock, and pursuant to the procedures described below, we may elect to deliver to holders surrendering notes either cash, or a combination of cash and shares of our common stock or a combination thereof.

     Conversion On or Prior to 31 Trading Days Prior to Maturity. If we receive a holder’s conversion notice on or prior to the day that is 31 trading days prior to the stated maturity of the notes (the “final notice date”), the following procedures will apply:

• We will notify the holder through the trustee, at any time on the date that is three trading days following receipt of the holder’s conversion notice (the “settlement notice period”), of the method we choose to settle our obligation upon conversion (the “conversion obligation”). Specifically, we will indicate whether settlement will be 100% in common stock, 100% in cash or a combination of cash and common stock. If we elect to settle our conversion obligation in a combination of cash and common stock, we will specify both the percentage of the principal amount of notes surrendered for conversion that we will pay in cash and the percentage of the excess (the “excess amount”), if any, of the conversion obligation relating to the notes surrendered for conversion over the principal amount of the notes surrendered for conversion that we will pay in cash. The remainder of our conversion obligation will be settled in shares of our common stock (except that we will pay cash in lieu of issuing any fractional shares). We will treat all holders converting on the same trading day in the same manner. We will not, however, have any obligation to settle the excess conversion obligation arising on different trading days in the same manner. That is, we may choose on one trading day to settle in common stock only and choose on another trading day to settle in cash or a combination of common stock and cash.

• If we timely elect to pay cash for any portion of the conversion obligation, the holder may retract the conversion notice at any time during the two trading day period beginning on the day after the final day of the settlement notice period (the “conversion retraction period”); no such retraction can be made (and a conversion notice shall be irrevocable) if

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	we do not elect to deliver cash in lieu of common stock (other than cash in lieu of fractional shares).
•	Settlement in common stock only will occur as soon as practicable after we notify the holder that we have chosen this method of settlement. If the conversion notice has not been retracted, then settlement in cash or in a combination of cash and common stock will occur on the third trading day following the final day of the 20 trading day period beginning on the third trading day following the final day of the conversion retraction period (the “cash settlement averaging period”).
•	The settlement amount will be computed as follows:

1.	If we elect to satisfy the entire conversion obligation in common stock, we will deliver to the holder a number of shares of common stock equal to (i) the aggregate principal amount of notes to be converted divided by 1,000 and multiplied by (ii) the conversion rate.
2.	If we elect to satisfy the entire conversion obligation in cash, we will deliver to the holder cash in an amount equal to the product of:

• a number equal to (i) the aggregate principal amount of the notes to be converted divided by 1,000 and multiplied by (ii) the conversion rate, and

• the arithmetic average of the closing sale prices of our common stock during the cash settlement averaging period.

3. If we elect to satisfy the conversion obligation in a combination of cash and common stock, we will deliver to the holder:

• a cash amount (“cash amount”) (excluding any cash paid for fractional shares) equal to:

• the aggregate principal amount of notes to be converted multiplied by the percentage of such principal amount to be satisfied in cash, and

• if greater than zero, the product of (i) the amount of cash that would be paid in clause (2) above minus the aggregate principal amount of the notes surrendered for conversion, and (ii) the percentage of the excess amount to be satisfied in cash; plus

• a number of shares equal to (i) the number of shares that would be issued in clause (1) above minus (ii) the number of shares equal to the quotient of the cash amount divided by the arithmetic average of the closing sale prices of our common stock during the cash settlement averaging period.

     Conversion During 30 Trading Days Prior to Maturity. If we receive a holder’s conversion notice after the “final notice date”, the following procedure will apply:

• We will notify the holder through the trustee of the method we choose to settle our conversion obligation in the same manner as set forth above under “— Conversion On or Prior to 31 Trading Days Prior to Maturity,” except that we will settle all of our

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	conversion obligations arising during the 30 trading days prior to maturity in the same manner.
•	A holder cannot retract such holder’s conversion notice if we elect to pay cash for any portion of the conversion obligation.
•	Settlement in common stock only will occur as soon as practicable after we notify the holder that we have chosen this method of settlement. Settlement in cash or in a combination of cash and common stock will occur on the third trading day following the final trading day of such cash settlement averaging period.
•	The settlement amount will be computed in the same manner as set forth above under “— Conversion On or Prior to 31 Trading Days Prior to Maturity,” except that the “cash settlement averaging period” shall be the 20 trading day period beginning on the date that is the 23rd trading day prior to the maturity date.

   Conversion Rate Adjustments

     We will adjust the conversion rate if any of the following events occur:

1.	we issue shares of common stock as a dividend or distribution to all or substantially all holders of our common stock;
2.	we subdivide, combine or reclassify our common stock;
3.	we issue to all or substantially all holders of our common stock certain rights or warrants to purchase our common stock, or securities convertible into or exchangeable or exercisable for our common stock, for a period expiring within 60 days, at less than the closing sale price of our common stock on the business day immediately preceding the date of the announcement of such issuance, provided that the conversion rate will be readjusted to the extent that such rights or warrants are not exercised prior to the expiration;
4.	we distribute to all or substantially all holders of our common stock shares of our capital stock or evidences of our indebtedness or assets, including securities, but excluding:

• dividends or distributions listed in (1) above;

• rights or warrants listed in (3) above;

• dividends and distributions in connection with reclassification, change, consolidation, merger, combination, sale or convergence resulting in a change in the conversion consideration pursuant to the next succeeding paragraph; and

• cash distributions listed in (6) below;

5. we distribute to all or substantially all holders of our common stock shares of capital stock of one of our subsidiaries, with such adjustment, if any, based on the market value of the subsidiary capital stock so distributed relative to the market

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	value of our common stock, in each case over a measurement period following the distribution;
6.	we distribute cash to all or substantially all holders of our common stock, including quarterly cash dividends; or
7.	we or one of our subsidiaries make purchases of our common stock pursuant to a tender offer or exchange offer for our common stock (other than as part of a stock option exchange offer).

     In the event of any:

• reclassification or change of our common stock;

• consolidation, merger or binding share exchange involving us; or

• sale or conveyance to another person or entity of all or substantially all of our property or assets

in which holders of our common stock would be entitled to receive stock, other securities, other property, assets or cash for their common stock, upon conversion of a noteholder’s notes, such noteholder will be entitled to receive the same type of consideration which such noteholder would have been entitled to receive if such noteholder had converted the notes into our common stock immediately prior to any of these events.

     A holder of notes may, in certain circumstances, be deemed to have received a distribution or dividend subject to U.S. federal income tax as a result of an adjustment or the nonoccurrence of an adjustment to the conversion price. See “Certain U.S. Federal Income Tax Consequences — Tax Consequences to U.S. Holders — Constructive Dividends.”

     To the extent permitted by law, we may, from time to time, increase the conversion rate for a period of at least 20 days if our board of directors determines that this increase would be in our best interests, subject to compliance with Nasdaq Marketplace Rule 4350(i). Any such determination by our board will be conclusive. We would give holders at least 15 days’ notice of any increase in the conversion rate. In addition, we may increase the conversion rate if our board of directors deems it advisable to avoid or diminish any income tax to holders of common stock resulting from any distribution of common stock or similar event, subject to compliance with Nasdaq Marketplace Rule 4350(i).

     We will not be required to make an adjustment in the conversion rate unless the adjustment would require a change of at least one percent in the conversion rate. However, we will carry forward any adjustments that are less than one percent of the conversion rate. Except as described above in this section, we will not adjust the conversion rate for any issuance of our common stock or convertible, exchangeable or exercisable securities or rights to purchase our common stock or convertible, exchangeable or exercisable securities.

Payment at Maturity

     At the maturity date, each holder of $1,000 principal amount of the notes shall be entitled to receive $1,000, and accrued and unpaid interest (including additional amounts), if any, in cash to, but not including, the maturity date.

Sinking Fund

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No sinking fund is provided for the notes.

Optional Redemption

     On or after December 15, 2008, we may redeem for cash all or a portion of the notes at any time for a price equal to 100% of the principal amount of the notes to be redeemed plus accrued and unpaid interest (including additional amounts), if any, to but not including the redemption date. We will provide not less than 20 calendar days nor more than 60 calendar days’ notice mailed to each holder of the notes to be redeemed. When the redemption notice is given and funds deposited as required, interest will cease to accrue on and after the redemption date on the notes or portions of such notes called for redemption. If we decide to redeem fewer than all of the outstanding notes, the trustee will select the notes to be redeemed by lot, or on a pro rata basis or by another method the trustee considers fair and appropriate. If the trustee selects a portion of a holder’s notes for partial redemption and such holder converts a portion of its notes, the converted portion will be deemed to be from the portion selected for redemption.

Purchase of Notes at a Holder’s Option

     Holders have the right to require us to purchase all or a portion of their notes for cash on December 15, 2008, December 15, 2013 and December 15, 2018 (each, a “purchase date”). Any note purchased by us on a purchase date will be paid for in cash. We will be required to purchase any outstanding notes for which a holder delivers a written purchase notice to the paying agent. This notice must be delivered during the period beginning at any time from the opening of business on the date that is 22 business days prior to the relevant purchase date until the close of business on the date that is two business days prior to the purchase date. If the purchase notice is given and withdrawn prior to the relevant purchase date, we will not be obligated to purchase the related notes. Also, as described in the “Risk Factors” section of this prospectus under the caption “We May Not Have the Funds Necessary to Purchase the Notes Upon a Designated Event or Other Purchase Date, as Covered by the Indenture Governing the Notes” we may not have funds sufficient to purchase notes when we are required to do so.

     The purchase price payable will be equal to 100% of the principal amount of the notes to be purchased plus accrued and unpaid interest (including additional amounts), if any, to, but not including, the purchase date.

     On or before the 22nd business day prior to each purchase date, we will provide to the trustee, the paying agent and to all holders of the notes at their addresses shown in the register of the registrar, and to beneficial owners as required by applicable law, a notice stating, among other things:

• the purchase price;

• the name and address of the paying agent and the conversion agent; and

• the procedures that holders must follow to require us to purchase their notes.

     Simultaneously with providing such notice, we will publish a notice containing this information in a newspaper of general circulation in the City of New York or publish the information on our website or through such other public medium as we may use at that time.

     A notice electing to require us to purchase a holder’s notes must state:

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• the relevant purchase date;

• if certificated notes have been issued, the certificate numbers of the notes;

• the portion of the principal amount of notes to be purchased, in integral multiples of $1,000; and

• that the notes are to be purchased by us pursuant to the applicable provisions of the notes and the indenture.

     If the notes are not in certificated form, a holder’s notice must comply with appropriate DTC procedures.

     No notes may be purchased at the option of holders if there has occurred and is continuing an event of default other than an event of default that is cured by the payment of the purchase price of the notes.

     A holder may withdraw any purchase notice in whole or in part by a written notice of withdrawal delivered to the paying agent prior to the close of business on the business day prior to the purchase date. The notice of withdrawal must state:

• the principal amount of the withdrawn notes;

• if certificated notes have been issued, the certificate numbers of the withdrawn notes; and

• the principal amount, if any, which remains subject to the purchase notice.

If the notes are not in certificated form, a holder’s notice must comply with appropriate DTC procedures.

     A holder must either effect book-entry transfer or deliver the notes, together with necessary endorsements, to the office of the paying agent after delivery of the purchase notice to receive payment of the purchase price. A holder will receive payment promptly following the later of the purchase date or the time of book-entry transfer or the delivery of the notes. If the paying agent holds money sufficient to pay the purchase price of the notes on the business day following the purchase date, then:

• the notes will cease to be outstanding and interest (including additional amounts), if any, will cease to accrue (whether or not book-entry transfer of the notes is made or whether or not the note is delivered to the paying agent); and

• all other rights of the holder will terminate (other than the right to receive the purchase price upon delivery or transfer of the notes).

Purchase of Notes at a Holder’s Option Upon a Designated Event

     In the event of a designated event, a holder will have the right to require us to purchase for cash all or any part of the notes after the occurrence of a designated event at a purchase price equal to 100% of the principal amount plus accrued and unpaid interest (including additional amounts), if any, up to, but not including, the designated event purchase date. Notes submitted for purchase must be $1,000 or an integral multiple thereof.

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     On or before the 20th calendar day after the occurrence of a designated event, we will provide to all holders of the notes and the trustee and paying agent a notice of the occurrence of the designated event and of the resulting purchase right. Such notice shall state, among other things, the procedures that holders must follow to require us to purchase the notes and the date of the designated event.

     Simultaneously with providing such notice, we will publish a notice containing this information in a newspaper of general circulation in the City of New York or publish the information on our website or through such other public medium as we may use at that time.

     To exercise the purchase right, a holder must deliver, on or before the 20th business day after the date of our notice of a designated event, subject to extension to comply with applicable law, the notes to be purchased, duly endorsed for transfer, together with a written purchase notice and the form entitled “Form of Designated Event Purchase Notice” on the reverse side of the notes duly completed, to the paying agent. The purchase notice must state:

• the relevant purchase date;

• if certificated notes have been issued, the certificate numbers of the notes;

• the portion of the principal amount of notes to be purchased, in integral multiples of $1,000; and

• that the notes are to be purchased by us pursuant to the applicable provisions of the notes and the indenture.

If the notes are not in certificated form, a holder’s purchase notice must comply with appropriate DTC procedures.

     A holder may withdraw any purchase notice (in whole or in part) by a written notice of withdrawal delivered to the paying agent prior to the close of business on the business day prior to the designated event purchase date. The notice of withdrawal shall state:

• the principal amount of the withdrawn notes;

• if certificated notes have been issued, the certificate numbers of the withdrawn notes; and

• the principal amount, if any, which remains subject to the purchase notice.

If the notes are not in certificated form, a holder’s notice of withdrawal must comply with appropriate DTC procedures.

     We will be required to purchase the notes no later than 35 business days after the date of our notice of the occurrence of the relevant designated event subject to extension to comply with applicable law. A holder will receive payment of the designated event purchase price promptly following the later of the designated event purchase date or the time of book-entry transfer or the delivery of the notes. If the paying agent holds cash sufficient to pay the designated event purchase price of the notes on the business day following the designated event purchase date, then:

• the notes will cease to be outstanding and interest (including additional amounts), if any, will cease to accrue (whether or not book-entry transfer of the notes is made or whether or not the note is delivered to the paying agent); and

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• all other rights of the holder will terminate (other than the right to receive the designated event purchase price and any previously accrued and unpaid interest (including additional amounts), if any, upon delivery or transfer of the notes).

     A designated event will be deemed to have occurred if any of the following occurs:

• any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 of the Exchange Act, except that a person shall be deemed to have beneficial ownership of all shares that such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of our total outstanding voting stock;

• during any period of two consecutive years, individuals who at the beginning of such period constituted our board of directors (together with any new directors whose election to such board or whose nomination for election by our stockholders, was approved by a vote of at least 662/3% of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of such board of directors then in office;

• we consolidate with or merge with or into any person or convey, transfer, sell, or otherwise dispose of or lease all or substantially all of our assets to any person, or any corporation consolidates with or merges into or with us, in any such event pursuant to a transaction in which our outstanding voting stock is changed into or exchanged for cash, securities or other property, other than any such transaction where our outstanding voting stock is not changed or exchanged at all (except to the extent necessary to reflect a change in our jurisdiction of incorporation), or where (A) our outstanding voting stock is changed into or exchanged for cash, securities and other property (other than equity interests of the surviving corporation) and (B) if our stockholders immediately before such transaction constituting a change of control own, directly or indirectly, immediately following such transaction, more than 50% of the total outstanding voting stock of the surviving corporation;

• we are liquidated or dissolved or adopt a plan of liquidation or dissolution other than in a transaction which complies with the provisions described under “— Consolidation, Merger and Sale of Assets”; or

• our common stock ceases to be quoted on the Nasdaq National Market or listed another established national securities exchange or traded on an automated over-the-counter trading market in the United States.

     However, notwithstanding the foregoing, a designated event will not be deemed to have occurred if either:

• the closing sales price of our common stock for each of at least five trading days within:

• the period of ten consecutive trading days immediately after the later of the designated event or the public announcement of the designated event, in the case of a designated event resulting solely from a designated event under the first bullet point above; or

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• the period of ten consecutive trading days immediately preceding the designated event, in the case of a designated event under the second, third and fourth bullet points above;

is at least equal to 105% of the quotient where the numerator is the principal amount and the denominator is the conversion rate in effect on each of those five trading days; or

• in the case of a merger or consolidation described in the third bullet point above, at least 95% of the consideration, excluding cash payments for fractional shares and cash payments pursuant to dissenters’ approval rights, in the merger or consolidation constituting the designated event, consists of common stock traded on a U.S. national securities exchange or quoted on the Nasdaq National Market (or which will be so traded or quoted when issued or exchanged in connection with such designated event) and as a result of such transaction or transactions the notes become convertible solely into such common stock.

     For purposes of this designated event definition, “voting stock” means stock of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of a corporation (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).

     The definition of designated event includes a phrase relating to the conveyance, transfer, sale, lease or other disposition of “all or substantially all” of our assets. There is no precise, established definition of the phrase “substantially all” under the laws of the State of New York, which governs the indenture and the notes, or under the laws of the Commonwealth of Massachusetts, our state of incorporation. Accordingly, a holder’s ability to require us to repurchase its notes as a result of a conveyance, transfer, sale, lease or other disposition of less than all of our assets may be uncertain.

     Pursuant to the indenture, we will:

• comply with the provisions of Rule 13e-4 and Rule 14e-1, if applicable, under the Exchange Act;

• file a Schedule TO or any successor or similar schedule if required under the Exchange Act; and

• otherwise comply with all U.S. federal and state securities laws in connection with any offer by us to purchase the notes upon a designated event.

     This designated event purchase feature may make more difficult or discourage a takeover of us and the removal of incumbent management. However, we are not aware of any specific effort to accumulate shares of our capital stock with the intent to obtain control of us by means of a merger, tender offer, solicitation or otherwise. In addition, the designated event purchase feature is not part of a plan by management to adopt a series of anti-takeover provisions. Instead, the designated event purchase feature is a result of negotiations between us and the initial purchaser.

     We could, in the future, enter into certain transactions, including recapitalizations, that would not constitute a designated event but would increase the amount of debt outstanding or otherwise adversely affect a holder. Neither we nor our subsidiaries are prohibited under the indenture from incurring additional debt. The incurrence of significant amounts of additional debt could adversely affect our ability to service our debt, including the notes. See “Risk Factors — There are no restrictive covenants in the indenture relating to our ability to incur future indebtedness.”

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     If a designated event were to occur, we may not have sufficient funds to pay the designated event purchase price for the notes tendered by holders. In addition, we may in the future incur debt that has similar designated event provisions that permit holders of this debt to accelerate or require us to purchase this debt upon the occurrence of events similar to a designated event. Our failure to repurchase the notes upon a designated event will result in an event of default under the indenture.

Consolidation, Merger and Sales of Assets

     The indenture provides that we may not consolidate with or merge into any other person or convey, transfer, sell, lease or otherwise dispose of all or substantially all of our properties and assets to another person unless, among other things:

• the resulting, surviving or transferee person is organized and existing under the laws of the United States, any state thereof or the District of Columbia (even if a subsidiary to a foreign entity);

• such person assumes all of our obligations under the notes and the indenture under a supplemental indenture in a form reasonably satisfactory to the trustee;

• no event of default exists and its continuing immediately before and after giving effect to such transaction; and

• if a supplemental indenture is to be executed in connection with such consolidation, merger or disposition, we have delivered to the trustee an officers’ certificate and an opinion of counsel with respect thereto as provided for in the indenture.

     Upon any such consolidation, merger or disposition in accordance with the foregoing, the successor corporation formed by such consolidation or share exchange or into which we are merged or which such person formed by such consolidation or share exchange or to which such conveyance, sale, lease, transfer or other disposition is made will succeed to, and be substituted for, and may exercise our right and power, under the indenture with the same effect as if such successor had been named as us in the indenture, and thereafter (except in the case of a lease) the predecessor corporation will be relieved of all further obligations and covenants under the indenture and the notes.

Events of Default

     Each of the following constitutes an event of default under the indenture:

• our failure to pay principal amount of the notes when due and payable, whether at maturity or upon acceleration;

• our failure to pay any accrued unpaid interest (including additional amounts) on the notes, if any, when due and payable, and if such default continues for a period of 30 days;

• our failure to convert notes upon exercise of a holder’s conversion right in accordance with the terms of the indenture;

• our failure to redeem notes after we have exercised our redemption option;

• our failure to purchase all or any part of the notes in accordance with the provisions of “— Purchase of Notes at a Holder’s Option” or “— Purchase of Notes at a Holder’s Option Upon a Designated Event”

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• our failure to provide notice in the event of a designated event;

• our failure to perform or observe any other term, covenant or agreement contained in the notes or the indenture for a period of 60 calendar days after written notice of such failure, has been given to us by the trustee or to us and the trustee by the holders of at least 25% in aggregate principal amount of the notes then outstanding;

• our default under any credit agreement, mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness of us or any of our subsidiaries for money borrowed whether such indebtedness now exists, or is created after the date of the indenture, which default:

• involves the failure to pay the principal of or any premium or interest on indebtedness in an amount in excess of $7.5 million when such indebtedness becomes due and payable at the stated maturity thereof, and such default continues after any applicable grace period, or

• results in the acceleration of such indebtedness prior to its stated maturity, and in each case, the principal amount of any such indebtedness, together with the principal amount of any other such indebtedness so unpaid at its stated maturity or the stated maturity of which has been so accelerated, aggregates $10.0 million or more;

• there is a failure by us or any of our subsidiaries to pay final judgments not covered by insurance aggregating in excess of $7.5 million, which judgments are not paid, discharged or stayed for a period of 60 calendar days; and

• certain events of bankruptcy, insolvency, liquidation or similar reorganization with respect to us or any of our significant subsidiaries.

     Pursuant to the indenture, the trustee shall, within 90 calendar days of the occurrence of a default known to the trustee (or within 15 calendar days after it is known to the trustee, if later), give to the registered holders of the notes notice of all uncured defaults known to it, but the trustee shall be protected in withholding such notice if it, in good faith, determines that the withholding of such notice is in the best interest of such registered holders, except in the case of a default under the first, second, fourth or fifth bullets above.

     If certain events of default specified in the last bullet point above shall occur with respect to us and be continuing, then automatically the principal amount of the notes plus accrued and unpaid interest (including additional amounts), if any, through such date shall become immediately due and payable. If any other event of default shall occur and be continuing (the default not having been cured or waived as provided under “— Modification and Waiver” below), the trustee or the holders of at least 25% in aggregate principal amount of the notes then outstanding may declare the notes due and payable at the principal amount of the notes plus accrued and unpaid interest (including additional amounts), if any, and thereupon the trustee may, at its discretion, proceed to protect and enforce the rights of the holders of notes by appropriate judicial proceedings. Such declaration accelerating the notes and the amounts due thereunder may be rescinded or annulled with the written consent of the holders of a majority in aggregate principal amount of the notes then outstanding upon the conditions provided in the indenture.

     The indenture contains a provision entitling the trustee, subject to the duty of the trustee during default to act with the required standard of care, to be indemnified by the holders of notes before proceeding to exercise any right or power under the indenture at the request of such holders.

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     The indenture provides that the holders of a majority in aggregate principal amount of the notes then outstanding, through their written consent, may direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred upon the trustee.

     Except with respect to a default in the payment of the principal of, premium, if any, or any accrued and unpaid interest and additional amounts, if any, on any note, redemption price or designated event purchase price of any note, or in respect of a failure to convert any note into common stock as required, or in respect of a covenant or provision which under the indenture cannot be modified or amended without the consent of the holder of each note outstanding, the holders of not less than a majority in aggregate principal amount of the notes outstanding may on behalf of the holders of all the notes waive any past default under the indenture and rescind any acceleration with respect to the notes and its consequences if (1) rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (2) all existing events of default, other than the nonpayment of the principal of and interest on the notes that have become due solely by such declaration of acceleration, have been cured or waived.

     We are required to furnish annually to the trustee a statement as to the fulfillment of our obligations under the indenture and as to any default in the performance of such obligations.

Modification and Waiver

Changes Requiring Approval of Each Affected Holder

     The indenture (including the terms and conditions of the notes) cannot be modified or amended without the written consent or the affirmative vote of the holder of each note affected by such change (in addition to the written consent or the affirmative vote of the holders of at least a majority in aggregate principal amount of the notes at the time outstanding) to:

• change the maturity of any note or the payment date of any installment of interest or additional amounts, if any, payable on any notes;

• reduce the principal amount, redemption price or purchase price of, or interest (including additional amounts), if any, on, any note;

• change the currency of payment of principal, redemption price or purchase price of, or interest (including additional amounts), if any, on, any note;

• impair or adversely affect the manner of calculation or rate of accrual of interest (including additional amounts), if any, on any note;

• impair the right to institute suit for the enforcement of any payment on or conversion of, any note;

• impair or adversely affect the conversion rights or purchase rights of any holders of notes;

• modify the redemption provisions of the indenture in a manner adverse to the holders of notes;

• reduce the percentage in aggregate principal amount of notes outstanding necessary to modify or amend the indenture; or

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• reduce the percentage in aggregate principal amount of notes outstanding necessary to waive past defaults.

Changes Requiring Majority Approval

     The indenture (including the terms and conditions of the notes) may be modified or amended, subject to the provisions described above, with the written consent of the holders of at least a majority in aggregate principal amount of the notes at the time outstanding.

Changes Requiring No Approval

     The indenture (including the terms and conditions of the notes) may be modified or amended by us and the trustee, without the consent of the holder of any note, to, among other things:

• add to our covenants for the benefit of the holders of notes;

• surrender any right or power conferred upon us;

• provide for conversion rights of holders of notes if any reclassification or change of our common stock or any consolidation, merger or sale of all or substantially all of our assets occurs;

• provide for the assumption of our obligations to the holders of notes in the case of a merger, consolidation, conveyance, transfer, sale, lease or other disposition;

• increase the conversion rate, provided that the increase will not adversely affect the interests of the holders of notes;

• comply with the requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act of 1939, as amended;

• make any changes or modifications necessary in connection with the registration of the notes under the Securities Act as contemplated in the registration rights agreement; provided that such change or modification does not, in the good faith opinion of our board of directors, adversely affect the interests of the holders of notes in any material respect;

• cure any ambiguity or correct or supplement any inconsistent or otherwise defective provision contained in the indenture or make any other provision with respect to matters or questions arising under the indenture which we may deem necessary or desirable and which shall not be inconsistent with provisions of the indenture; provided that such modification or amendment does not, in the good faith opinion of our board of directors, adversely affect the interests of the holders of notes in any material respect;

• to evidence the succession of another person to us or any other obligor upon the notes, and the assumption by any such successor of the covenant of us or such other obligor under the indenture and in the notes, in each case in compliance with the provisions of the indenture;

• to evidence and provide the acceptance of the appointment of a successor trustee under the indenture; or

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• add or modify any other provisions with respect to matters or questions arising under the indenture which we and the trustee may deem necessary or desirable and which will not adversely affect the interests of the holders of notes.

Waiver

     The holders of a majority in aggregate principal amount of the notes outstanding may waive compliance with certain provisions of the indenture relating to the notes, unless (1) we fail to pay principal or interest (including additional amounts), if any, or on any note when due, (2) we fail to convert any note into common stock as required by the indenture, or (3) we fail to comply with any of the provisions of the indenture that would require the consent of the holder of each outstanding note.

     Any notes held by us or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with us shall be disregarded (from both the numerator and denominator) for purposes of determining whether the holders of a majority in principal amount of the outstanding notes have consented to a modification, amendment or waiver of the terms of the indenture.

Registration Rights

Registration of the Notes

     We have entered into a registration rights agreement with the initial purchaser. Pursuant to the agreement, we have agreed, at our expense:

1.	to file with the SEC not later than the date 90 calendar days after the first date of original issuance of the notes this shelf registration statement covering resales by the holders of all notes who complete and deliver the selling securityholder election and questionnaire described in the offering memorandum;
2.	to use our reasonable best efforts to cause this shelf registration statement to be declared effective by the SEC as promptly as is practicable, but in no event later than 210 calendar days after the first date of original issuance of the notes; and
3.	to use our reasonable best efforts to keep this shelf registration statement effective until the earliest of:

• two years after the last date of original issuance of any of the notes;

• the date on which the holders of the notes and common stock issuable upon conversion of the notes that are not affiliates of Concord are able to sell all such securities immediately without restriction in accordance with provisions of Rule 144(k) under the Securities Act;

• the date when all of the notes and common stock issuable upon conversion of the notes of those holders that complete and deliver the selling securityholder election and questionnaire described in the offering memorandum are registered under this shelf registration statement and disposed of in accordance with such shelf registration statement; and

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• the date when all of the notes and common stock issuable upon conversion of the notes have ceased to be outstanding (whether as a result of repurchase and cancellation, conversion or otherwise).

     Not less than 30 calendar days prior to the effectiveness of this shelf registration statement, we mailed a notice of registration statement and selling securityholder election and questionnaire, in substantially the form attached as Appendix A to the offering memorandum, to each holder of notes to obtain certain information regarding the holder for inclusion in the prospectus. We have named in this shelf registration statement, as a selling securityholder, each holder of notes that has returned to us a completed and signed election and questionnaire within 20 calendar days of receipt thereof.

     After effectiveness of this shelf registration statement, upon our receipt of a completed and signed election and questionnaire from a holder of notes, we will prepare and file (a) a prospectus supplement as soon as practicable or (b) if required, a post-effective amendment to this shelf registration statement or an additional shelf registration statement as soon as reasonably practicable after the end of each fiscal quarter. Accordingly, each holder of notes that submits a completed and signed election and questionnaire after the initial deadline may be named as a selling securityholder in the registration statement and may deliver a prospectus in connection with the resale of such holder’s note(s).

     We cannot assure the holders of the notes that we will be able to maintain this registration statement as effective and current. The absence of a registration statement may limit the holders’ ability to sell such notes or adversely affect the price at which such securities can be sold.

     We will:

• provide to each holder of notes named in this shelf registration statement, copies of the prospectus that is a part of this shelf registration statement;

• notify each such holder when this shelf registration statement has become effective; and

• take certain other actions as are required to permit unrestricted resales of the notes.

     Each holder who sells securities pursuant to this shelf registration statement generally will be:

• required to be named as a selling securityholder in the related prospectus;

• required to deliver a prospectus to the purchaser;

• subject to certain of the civil liability provisions under the Securities Act in connection with the holder’s sales; and

• bound by the provisions of the registration rights agreement that are applicable to the holder of notes (including certain indemnification rights and obligations).

     We may suspend use of this prospectus by the holders of notes for a period not to exceed 45 calendar days (subject, in certain circumstances to an extension to 60 days) in any 90 calendar day period, and not to exceed an aggregate of 120 calendar days in any 360 calendar day period, if:

• the prospectus would, in our judgment, contain a material misstatement or omission as a result of an event that has occurred and is continuing; and

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• we determine in good faith that the disclosure of this material non-public information would have a material adverse effect on us and our subsidiaries taken as a whole.

     However, if the disclosure relates to a previously undisclosed proposed or pending material business transaction, the disclosure of which would impede our ability to consummate such transaction, we may extend the suspension period from 45 calendar days to 60 calendar days. We need not specify the nature of the event giving rise to a suspension in any notice to holders of the notes of the existence of such a suspension.

     Upon the resale of notes, each selling securityholder will be required to deliver a notice of such sale, in substantially the form attached as Exhibit 1 to Annex A to the offering memorandum, to the trustee and us. The notice will, among other things:

• identify the sale as a transfer pursuant to this shelf registration statement;

• certify that the prospectus delivery requirements, if any, of the Securities Act have been complied with; and

• certify that the selling securityholder and the aggregate principal amount of the notes owned by such holder are identified in the related prospectus in accordance with the applicable rules and regulations under the Securities Act.

     If:

• this shelf registration statement was not filed with the SEC on or prior to 90 calendar days after the first date of original issuance of the notes;

• this shelf registration statement has not been declared effective by the SEC on or prior to 210 calendar days after the first date of original issuance of the notes;

• this shelf registration statement is filed and declared effective but thereafter ceases to be effective or usable in connection with resales of notes and we do not cause this shelf registration statement to become effective or usable within five business days by filing a post-effective amendment, prospectus supplement or report pursuant to the Exchange Act;

• if applicable, we do not terminate the suspension period by the 45th or 60th calendar day, as the case may be, or suspension periods collectively exceed an aggregate of 120 calendar days in any 360 calendar day period; or

• subsequent to the effectiveness of this registration statement, we shall fail to comply with our obligation to name in the prospectus, as a selling securityholder, a holder of notes who has returned a completed and signed election and questionnaire;

each such event referred to in the bullet points above being referred to as a “registration default,” then additional interest will accrue on the notes from and including the calendar day following the registration default to but excluding the earlier of (1) the calendar day on which all registration defaults have been cured and (2) the date of the shelf registration statement is no longer required to be kept effective. Additional interest will be paid semi-annually in arrears, with the first semi-annual payment due on the first interest payment date following the date on which such additional interest begins to accrue, and will accrue on the notes at a rate per year equal to 0.25% for the first 90 calendar day period and to 0.50% thereafter of the principal amount of such notes.

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     While holders of notes have the right to specifically enforce our registration obligations, we will have no other liability for monetary damages with respect to any of our registration obligations.

     If this shelf registration statement covering the resales of the notes is not effective, the notes may not be sold or otherwise transferred except in accordance with the provisions set forth under “Transfer Restrictions.

Registration of the Common Stock Issuable Upon Conversion of the Notes

     Pursuant to the registration rights agreement, we have agreed, at our expense:

1.	to file with the SEC not later than the date 90 calendar days after the first date of original issuance of the notes this shelf registration statement covering resales by the holders of the common stock issuable upon conversion of the notes who complete and deliver the selling securityholder election and questionnaire described in the offering memorandum;
2.	to use our reasonable best efforts to cause this shelf registration statement to be declared effective by the SEC as promptly as is practicable, but in no event later than 210 calendar days after the first date of original issuance of the notes; and
3.	to use our reasonable best efforts to keep this shelf registration statement effective until the earliest of:

• two years after the last date of original issuance of any of the notes;

• the date on which the holders of the notes and common stock issuable upon conversion of the notes that are not affiliates of Concord are able to sell all such securities immediately without restriction in accordance with provisions of Rule 144(k) under the Securities Act;

• the date when all of the notes and common stock issuable upon conversion of the notes of those holders that complete and deliver the selling securityholder election and questionnaire described in the offering memorandum are registered under this shelf registration statement and disposed of in accordance with such shelf registration statement; and

• the date when all of the notes and common stock issuable upon conversion of the notes have ceased to be outstanding (whether as a result of repurchase and cancellation, conversion or otherwise).

     Not less than 30 calendar days prior to the effectiveness of this initial shelf registration statement, we mailed a notice of registration statement and selling securityholder election and questionnaire, in substantially the form attached as Appendix A to the offering memorandum, to each holder of common stock issued upon conversion of notes to obtain certain information regarding such holder for inclusion in the prospectus. We have named in this shelf registration statement, as a selling securityholder, each holder of common stock issued upon conversion of notes that has returned to us a completed and signed election and questionnaire within 20 calendar days of receipt thereof.

     After effectiveness of this initial shelf registration statement, upon our receipt of a completed and signed election and questionnaire from a holder of common stock issued upon conversion of notes, we

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will prepare and file (a) a prospectus supplement as soon as practicable or (b) if required, a post-effective amendment to this shelf registration statement or an additional shelf registration statement as soon as reasonably practicable after the end of each fiscal quarter. Accordingly, each holder of common stock issued upon conversion of notes that submits a completed and signed election and questionnaire after the initial deadline may be named as a selling securityholder in the registration statement and may deliver a prospectus in connection with common stock issued upon conversion of the notes.

     We cannot assure the holders of common stock issued upon conversion of notes that we will be able to maintain this registration statement as effective and current. The absence of a registration statement may limit such holders’ ability to sell such shares of common stock issued upon conversion of notes or adversely affect the price at which such securities can be sold.

     We will:

• provide to each holder of common stock issued upon conversion of notes named in this shelf registration statement copies of the prospectus that is a part of this shelf registration statement;

• notify each such holder when a shelf registration statement has become effective; and

• take certain other actions as are required to permit unrestricted resales of the common stock issuable upon conversion of the notes.

     Each holder of common stock issued upon conversion of notes who sells securities pursuant to this shelf registration statement generally will be:

• required to be named as a selling securityholder in the related prospectus;

• required to deliver a prospectus to the purchaser;

• subject to certain of the civil liability provisions under the Securities Act in connection with such holder’s sales; and

• bound by the provisions of the registration rights agreement that are applicable to such holder (including certain indemnification rights and obligations).

     We may suspend the use of this prospectus by holders of common stock issued upon conversion of notes for a period not to exceed 45 calendar days (subject, in certain circumstances to an extension to 60 days) in any 90 calendar day period, and not to exceed an aggregate of 120 calendar days in any 360 calendar day period, if:

• the prospectus would, in our judgment, contain a material misstatement or omission as a result of an event that has occurred and is continuing; and

• we determine in good faith that the disclosure of this material non-public information would have a material adverse effect on us and our subsidiaries taken as a whole.

     However, if the disclosure relates to a previously undisclosed proposed or pending material business transaction, the disclosure of which would impede our ability to consummate such transaction, we may extend the suspension period from 45 calendar days to 60 calendar days. We need

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not specify the nature of the event giving rise to a suspension in any notice to holders of common stock issued upon conversion of notes of the existence of such a suspension.

     Upon the resale of the common stock issued upon conversion of the notes, each selling securityholder will be required to deliver a notice of such sale, in substantially the form attached as Exhibit 1 to Annex A to the offering memorandum, to the trustee and us. The notice will, among other things:

• identify the sale as a transfer pursuant to this shelf registration statement;

• certify that the prospectus delivery requirements, if any, of the Securities Act have been complied with; and

• certify that the selling securityholder and the number of shares of our common stock owned by such holder are identified in the related prospectus in accordance with the applicable rules and regulations under the Securities Act.

     If:

• this shelf registration statement was not filed with the SEC on or prior to 90 calendar days after the first date of original issuance of the notes;

• this shelf registration statement has not been declared effective by the SEC on or prior to 210 calendar days after the first date of original issuance of the notes;

• this shelf registration statement is filed and declared effective but thereafter ceases to be effective or usable in connection with resales of the common stock issuable upon conversion of the notes and we do not cause this shelf registration statement to become effective or usable within five business days by filing a post-effective amendment, prospectus supplement or report pursuant to the Exchange Act;

• if applicable, we do not terminate the suspension period by the 45th or 60th calendar day, as the case may be, or suspension periods collectively exceed an aggregate of 120 calendar days in any 360 calendar day period; or

• subsequent to the effectiveness of this registration statement, we shall fail to comply with our obligation to name in the prospectus, as a selling securityholder, a holder of common stock issued upon conversion of the notes who has returned a completed and signed election and questionnaire;

each such event referred to in the bullet points above being referred to as a “registration default.” If a holder of notes converts some or all of its notes into common stock during a period of registration default, the holder will receive 103% of the number of shares of our common stock the holder would have received upon conversion but for this provision (except to the extent we elect to deliver cash upon conversion). In this circumstance, the holder will not be entitled to receive additional interest on the notes that convert into common stock but holders of common stock issued upon conversion of notes will have the right to specifically enforce our registration obligations.

     If this shelf registration statement covering the resales of the common stock issuable upon conversion of the notes is not declared or maintained effective, such common stock may not be sold or otherwise transferred except in accordance with the provisions set forth under “Transfer Restrictions.”

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Form, Denomination and Registration

Denomination and Registration

     The notes are issued in fully registered form, without coupons, in denominations of $1,000 principal amount and integral multiples thereof.

Global Notes

     The notes are evidenced by one or more global notes deposited with the trustee as custodian for DTC, and registered in the name of Cede & Co. as DTC’s nominee.

     Record ownership of the global notes may be transferred, in whole or in part, only to another nominee of DTC or to a successor of DTC or its nominee, except as set forth below. A holder may hold its interests in the global notes directly through DTC if such holder is a participant in DTC, or indirectly through organizations which are direct DTC participants if such holder is not a participant in DTC. Transfers between direct DTC participants will be effected in the ordinary way in accordance with DTC’s rules and will be settled in same-day funds. Holders may also beneficially own interests in the global notes held by DTC through certain banks, brokers, dealers, trust companies and other parties that clear through or maintain a custodial relationship with a direct DTC participant, either directly or indirectly.

     So long as Cede & Co., as nominee of DTC, is the registered owner of the global notes, Cede & Co. for all purposes will be considered the sole holder of the global notes. Except as provided below, owners of beneficial interests in the global notes:

• will 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 the global notes.

     The laws of some states require that certain persons take physical delivery of securities in definitive form. Consequently, the ability of an owner of a beneficial interest in a global security to transfer the beneficial interest in the global security to such persons may be limited.

     We will wire, through the facilities of the trustee, payments of principal, accrued interest (including additional amounts), if any, on the global notes to Cede & Co., the nominee of DTC, as the registered owner of the global notes. None of the Company, the trustee or any paying agent will have any responsibility or be liable for paying amounts due on the global notes to owners of beneficial interests in the global notes.

     It is DTC’s current practice, upon receipt of any payment of principal, accrued interest (including additional amounts), if any, on the global notes, to credit participants’ accounts on the payment date in amounts proportionate to their respective beneficial interests in the notes represented by the global notes, as shown on the records of DTC, unless DTC believes that it will not receive payment on the payment date. Payments by DTC participants to owners of beneficial interests in notes represented by the global notes held through DTC participants will be the responsibility of DTC participants, as is now the case with securities held for the accounts of customers registered in “street name.”

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     If a holder would like to convert its notes pursuant to the terms of the notes, the holder should contact its broker or other direct or indirect DTC participant to obtain information on procedures, including proper forms and cut-off times, for submitting those requests.

     Because DTC can only act on behalf of DTC participants, who in turn act on behalf of indirect DTC participants and other banks, a holder’s ability to pledge its interest in the notes represented by global notes to persons or entities that do not participate in the DTC system, or otherwise take actions in respect of such interest, may be affected by the lack of a physical certificate.

     DTC has advised us that it will take any action permitted to be taken by a holder of notes, including, without limitation, the presentation of notes for conversion as described below, only at the direction of one or more direct DTC participants to whose account with DTC interests in the global notes are credited and only for the principal amount of the notes for which directions have been given.

     DTC has advised us that DTC is:

• a limited purpose trust company organized under the laws of the State of New York;

• a member of the Federal Reserve System;

• a “clearing corporation” within the meaning of the Uniform Commercial Code; and

• a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act.

     DTC was created to hold securities for DTC participants and to facilitate the clearance and settlement of securities transactions between DTC participants through electronic book-entry changes to the accounts of its participants, thereby eliminating the need for physical movement of certificates. DTC participants include securities brokers and dealers, banks, trust companies and clearing corporations and may include certain other organizations, such as the initial purchaser of the notes. Certain DTC participants or their representatives, together with other entities, own DTC. Indirect access to the DTC system is available to others such as banks, brokers, dealers and trust companies that clear through, or maintain a custodial relationship with, a participant, either directly or indirectly.

     Although DTC has agreed to the foregoing procedures in order to facilitate transfers of interests in the global notes among DTC participants, it is under no obligation to perform or continue to perform such procedures, and such procedures may be discontinued at any time. If (a) DTC is at any time unwilling or unable to continue as depositary or if at any time ceases to be a “clearing agency” registered under the Exchange Act and a successor depositary is not appointed by us within 90 days or (b) an event of default under the indenture occurs and is continuing and the registrar has received a request from DTC that the notes be issued in definitive registered form, we will cause notes to be issued in definitive registered form in exchange for the global notes. None of Concord, the trustee or any of their respective agents will have any responsibility for the performance by DTC or direct or indirect DTC participants of their obligations under the rules and procedures governing their operations, including maintaining, supervising or reviewing the records relating to or payments made on account of beneficial ownership interests in global notes.

     According to DTC, the foregoing information with respect to DTC has been provided to its participants and other members of the financial community for information purposes only and is not intended to serve as a representation, warranty or contract modification of any kind.

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Transfer and Exchange

     A holder may transfer or exchange the notes in accordance with the indenture. No service charge will be made for any registration of transfer or exchange of notes, but we may require payment of a sum sufficient to cover any tax, assessment or other governmental charge payable in connection therewith. We are not required to transfer or exchange any note in respect of which a designated event purchase notice has been given and not withdrawn by the holder thereof.

Restrictions on Transfer; Legends

     The notes and the shares of common stock which are issued upon conversion of the notes will be subject to certain restrictions on transfer set forth on the notes and in the indenture and on the share certificates, and certificates evidencing the notes and shares of common stock will bear the legend regarding such transfer restrictions set forth under “Transfer Restrictions.”

Satisfaction and Discharge

     We may satisfy and discharge our obligations under the indenture by delivering to the trustee for cancellation all outstanding notes or by depositing with the paying agent or the conversion agent, as the case may be, after the notes have become due and payable, whether at maturity, any redemption date, any purchase date, or upon conversion or otherwise, cash or common stock (as applicable under the terms of the indenture) sufficient to pay all of the outstanding notes and paying all other sums payable under the indenture. Such discharge is subject to terms contained in the indenture.

Governing Law

     The indenture and the notes will be governed by, and construed in accordance with, the laws of the State of New York.

Trustee, Transfer Agent and Registrar

     Wilmington Trust Company, as trustee, has been appointed by us as paying agent, conversion agent, registrar and custodian with regard to the notes. Wilmington Trust Company or its affiliates may from time to time in the future provide banking and other services to us in exchange for a fee.

     EquiServe, LLP is the transfer agent and registrar for our common stock.

Calculations in Respect of Notes

     Except as otherwise provided herein, we or our agents will be responsible for making all calculations called for under the notes. These calculations include, but are not limited to, determination of the market price of our common stock. We or our agents will make all these calculations in good faith and, absent manifest error, our and their calculations will be final and binding on holders of notes. We or our agents will provide a schedule of these calculations to the trustee, and the trustee is entitled to conclusively rely upon the accuracy of these calculations without independent verification.

Repurchase and Cancellation of Notes

     We may, to the extent permitted by law, repurchase notes in the open market or by tender offer at any price or by private agreement. Any notes purchased by us, to the extent permitted by law, may be

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reissued or resold or may, at our option, be surrendered to the trustee for cancellation. Any notes surrendered for cancellation may not be reissued or resold and will be promptly cancelled.

     All notes surrendered for payment, redemption, registration of transfer or exchange or conversion shall, if surrendered to any person other than the trustee, be delivered to the trustee. All notes delivered to the trustee shall be cancelled promptly by the trustee. No notes shall be authenticated in exchange for any notes cancelled as provided in the indenture.

Replacement of Notes

     We will replace mutilated, destroyed, stolen or lost notes at expense of the holder upon delivery to the trustee of the mutilated notes, or evidence of the loss, theft or destruction of the notes satisfactory to us and the trustee. In the case of a lost, stolen or destroyed note, indemnity satisfactory to the trustee and us may be required at the expense of the holder of such note before a replacement note will be issued.

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DESCRIPTION OF CAPITAL STOCK

General

     We are authorized to issue 50,000,000 shares of common stock, par value $0.01 per share, and 1,000,000 shares of preferred stock, par value $.01 per share. As of January 15, 2004, 18,127,209 shares of our common stock were outstanding and owned of record by 282 persons, and no shares of our preferred stock were outstanding.

Common Stock

     Holders of our common stock are entitled to one vote for each share on all matters submitted to a vote of our stockholders, including the election of directors. Our Restated Articles of Organization (the “Articles”) do not provide for cumulative voting. Accordingly, holders of a majority of the shares of common stock entitled to vote in any election of directors may elect all of the directors standing for election if they choose to do so. Holders of common stock will be entitled to receive ratably dividends, if any, as may be declared from time to time by our Board of Directors out of funds legally available therefor, subject to any preferential dividend rights of outstanding shares of preferred stock, if any. Upon our liquidation, dissolution or winding up, the holders of common stock will be entitled to receive ratably all of our assets available for distribution to them upon liquidation, subject to the prior rights of any outstanding shares of preferred stock. Holders of common stock have no preemptive, subscription, redemption or conversion rights. All the currently outstanding shares of our common stock are, and all shares of our common stock that may be issued upon conversion of the notes offered, upon issuance, will be, fully paid and nonassessable. The rights, preferences and privileges of holders of common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock that we may designate and issue in the future.

Preferred Stock

     The Articles currently provide that our Board of Directors is authorized, subject to certain limitations prescribed by law, without further approval by our stockholders, to issue from time to time upon the terms and conditions it may determine up to an aggregate of 1,000,000 shares of preferred stock in one or more series and to fix or alter the designations, preferences, rights and any qualifications, limitations or restrictions of the shares of each such series thereof, including the dividend rights, dividend rates, conversion rates, voting rights, terms of redemption (including sinking fund provisions), redemption price or prices, liquidation preferences and the number of shares constituting any series or designations of such series. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, adversely affect the voting power of the holders of the common stock. Under certain circumstances, the issuance of preferred stock could also make it more difficult for a third party to gain control of us, discourage bids for the common stock at a premium or otherwise adversely affect the market price of our common stock. We do not currently have any shares of preferred stock outstanding.

Massachusetts Law and Certain Provisions of Our Articles and By-Laws

     We are subject to the provisions of Chapter 110F of the Massachusetts General Laws, the so-called Business Combination Statute. Under Chapter 110F, a Massachusetts corporation with at least 200 stockholders may not engage in a “business combination” with any “interested stockholder” for a period of three years after the date of the transaction in which the person becomes an interested stockholder, unless (1) prior to such date, the Board of Directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder, (2)

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the interested stockholder acquires at least 90% of the outstanding voting stock of the corporation (excluding shares held by certain of our affiliates) at the time it becomes an interested stockholder, or (3) on or subsequent to such date, the business combination is approved by both the Board of Directors and the holders of at least two-thirds of our issued and outstanding common stock (excluding shares held by the interested stockholder). An “interested stockholder” is a person who, together with its affiliates and associates, owns 5% or more of the outstanding voting stock of the corporation or is an affiliate of the corporation and owned, at any time within the prior three years, 5% or more of the outstanding voting stock of the corporation. A “business combination” includes a merger, a stock or assets sale, and other transactions resulting in a financial benefit to the interested stockholder. A majority of our stockholders may elect not to be governed by Chapter 110F of the Massachusetts General Laws, but such an amendment would not be effective on us for a period of twelve months and would not apply to any business combination with any person who became an interested stockholder prior to the adoption of the amendment.

     Massachusetts General Laws Chapter 156B, Section 50A generally requires that we, as a publicly-held Massachusetts corporation, have a classified board of directors consisting of three classes as nearly equal in size as possible, unless we opt out of the statute’s coverage. We have opted out of the statute’s coverage, but our Articles do contain provisions which give effect to Section 50A.

     Our Restated By-Laws (the “By-Laws”) include a provision excluding us from the applicability of Massachusetts General Laws Chapter 110D. In general, this statute provides that any of our stockholders who are subject to this statute and who acquire 20% or more of our issued and outstanding voting stock may not vote such stock unless our stockholders so authorize. The Board of Directors may amend our By-Laws at any time to subject us to this statute prospectively.

     The Articles require that nominations for the Board of Directors made by a stockholder comply with certain notice procedures. A notice by a stockholder of a planned nomination must be given not less than 60 and not more than 90 days prior to a scheduled meeting, provided that if less than 70 days’ notice is given of the date of the meeting, a stockholder will have ten days within which to give such notice. The stockholder’s notice of nomination must include particular information about the stockholder, the nominee and any beneficial owner on whose behalf the nomination is made. We may require any proposed nominee to provide such additional information as is reasonably required to determine the eligibility of the proposed nominee. The By-Laws also require that a stockholder seeking to have any business conducted at a meeting of stockholders give us notice not less than 60 and not more than 90 days prior to the scheduled meeting, provided in certain circumstances that a ten-day notice rule applies. The notice from the stockholder must describe the proposed business to be brought before the meeting and include information about the stockholder making the proposal, any beneficial owner on whose behalf the proposal is made, and any other stockholder known to be supporting the proposal. The By-Laws require us to call a special stockholders meeting at the request of stockholders holding at least 40% of our issued and outstanding voting stock. The Articles and the By-Laws provide that our directors and officers shall be indemnified by us to the fullest extent authorized by Massachusetts law, as it now exists or may in the future be amended, against all expenses and liabilities reasonably incurred in connection with service for or on our behalf. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the By-Laws, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore unenforceable. We have obtained insurance which insures our directors and officers against certain losses and which insures us against certain of our obligations to indemnify such directors and officers. In addition, the Articles provide that our directors will not be personally liable for monetary damages to us for breaches of their fiduciary duty as directors, unless they violated their duty of loyalty to us or our stockholders, acted in bad faith, knowingly or intentionally violated the law, authorized illegal dividends or redemptions or derived an improper personal benefit from their action as directors. Such limitations of personal liability under the

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Massachusetts Business Corporation Law do not apply to liabilities arising out of certain violations of the U.S. federal securities laws. While non-monetary relief such as injunctive relief, specific performance and other equitable remedies may be available to us, such relief may be difficult to obtain or, if obtained, may not adequately compensate use for our damages. The Articles provide that any amendment to the Articles, the sale, lease or exchange of all or substantially all of our property and assets, or our merger or consolidation into or with any other corporation may be authorized by the approval of the holders of a majority of the shares of each class of stock entitled to vote thereon, rather than by two-thirds as otherwise provided by statute, so long as the transactions have been authorized by a majority of the members of the Board of Directors and the requirements of any other applicable provisions of the Articles have been met. In addition, the Articles provide that shares of our preferred stock may be issued in the future without stockholder approval and upon such terms and conditions, and having such rights, privileges and preferences, as the Board of Directors may determine. See “Description of Capital Stock — Preferred Stock”.

     The transfer agent for our common stock is EquiServe, LLP, Canton, Massachusetts.

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CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS

     The following are certain U.S. federal income tax consequences of ownership and disposition of the notes and of the common stock into which the notes may be converted under certain circumstances. This discussion applies only to the notes:

• purchased by the holders who purchase notes from the initial purchaser at the “issue price,” (the first price to the public); and

• held as capital assets.

       This discussion does not describe all of the tax consequences that may be relevant to a holder in light of his particular circumstances or to holders subject to special rules, such as:

• certain financial institutions;

• insurance companies;

• dealers in securities or foreign currencies;

• persons holding notes as part of a hedge, straddle or conversion transaction;

• U.S. Holders (as defined below) whose functional currency is not the U.S. dollar;

• partnerships or other entities classified as partnerships for U.S. federal income tax purposes; and

• persons subject to the alternative minimum tax.

     This summary is based on the Code, administrative pronouncements, judicial decisions and final, temporary and proposed Treasury Regulations, changes to any of which subsequent to the date of this Prospectus may affect the tax consequences described herein. Persons considering the purchase of notes are urged to consult their tax advisors with regard to the application of the U.S. federal income tax laws to their particular situations. This summary does not discuss the possible consequences of non-income taxes (such as estate tax) or of any state, local, foreign, or other income tax laws.

U.S. Federal Income Tax Consequences to U.S. Holders

     As used herein, the term “U.S. Holder” means a beneficial owner of a note that is, for U.S. federal income tax purposes:

• a citizen or resident of the United States;

• a corporation, or other entity taxable as a corporation for U.S. federal income tax purposes, created or organized in or under the laws of the United States or of any political subdivision thereof;

• an estate the income of which is subject to U.S. federal income taxation regardless of its source; or

• a trust that is subject to the primary supervision of a court within the United States and all substantial decisions of which are controlled by one or more United States persons, as

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defined in Section 7701(a)(30) of the Code, or any other trust that has properly elected under applicable Treasury Regulations to be treated as a United States person.

     The term “U.S. Holder” also includes certain former citizens and residents of the United States.

Payments of Interest

     The notes were issued without original issue discount for U.S. federal income tax purposes. Accordingly, interest paid on a note will be taxable to a U.S. Holder as ordinary interest income at the time it accrues or is received in accordance with the Holder’s method of accounting for federal income tax purposes.

     If, however, the “stated redemption price at maturity” of the notes (generally, the sum of all payments required under the note other than payments of stated interest) exceeds their issue price by more than a de minimis amount, a U.S. Holder will be required to include such excess in gross income as original issue discount, as it accrues, in accordance with a constant-yield method based on a compounding of interest, prior to the receipt of cash payments attributable to this income.

     We may be required to pay additional interest in the event of a registration default. See “Description of Notes — Registration Rights.” Although the matter is not free from doubt, we intend to take the position that the payment of additional amounts is a “remote” or “incidental” contingency and that these additional amounts should be taxable as ordinary interest income at the time they are received or accrued, in accordance with the U.S. Holder’s regular method of accounting for U.S. federal income tax purposes. It is possible, however, that the Internal Revenue Service (the “IRS”) may take a different position, in which case a U.S. Holder might recognize income at different times and in different amounts than would otherwise be the case.

Sale, Exchange, Redemption or Retirement of the Notes

     Upon the sale, exchange, redemption or retirement of a note (other than a conversion into common stock), a U.S. Holder will recognize taxable gain or loss equal to the difference between the amount realized on the sale, exchange, redemption or retirement and the Holder’s adjusted tax basis in the note. For these purposes, the amount realized does not include any amount attributable to accrued and unpaid interest. Amounts attributable to accrued and unpaid interest are treated as interest. Gain or loss realized on the sale, exchange, redemption or retirement of a note will generally be capital gain or loss and will be long-term capital gain or loss if at the time of sale, exchange, redemption or retirement the note has been held for more than one year. The deductibility of capital losses is subject to limitations.

Conversion Into Common Stock

     A U.S. Holder’s conversion of a note into common stock will not be a taxable event, except that the receipt of cash in lieu of a fractional share of common stock will result in capital gain or loss (measured by the difference between the cash received in lieu of the fractional share and the U.S. Holder’s tax basis attributable to the fractional share, as described in the next paragraph), and the fair market value of common stock received with respect to accrued and unpaid interest will be taxed as a payment of interest.

     A U.S. Holder’s tax basis in common stock received upon a conversion of a note will be the same as the U.S. Holder’s basis in the note at the time of conversion, reduced by any basis allocated to a fractional share and increased, for a cash method U.S. Holder, by the amount of income recognized

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with respect to accrued interest. The U.S. Holder’s holding period for the common stock received will include the Holder’s holding period for the note converted, except that the holding period of any common stock received with respect to accrued and unpaid Interest will commence on the day after the date of conversion.

Constructive Dividends

     The conversion price of the notes is subject to adjustment under certain circumstances. Under Section 305 of the Code, adjustments to the conversion price that increase a U.S. Holder’s proportionate share of our assets or earnings may in certain circumstances result in a constructive dividend that would be taxable to such U.S. Holder to the extent of our current and accumulated earnings and profits, as determined under U.S. federal income tax principles. Generally, an increase in the conversion ratio pursuant to a bona-fide reasonable formula that has the effect of preventing the dilution of the interest of U.S. Holders in the notes will not be considered to result in a constructive dividend. Certain adjustments provided in the notes, however, will not qualify as being pursuant to a reasonable formula (including, without limitation, adjustments to the conversion price of the notes in connection with dividends to our stockholders). If such adjustments are made, a U.S. holder will, to the extent of our current and accumulated earnings and profits, be deemed to have received a constructive dividend even though such U.S. Holder has not received any cash or property as a result of the adjustment. In addition, a failure to adjust the conversion price of the notes to reflect a stock dividend or similar event could in some circumstances give rise to a constructive dividend to U.S. Holders of common stock.

Dividends on Common Stock

     Generally, a distribution by us with respect to our common stock will be treated as a taxable dividend to the extent of our current and accumulated earnings and profits (as determined under U.S. federal income tax principles). To the extent that the amount of a distribution exceeds our current and accumulated earnings and profits, the excess will constitute a tax-free return of capital to the extent of a U.S. Holder’s tax basis in the common stock, and thereafter as gain from the sale or exchange of such common stock. Certain U.S. Holders (including individuals) may qualify for preferential rates of U.S. federal income taxation in respect of dividend income. U.S. Holders that are corporations may be eligible for a dividend-received deduction in respect of a dividend distribution by us.

Sale or Other Taxable Dispositions of Common Stock

     Upon the sale or other taxable disposition of our common stock, a U.S. Holder generally will recognize gain or loss equal to the difference between (i) the amount of cash and the fair market value of any property received upon the sale or exchange, and (ii) such U.S. Holder’s adjusted tax basis in the common stock. Such gain or loss generally will be capital gain or loss, and will be long-term capital gain or loss if the U.S. Holder’s holding period is more than one year at the time of sale or disposition. Certain U.S. Holders (including individuals) can qualify for preferential rates of U.S. federal income taxation in respect of long-term capital gains.

Backup Withholding and Information Reporting

     Information returns will be filed with the IRS in connection with payments on the notes and the proceeds from a sale or other disposition of the notes. A U.S. Holder will be subject to U.S. backup withholding tax on these payments if the U.S. Holder fails to provide its taxpayer identification number to the paying agent and to comply with certain certification procedures or otherwise to establish an exemption from backup withholding. The amount of any backup withholding from a payment to a U.S.

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Holder will be allowed as a credit against the U.S. Holder’s U.S. federal income tax liability and may entitle the U.S. Holder to a refund, provided that the required information is timely furnished to the IRS.

     U.S. Federal Income Tax Consequences to Non-U.S. Holders As used herein, the term “Non-U.S. Holder” means a beneficial owner of a note that is, for U.S. federal income tax purposes:

• an individual who is classified as a nonresident alien for U.S. federal income tax purposes;

• a foreign corporation; or

• a foreign estate or trust.

     “Non-U.S. Holder” does not include an individual who is present in the United States for 183 days or more during a calendar year but is not otherwise a resident of the United States for U.S. federal income tax purposes. Such an individual is urged to consult his or her own tax advisor regarding the U.S. federal income tax consequences of the sale, exchange or other disposition of the notes or common stock.

Payments on the Notes

     Subject to the discussion below concerning backup withholding, payments of principal and interest (including original issue discount, if any) on the notes by us or any paying agent to any Non-U.S. Holder will not be subject to U.S. federal withholding tax, provided that, in the case of interest:

• the Holder does not own, actually or constructively, 10 percent or more of the total combined voting power of all classes of stock of Concord entitled to vote and is not a controlled foreign corporation, as defined in the Code, related, directly or indirectly, to Concord through stock ownership; and

• the certification requirement described below has been fulfilled with respect to the beneficial owner, as discussed below.

Certification Requirement

     Interest with respect to a note will not be exempt from withholding tax unless the beneficial owner of the note certifies on IRS Form W-8BEN, under penalties of perjury, that it is not a U.S. person.

     If a Non-U.S. Holder of a note is engaged in a trade or business in the United States, and if interest on the note is effectively connected with the conduct of this trade or business, the Non-U.S. Holder, although exempt from the withholding tax discussed in the preceding paragraphs, will generally be taxed in the same manner as a U.S. Holder (see “Tax Consequences to U.S. Holders” above), except that the Holder will be required to provide a properly executed IRS Form W-8ECI in order to claim an exemption from withholding tax. These holders are urged to consult their own tax advisors with respect to other U.S. tax consequences of the ownership and disposition of notes, including, in the case of corporations, the possible imposition of a 30% (or lower applicable treaty rate) branch profits tax.

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     Payments of interest on the notes that do not meet the foregoing requirements generally will be subject to U.S. federal withholding tax at a rate of 30% (or a lower applicable treaty rate, provided certain certification requirements are met).

Sale, Exchange or Other Disposition of Notes or Shares of Common Stock

     Subject to the discussion below concerning backup withholding, a Non-U.S. Holder generally will not be subject to U.S. federal income tax (or any withholding thereof) on gain realized on a sale or other disposition of notes or common stock, unless:

• the gain is effectively connected with a trade or business of the Non-U.S. Holder in the United States; or

• Concord is or has been a U.S. real property holding corporation, as defined in the Code, at any time within the five-year period preceding the disposition or the Non-U.S. Holder’s holding period, whichever period is shorter, and either (1) the common stock has ceased to be traded on an established securities market prior to the beginning of the calendar year in which the sale or disposition occurs; or (2) the Non-U.S. Holder held more than five percent of Concord’s outstanding common stock at some point during the five-year period described above.

     Concord does not believe that it is, and does not anticipate becoming, a U.S. real property holding corporation.

Conversion into Common Stock

     A Non-U.S. Holder’s conversion of a note into common stock will not be a taxable event. However, to the extent that a Non-U.S. Holder receives cash in lieu of a fractional share upon conversion, any gain upon the receipt of cash would be subject to the rules described above regarding the sale or exchange of common stock.

Dividends

     Dividends (including deemed dividends on the notes described above under “Tax Consequences to U.S. Holders — Constructive Dividends”) paid to a Non-U.S. Holder of common stock generally will be subject to withholding tax at a 30% rate or a reduced rate specified by an applicable income tax treaty. In order to obtain a reduced rate of withholding, a Non-U.S. Holder will be required to provide an IRS Form W-8BEN certifying its entitlement to benefits under a treaty.

     The withholding tax does not apply to dividends paid to a Non-U.S. Holder who provides a Form W-8ECI, certifying that the dividends are effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States. Instead, the effectively connected dividends will be subject to regular U.S. federal income tax as if the Non-U.S. Holder were a U.S. Holder. A non-U.S. corporation receiving effectively connected dividends may also be subject to an additional “branch profits tax” imposed at a rate of 30% (or a lower treaty rate).

Backup Withholding and Information Reporting

     Information returns will be filed with the IRS in connection with payments on the notes and dividends on the common stock. Unless the Non-U.S. Holder complies with certification procedures to establish that it is not a U.S. person, information returns may be filed with the IRS in connection with the proceeds from a sale or other disposition of the notes and common stock and the Non-U.S.

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Holder may be subject to U.S. backup withholding tax on payments on the notes or on dividends or the proceeds from a sale or other disposition of the notes or common stock. The certification procedures required to claim the exemption from withholding tax on interest described above will satisfy the certification requirements necessary to avoid the backup withholding tax as well. The amount of any backup withholding from a payment to a Non-U.S. Holder will be allowed as a credit against the Non-U.S. Holder’s U.S. federal income tax liability and may entitle the Non-U.S. Holder to a refund, provided that the required information is timely furnished to the IRS.

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CERTAIN ERISA CONSIDERATIONS

Certain ERISA Considerations

     The following is a summary of certain considerations associated with the purchase, ownership and disposition of the notes and common stock issuable upon conversion of the notes by employee benefit plans that are subject to Title I of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”); plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the Code or provisions under United States federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of the Code or ERISA (collectively, “similar laws”); and entities whose underlying assets are considered to include “plan assets” of such plans, accounts and other arrangements (each, a “plan”).

     The following discussion is general in nature and is not intended to be all-inclusive. Due to the complexity of these rules and the penalties that may be imposed upon persons involved in non-exempt prohibited transactions, it is particularly important that fiduciaries or other persons considering purchasing notes or shares of common stock issuable upon conversion of the notes on behalf of, or with the assets of, any plan, consult with their counsel to determine whether such plan is subject to Title I of ERISA, Section 4975 of the Code and/or any similar laws.

General Fiduciary Matters

     ERISA and the Code impose certain duties on persons who are fiduciaries of a plan subject to Title I of ERISA or Section 4975 of the Code (an “ERISA plan”) and prohibit certain transactions involving the assets of an ERISA plan and its fiduciaries or other interested parties. Under ERISA and the Code, any person who exercises any discretionary authority or control over the administration of such an ERISA plan or the management or disposition of the assets of such an ERISA plan, or who renders investment advice for a fee or other compensation to such an ERISA plan, is generally considered to be a fiduciary of the ERISA plan.

     In considering the purchase of notes and common stock issuable upon conversion of the notes to be held as the assets of any plan, a fiduciary should determine whether the investment in the notes is in accordance with the documents and instruments governing the plan and the applicable provisions of ERISA, the Code and/or any similar law relating to a fiduciary’s duties to the plan including, without limitation, the prudence, diversification, delegation of control and prohibited transaction provisions of ERISA, the Code and any other applicable similar laws.

Prohibited Transaction Issues

     Section 406 of ERISA and Section 4975 of the Code prohibit ERISA plans from engaging in specified transactions involving plan assets with persons or entities who are “parties in interest,” within the meaning of ERISA, or “disqualified persons,” within the meaning of Section 4975 of the Code, unless an exemption is available. A party in interest or disqualified person that engaged in a non-exempt prohibited transaction may be subject to excise taxes and other penalties and liabilities under ERISA and the Code. In addition, the fiduciary of the ERISA plan that engaged in a non-exempt prohibited transaction may be subject to penalties and liabilities under ERISA and the Code.

     Whether or not any of our underlying assets are deemed to be “plan assets,” as described below, the purchase and holding of the notes (or common stock issuable upon conversion of the notes) by an ERISA plan with respect to which we or the initial purchasers, as applicable, are considered a party in interest or a disqualified person may constitute or result in a direct or indirect prohibited transaction under Section 406 of ERISA and/or Section 4975 of the Code, unless the notes (or common stock

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issuable upon conversion of the notes) are acquired and held in accordance with an applicable statutory, class or individual prohibited transaction exemption. In this regard, the U.S. Department of Labor (the “DOL”) has issued prohibited transaction class exemptions, or “PTCEs,” that may apply to the purchase and holding of the notes. These class exemptions include, without limitation, PTCE 91-38 regarding bank collective investment funds, PTCE 90-1 regarding insurance company pooled separate accounts, PTCE 84-14 regarding certain transactions determined by independent qualified professional asset managers, PTCE 95-60 regarding life insurance company general accounts and PTCE 96-23 regarding transactions determined by in-house asset managers. We cannot ensure that all of the conditions of any such exemptions will be satisfied.

Plan Asset Issues

     ERISA and the Code do not define “plan assets.” However, regulations (the “plan asset regulations”) promulgated under ERISA by the DOL generally provide that when an ERISA plan acquires an equity interest in an entity that is neither a “publicly-offered security” nor a security issued by an investment company registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”), the ERISA plan’s assets include both the equity interest and an undivided interest in each of the underlying assets of the entity unless it is established either that equity participation in the entity by “benefit plan investors” is not significant or that the entity is an “operating company,” in each case as defined in the plan asset regulations. Although there is little pertinent authority, it is anticipated that the notes will not constitute an equity interest in Concord. However, the shares of common stock issuable upon conversion of the notes will constitute an equity interest in Concord.

     It is not anticipated that (i) we will be an investment company registered under the Investment Company Act or (ii) we will monitor whether investment in the common stock issuable upon conversion of the notes by benefit plan investors will be “significant” for purposes of the plan asset regulations. It is anticipated that we will qualify as an “operating company” within the meaning of the plan asset regulations, although no assurances can be given in this regard.

Plan Asset Consequences

     If our assets were deemed to be “plan assets” under ERISA, this would result, among other things, in (i) the application of the prudence and other fiduciary responsibility standards of ERISA to investments made by us, which could materially affect our operations, (ii) potential liability of persons having investment discretion over the plan assets provided to us should our use or investment of such assets not conform to ERISA’s prudence and fiduciary standards and (iii) the possibility that certain transactions in which we might engage would constitute “prohibited transactions” under ERISA and the Code.

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SELLING SECURITYHOLDERS

     We originally issued the notes in a private placement to Bear, Stearns & Co. Inc. The notes were resold by the initial purchaser to qualified institutional buyers within the meaning of Rule 144A under the Securities Act in transactions exempt from registration under the Securities Act. The notes and the shares of common stock issuable upon the conversion of the notes that may be offered pursuant to this prospectus will be offered by the selling securityholders, which includes their transferees, distributees, pledgees or donees or their successors. The following table sets forth certain information concerning the principal amount of notes beneficially owned by each selling securityholder and the number of conversion shares that may be offered from time to time pursuant to this prospectus.

     The number of conversion shares shown in the table below assumes conversion of the full amount of notes held by such holder at the initial conversion rate of 37.2148 shares per $1,000 principal amount at maturity of notes. This conversion rate is subject to certain adjustments. Accordingly, the number of shares of common stock issuable upon conversion of the notes may increase or decrease from time to time. Under the terms of the indenture, fractional shares will not be issued upon conversion of the notes. Cash will be paid instead of fractional shares, if any. As of January 15, 2004, we had 18,127,209 shares of common stock outstanding.

	Principal amount at
	maturity of notes
	beneficially owned that		Percentage of notes			Number of conversion
Name	may be sold		outstanding			shares that may be sold
DKR Saturn Event Driven Holding Fund Ltd.	$	7,000,000		8.12	%		260,503
DKR Saturn Holding Fund Ltd.	$	7,000,000		8.12	%		260,503
KBC Financial Products USA Inc.	$	7,000,000		8.12	%		260,503
Alpine Associates	$	5,425,000		6.29	%		201,890
S.A.C. Capital Advisors, LLC	$	3,500,000		4.06	%		130,251
Calamos Market Neutral Fund – Calamos Investment Trust	$	3,000,000		3.48	%		111,644
Zurich Institutional Benchmarks Master Fund c/o Alexandra Investment MGT LLC	$	2,000,000		2.32	%		74,429
TQA Master Plus Fund, Ltd.	$	1,188,000		1.38	%		44,211
TD Securities (USA) Inc.	$	942,000		1.09	%		35,056
TQA Master Fund, Ltd.	$	797,000		*			29,660
Consulting Group Capital Markets Fund	$	750,000		*			27,911
Fore Convertible Master Fund, Ltd.	$	714,000		*			26,571
Alpine Partners, L.P.	$	575,000		*			21,398
AIG DKR SoundShore Holdings Ltd.	$	280,000		*			10,420

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	Principal amount at
	maturity of notes
	beneficially owned that		Percentage of notes			Number of conversion
Name	may be sold		outstanding			shares that may be sold
Man Mac I Limited	$	208,000		*			7,740
Guggenheim Portfolio Company VIII (Cayman) Ltd.	$	208,000		*			7,740
Zurich Institutional Benchmarks Master Fund, Ltd. c/o TQA Investors, LLC	$	187,000		*			6,959
Xavex – Convertible Arbitrage 7 Fund c/o TQA Investors, LLC	$	180,000		*			6,698
DKR SoundShore Opportunity Holding Fund Ltd.	$	140,000		*			5,210
DKR SoundShore Strategic Holding Fund Ltd.	$	80,000		*			2,977
LDG Limited	$	78,000		*			2,902
Sphinx Fund c/o TQA Investors, LLC	$	50,000		*			1,860
Lexington Vantage Fund c/o TQA Investors, LLC	$	20,000		*			744
Any other holder of notes or future transferee from any such holder(1)	$	44,928,000		52.09	%		1,671,996

*	Less than 1%
(1)	Information concerning other selling securityholders will be set forth in prospectus supplements from time to time, if required.

The preceding table has been prepared based upon the information furnished to us by the selling securityholders named above. None of the selling securityholders has had any position, office or other material relationship with us or our affiliates within the past three years.

The selling securityholders identified above may have sold, transferred or otherwise disposed of some or all of their notes since the date on which the information in the preceding table is presented in transactions exempt from the registration requirements of the Securities Act. Information concerning the selling securityholders may change from time to time and, if necessary, we will supplement this prospectus accordingly. We cannot give an estimate as to the amount of the notes or conversion shares that will be held by the selling securityholders upon the termination of this offering because the selling securityholders may offer some or all of their notes or conversion shares pursuant to the offering contemplated by this prospectus. See “Plan of Distribution.”

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PLAN OF DISTRIBUTION

     The selling securityholders and their successors, which includes their transferees, distributees, pledgees or donees or their successors, may sell the notes and the underlying common stock directly to purchasers or through underwriters, broker-dealers or agents. Underwriters, broker-dealers or agents may receive compensation in the form of discounts, concessions or commissions from the selling securityholders or the purchasers. These discounts, concessions or commissions may be in excess of those customary in the types of transactions involved.

     The notes and the underlying common stock may be sold in one or more transactions at fixed prices:

• at prevailing market prices at the time of sale;

• at prices related to such prevailing market prices;

• at varying prices determined at the time of sale; or

• at negotiated prices.

       Such sales may be effected in transactions in the following manner (which may involve crosses or block transactions):

• on any national securities exchange or quotation service on which the notes or the common stock may be listed or quoted at the time of sale;

• in the over-the-counter market;

• in transactions otherwise than on such exchanges or services or in the over-the-counter market;

• through the writing of options, whether such options are listed on an options exchange or otherwise; or

• through the settlement of short sales.

     Selling securityholders may enter into hedging transactions with broker-dealers or other financial institutions which may in turn engage in short sales of the notes or the underlying common stock and deliver these securities to close out such short positions, or loan or pledge the notes or the common stock into which the notes are convertible to broker-dealers that in turn may sell these securities.

     From time to time, one or more of the selling securityholders may distribute, devise, gift, pledge, hypothecate or grant a security interest in some or all of the securities owned by them. Any such distributees, devisees or donees will be deemed to be selling securityholders. Any such pledgees, secured parties or persons to whom the securities have been hypothecated will, upon foreclosure in the event of default, be deemed to be selling securityholders.

     The aggregate proceeds to the selling securityholders from the sale of the notes or underlying common stock will be the purchase price of the notes or common stock less any discounts and commissions. A selling securityholder reserves the right to accept and, together with their agents, to reject, any proposed purchase of notes or common stock to be made directly or through agents. We will not receive any of the proceeds from this offering.

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     Our underlying common stock is quoted on the Nasdaq National Market. We do not intend to list the notes for trading on any national securities exchange or on the Nasdaq National Market. We cannot guarantee that any trading market will develop for the notes.

     The notes and underlying common stock may be sold in some states only through registered or licensed brokers or dealers. The selling securityholders and any underwriters, broker-dealers or agents that participate in the sale of the notes and common stock into which the notes are convertible may be “underwriters” within the meaning of Section 2(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of the shares may be underwriting discounts and commissions under the Securities Act. Selling securityholders who are “underwriters” within the meaning of Section 2(11) of the Securities Act will be subject to the prospectus delivery requirements of the Securities Act. The selling securityholders have acknowledged that they understand their obligations to comply with the provisions of the Securities Exchange Act and the rules thereunder relating to stock manipulation, particularly Regulation M, and have agreed that they will not engage in any transaction in violation of such provisions.

     In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 or Rule 144A of the Securities Act may be sold under Rule 144 or Rule 144A rather than pursuant to this prospectus. A selling securityholder may not sell any notes or common stock described herein and may not transfer, devise or gift such securities by other means not described in this prospectus.

     If required, the specific notes or common stock to be sold, the names of the selling securityholders, the respective purchase prices and public offering prices, the names of any agent, dealer or underwriter, and any applicable commissions or discounts with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement of which this prospectus is a part.

     Pursuant to the registration rights agreement filed as an exhibit to the registration statement of which this prospectus is a part, we and the selling securityholders will be indemnified by each other against certain liabilities, including certain liabilities under the Securities Act or will be entitled to contribution in connection with these liabilities.

     We have agreed to pay substantially all of the expenses incidental to the registration, offering and sale of the notes and underlying common stock to the public other than applicable transfer taxes and commissions, fees and discounts of underwriters, brokers, dealers and agents.

LEGAL MATTERS

     The legality of the notes offered hereby and of the shares of common stock issuable upon conversion thereof will be passed upon for us by Testa, Hurwitz & Thibeault, LLP, Boston, Massachusetts.

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EXPERTS

The financial statements as of December 31, 2002 and for the year-ended December 31, 2002 incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2002 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting.

WHERE YOU CAN FIND MORE INFORMATION

     We are subject to the information requirements of the Exchange Act. In accordance with the Exchange Act, we file annual, quarterly and special reports, proxy statements and other information with the SEC. We make available, free of charge, through our website (www.concord.com), Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and amendments to those reports filed or furnished as soon as reasonably practicable after we have filed or furnished those reports with the SEC. The information posted on our website is not incorporated into this prospectus. The public can also obtain access to such reports at the SEC’s Public Reference Room at 450 Fifth Street, NW, Washington, DC 20549, by calling the SEC at 1-800-SEC-0330 or by accessing the SEC’s website, which is www.sec.gov.

     You should rely only upon the information provided in this prospectus or incorporated herein by reference. We have not authorized anyone to provide you with different information. You should not assume that the information contained in this prospectus, including any information incorporated herein by reference, is accurate as of any other date other than that set forth on the front cover of this prospectus.

     The SEC allows Concord to “incorporate by reference” the information we file with them, which means that we can disclose important information to you by referring you to other documents previously filed with the SEC, including Concord’s annual, current and quarterly reports. The information incorporated herein by reference is considered to be part of this document, except to the extent such information is modified or superseded by information provided herein. Any information that we file later with the SEC, specifically those documents filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act will be automatically incorporated by reference and will automatically update and supersede the information in this Prospectus.

     The following documents have been filed by Concord with the SEC (File No. 0-23067) and are hereby incorporated by reference:

1.	Concord’s Annual Report on Form 10-K for the year ended December 31, 2002, filed on March 19, 2003 and related exhibits;
2.	Concord’s Quarterly Report on Form 10-Q, for the quarter ended March 31, 2003, filed on May 2, 2003 and related exhibits;
3.	Concord’s Amended Quarterly Report on Form 10-Q/A, for the quarter ended June 30, 2003, filed on August 4, 2003 and related exhibits;
4.	Concord’s Amended Quarterly Report on Form 10-Q/A, for the quarter ended September 30, 2003, filed on November 24, 2003 and related exhibits; and

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5. Concord’s Current Reports on Form 8-K filed on November 10, 2003, December 2, 2003, December 3, 2003, and December 9, 2003 and related exhibits.

     You may request a copy of all of the information incorporated by reference herein, at no cost, by writing or telephoning our Chief Financial Officer at the following address:

Concord Communications, Inc.

600 Nickerson Road

Marlboro, MA 01752

(508) 460-4646

     This prospectus is part of a registration statement we filed with the SEC. You should rely only on the information or representations provided in this prospectus. We have authorized no one to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus is accurate as of any date other than the date on the front of the document.

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$86,250,000

CONCORD COMMUNICATIONS, INC.

3.0% CONVERTIBLE SENIOR NOTES DUE 2023

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 14. Other Expenses of Issuance and Distribution.

     The following table sets forth an estimate (other than with respect to the Registration Fee) of the expenses expected to be incurred in connection with the issuance and distribution of the securities being registered, other than underwriting discounts and commissions:

Registration Fee – Securities and Exchange Commission		$	6,978
Nasdaq National Market Additional Listing Fee		$	32,098
Printing		$	32,500
Accounting Fees and Expenses		$	144,000
Legal Fees and Expenses		$	225,000
Trustee’s Fees and Expenses		$	20,000
Miscellaneous		$	7,424
	Total	$	468,000

     Concord will bear all expenses shown above. The selling securityholders will bear all underwriting discounts and selling commissions and transfer taxes applicable to the sale of shares sold pursuant to this registration statement.

Item 15. Indemnification of Directors and Officers.

     Concord’s Restated Articles of Organization and the Restated By-Laws provide for indemnification of Concord’s directors and officers unless such indemnification is prohibited by the Massachusetts Business Corporation Law. The Massachusetts Business Corporation Law generally permits indemnification of Concord directors and officers for liabilities and expenses that they may incur in such capacities, except with respect to any matter that the indemnified person shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his or her action was in the best interest of Concord. Reference is made to Concord’s corporate charter filed as Exhibit 3.02 to Concord’s Registration Statement on Form S-1 filed with the Commission on August 8, 1997, as amended (the “S-1”) and Restated By-Laws filed as Exhibit 3.03 to Concord’s S-1 and hereby incorporated by reference.

     Pursuant to an agreement between Charles River Partnership VII Limited Partnership and Mr. Richard M. Burnes, Jr., Charles River Partnership VII has agreed to indemnify Mr. Burnes against any liability incurred in his capacity as a director of Concord.

     Concord has entered into indemnification agreements with its directors and officers and has obtained directors and officers liability insurance for the benefit of its directors and officers.

     Also, the Purchase Agreement and Registration Rights Agreement, each with Bear, Stearns & Co. Inc., provide that the initial purchaser and any selling securityholder under this registration statement are obligated, under certain circumstances, to indemnify directors, officers and controlling persons of concord against current liabilities, including liabilities under the Securities Act.

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Item 16. Exhibits.

     The following exhibits, required by Item 601 of Regulation S-K, are filed as a part of this Registration Statement. Exhibit numbers, where applicable, in the left column correspond to those of Item 601 of Regulation S-K.

Exhibit No.	Item and Reference
4.1	Restated Articles of Organization of Concord Communications, Inc. (filed as Exhibit 3.02 to the Registration Statement on Form S-1 of Concord Communications, Inc., filed with the Commission on August 8, 1997, as amended and hereby incorporated by reference).
4.2	Restated By-laws of Concord Communications, Inc. (filed as Exhibit 3.03 to the Registration Statement on Form S-1 of Concord Communications, Inc., filed with the Commission on August 8, 1997, as amended and hereby incorporated by reference).
4.3	Indenture by and between the Registrant and Wilmington Trust Company as Trustee dated as of December 8, 2003, including the form of Note. (filed herewith)
4.4	Form of Note (included in Exhibit 4.3) (filed herewith)
4.5	Registration Rights Agreement by and between the Registrant and Bear, Stearns & Co., Inc. dated as of December 8, 2003. (filed herewith)
5.1	Legal Opinion of Testa, Hurwitz & Thibeault, LLP (filed herewith)
12.1	Statement regarding Computation of Ratio of Earnings to Fixed Charges (filed herewith)
23.1	Consent of PricewaterhouseCoopers LLP (filed herewith)
23.2	Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5.1)
24.1	Power of Attorney (contained on Signature Pages)
25.1	Statement of Eligibility of Trustee on Form T-1 (filed herewith)

Item 17. Undertakings.

(a) The undersigned registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

                    (i)           To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

                    (ii)           To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in

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the aggregate, represents a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.

                    (iii)           To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement.

     (2)  That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

     (3)  To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(b)  The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c)  Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

(d)  The undersigned registrant hereby undertakes:

     (i)  For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus or any prospectus supplement filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus or prospectus

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supplement filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

     (ii)  For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus or prospectus supplement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(e)  The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act (the “TIA”) in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the TIA.

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SIGNATURES

     Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Marlboro, Commonwealth of Massachusetts on January 22, 2004.

Concord Communications,Inc.
By:	/s/ John A.Blaeser
	John A.Blaeser
	President and
	Chief Executive Officer

Power of Attorney

We, the undersigned officers and directors of Concord Communications, Inc., hereby severally constitute and appoint John A. Blaeser and Melissa H. Cruz and each of them singly, our true and lawful attorneys, with full power to them and each of them singly, to sign for us in our names in the capacities indicated below, any amendments to this Registration Statement on Form S-3 (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, and generally to do all things in our names and on our behalf in our capacities as officers and directors of Concord Communications, Inc., to enable Concord Communications, Inc. to comply with the provisions of the Securities Act of 1933, as amended, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said Registration Statement and all amendments thereto.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.

Name	Capacity	Date
/s/ John A. Blaeser John A. Blaeser	Director, President and Chief Executive Officer (Principal Executive Officer)	January 22, 2004
/s/ Melissa H. Cruz Melissa H. Cruz	Executive Vice President of Finance and Chief Financial Officer (Principal Financial and Accounting Officer)	January 22, 2004
/s/ Frederick W. W. Bolander Frederick W. W. Bolander	Director	January 22, 2004
/s/ Richard M. Burnes, Jr. Richard M. Burnes, Jr.	Director	January 22, 2004
/s/ Jack M. Cooper Jack M. Cooper	Director	January 22, 2004
/s/ Robert M. Wadsworth Robert M. Wadsworth	Director	January 22, 2004

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INDEX TO EXHIBITS

Exhibit No.	Item and Reference
4.1	Restated Articles of Organization of Concord Communications, Inc. (filed as Exhibit 3.02 to the Registration Statement on Form S-1 of Concord Communications, Inc., filed with the Commission on August 8, 1997, as amended and hereby incorporated by reference).
4.2	Restated By-laws of Concord Communications, Inc. (filed as Exhibit 3.03 to the Registration Statement on Form S-1 of Concord Communications, Inc., filed with the Commission on August 8, 1997, as amended and hereby incorporated by reference).
4.3	Indenture by and between the Registrant and Wilmington Trust Company as Trustee dated as of December 8, 2003, including the form of Note. (filed herewith)
4.4	Form of Note (included in Exhibit 4.3) (filed herewith)
4.5	Registration Rights Agreement by and between the Registrant and Bear, Stearns & Co. Inc. dated as of December 8, 2003. (filed herewith)
5.1	Legal Opinion of Testa, Hurwitz & Thibeault, LLP (filed herewith)
12.1	Statement regarding Computation of Ratio of Earnings to Fixed Charges (filed herewith)
23.1	Consent of PricewaterhouseCoopers LLP (filed herewith)
23.2	Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5.1)
24.1	Power of Attorney (contained on Signature Pages)
25.1	Statement of Eligibility of Trustee on Form T-1 (filed herewith)

II-6 EX-4.3 3 b49087coexv4w3.txt EX-4.3 INDENTURE DATED DECEMBER 8, 2003 EXHIBIT 4.3 CONCORD COMMUNICATIONS, INC., AS ISSUER -------------------------------------------- WILMINGTON TRUST COMPANY, AS TRUSTEE -------------------------------------------- UP TO $86,250,000 AGGREGATE PRINCIPAL AMOUNT OF 3.0% CONVERTIBLE SENIOR NOTES DUE 2023 -------------------------------------------- INDENTURE DATED AS OF DECEMBER 8, 2003 -------------------------------------------- TABLE OF CONTENTS

PAGE ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE..................................... 1 Section 1.1. Definitions............................................................. 1 Section 1.2. Incorporation by Reference of Trust Indenture Act....................... 9 Section 1.3. Rules of Construction................................................... 10 Section 1.4. Acts of Holders......................................................... 10 ARTICLE II THE SECURITIES................................................................. 11 Section 2.1. Form and Dating......................................................... 11 Section 2.2. Execution and Authentication............................................ 12 Section 2.3. Registrar, Paying Agent and Conversion Agent............................ 13 Section 2.4. Paying Agent to Hold Cash and Securities in Trust....................... 14 Section 2.5. Holder Lists............................................................ 14 Section 2.6. Transfer and Exchange................................................... 15 Section 2.7. Replacement Securities.................................................. 16 Section 2.8. Outstanding Securities; Determinations of Holders' Action............... 16 Section 2.9. Temporary Securities.................................................... 17 Section 2.10. Cancellation............................................................ 18 Section 2.11. Persons Deemed Owners................................................... 18 Section 2.12. Additional Transfer and Exchange Requirements........................... 18 Section 2.13. CUSIP Numbers........................................................... 24 Section 2.14. Ranking................................................................. 24

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PAGE ARTICLE III REDEMPTION..................................................................... 25 Section 3.1. The Company's Right to Redeem; Notice to Trustee........................ 25 Section 3.2. Selection of Securities to Be Redeemed.................................. 25 Section 3.3. Notice of Redemption.................................................... 26 Section 3.4. Effect of Notice of Redemption.......................................... 27 Section 3.5. Deposit of Redemption Price............................................. 27 Section 3.6. Securities Redeemed in Part............................................. 27 Section 3.7. Repayment to the Company................................................ 27 Section 3.8. No Sinking Fund......................................................... 27 ARTICLE IV PURCHASE AT THE OPTION OF HOLDERS ON SPECIFIC DATES............................ 28 Section 4.1. Optional Put............................................................ 28 Section 4.2. Effect of Purchase Notice; Withdrawal of Purchase Notice................ 30 Section 4.3. Deposit of Purchase Price............................................... 31 Section 4.4. Securities Purchased in Part............................................ 31 Section 4.5. Covenant to Comply With Securities Laws Upon Purchase of Securities..... 32 Section 4.6. Repayment to the Company................................................ 32 Section 4.7. No Purchase Upon Event of Default....................................... 32 ARTICLE V PURCHASE AT THE OPTION OF HOLDERS UPON A DESIGNATED EVENT...................... 32 Section 5.1. Designated Event Put.................................................... 32 Section 5.2. Effect of Designated Event Purchase Notice.............................. 35

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PAGE Section 5.3. Deposit of Designated Event Purchase Price.............................. 36 Section 5.4. Securities Purchased in Part............................................ 36 Section 5.5. Covenant to Comply With Securities Laws Upon Purchase of Securities..... 37 Section 5.6. Repayment to the Company................................................ 37 ARTICLE VI COVENANTS...................................................................... 37 Section 6.1. Payment of Securities................................................... 37 Section 6.2. SEC and Other Reports to the Trustee.................................... 38 Section 6.3. Compliance Certificate.................................................. 39 Section 6.4. Further Instruments and Acts............................................ 39 Section 6.5. Maintenance of Office or Agency of the Trustee, Registrar, Paying Agent and Conversion Agent.............................................. 39 Section 6.6. Delivery of Information Required Under Rule 144A........................ 40 Section 6.7. Waiver of Stay, Extension or Usury Laws................................. 40 Section 6.8. Statement by Officers as to Default..................................... 40 ARTICLE VII SUCCESSOR CORPORATION.......................................................... 41 Section 7.1. When Company May Merge or Transfer Assets............................... 41 ARTICLE VIII DEFAULTS AND REMEDIES.......................................................... 42 Section 8.1. Events of Default....................................................... 42 Section 8.2. Acceleration............................................................ 44 Section 8.3. Other Remedies.......................................................... 44 Section 8.4. Waiver of Past Defaults................................................. 44

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PAGE Section 8.5. Control by Majority..................................................... 45 Section 8.6. Limitation on Suits..................................................... 45 Section 8.7. Rights of Holders to Receive Payment or to Convert...................... 46 Section 8.8. Collection Suit by Trustee.............................................. 46 Section 8.9. Trustee May File Proofs of Claim........................................ 46 Section 8.10. Priorities.............................................................. 47 Section 8.11. Undertaking for Costs................................................... 47 ARTICLE IX TRUSTEE........................................................................ 47 Section 9.1. Duties of Trustee....................................................... 47 Section 9.2. Rights of Trustee....................................................... 49 Section 9.3. Individual Rights of Trustee............................................ 50 Section 9.4. Trustee's Disclaimer.................................................... 50 Section 9.5. Notice of Defaults...................................................... 50 Section 9.6. Reports by Trustee to Holders........................................... 51 Section 9.7. Compensation and Indemnity.............................................. 51 Section 9.8. Replacement of Trustee.................................................. 52 Section 9.9. Successor Trustee by Merger............................................. 53 Section 9.10. Eligibility; Disqualification........................................... 53 Section 9.11. Preferential Collection of Claims Against Company....................... 53 ARTICLE X DISCHARGE OF INDENTURE......................................................... 53 Section 10.1. Discharge of Liability on Securities.................................... 53

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PAGE Section 10.2. Repayment to the Company................................................ 54 ARTICLE XI AMENDMENTS..................................................................... 54 Section 11.1. Without Consent of Holders.............................................. 54 Section 11.2. With Consent of Holders................................................. 55 Section 11.3. Compliance with Trust Indenture Act..................................... 56 Section 11.4. Revocation and Effect of Consents, Waivers and Actions.................. 56 Section 11.5. Notation on or Exchange of Securities................................... 57 Section 11.6. Trustee to Sign Supplemental Indentures................................. 57 Section 11.7. Effect of Supplemental Indentures....................................... 57 ARTICLE XII CONVERSION..................................................................... 57 Section 12.1. Conversion Right........................................................ 57 Section 12.2. Conversion Procedures; Conversion Rate; Fractional Shares............... 59 Section 12.3. Adjustment of Conversion Rate........................................... 61 Section 12.4. Consolidation or Merger of the Company.................................. 69 Section 12.5. Notice of Adjustment.................................................... 71 Section 12.6. Notice in Certain Events................................................ 71 Section 12.7. Company To Reserve Stock: Registration; Listing........................ 72 Section 12.8. Taxes on Conversion..................................................... 72 Section 12.9. Conversion After Regular Record Date.................................... 73 Section 12.10. Company Determination Final............................................. 73 Section 12.11. Responsibility of Trustee for Conversion Provisions..................... 73

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PAGE Section 12.12. Unconditional Right of Holders to Convert............................... 73 Section 12.13. Option to Satisfy Conversion Obligation with Cash, Common Stock or Combination Thereof..................................................... 74 ARTICLE XIII MISCELLANEOUS.................................................................. 76 Section 13.1. Trust Indenture Act Controls............................................ 76 Section 13.2. Notices................................................................. 76 Section 13.3. Communication by Holders with Other Holders............................. 77 Section 13.4. Certificate and Opinion as to Conditions Precedent...................... 77 Section 13.5. Statements Required in Certificate or Opinion........................... 77 Section 13.6. Separability Clause..................................................... 78 Section 13.7. Rules by Trustee, Paying Agent, Conversion Agent, Registrar............. 78 Section 13.8. Legal Holidays.......................................................... 78 Section 13.9. Governing Law; Submission to Jurisdiction; Service of Process........... 78 Section 13.10. No Recourse Against Others.............................................. 79 Section 13.11. Successors.............................................................. 79 Section 13.12. Multiple Originals...................................................... 79

EXHIBIT A Form of Security EXHIBIT B Form of Certificate to be Delivered by Transferee in Connection with Transfers to Institutional Accredited Investors EXHIBIT C Form of Restrictive Legend for Common Stock Issues Upon Conversion vi INDENTURE, dated as of December 8, 2003, between CONCORD COMMUNICATIONS, INC., a Massachusetts corporation (the "COMPANY"), and Wilmington Trust Company, a Delaware banking corporation, as Trustee (the "TRUSTEE"). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Company's 3.0% Convertible Senior Notes due 2023: ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.1. Definitions. "ADDITIONAL INTEREST" has the meaning set forth in the Registration Rights Agreement. All references herein or in the Securities to interest accrued or payable as of any date shall include any Additional Interest accrued or payable as of such date as provided in the Registration Rights Agreement. "ADDITIONAL SHARES" has the meaning set forth in the Registration Rights Agreement. "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 or cause the direction of 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 set forth in Section 2.1(b). "APPLICABLE PROCEDURES" means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Security, in each case to the extent applicable to such transaction and as in effect from time to time. "APPLICABLE STOCK" means (a) the Common Stock and (b) in the event of a merger, consolidation or other similar transaction involving the Company that is otherwise permitted hereunder in which the Company is not the surviving corporation, the common stock of such surviving corporation or its direct or indirect, as applicable, parent corporation. "BANKRUPTCY LAW" means Title 11, United States Code, or any similar United States federal or state law for the relief of debtors. "BOARD OF DIRECTORS" means either the board of directors of the Company or any duly authorized committee of such board. "BOARD RESOLUTION" means a resolution of the Board of Directors. "BUSINESS DAY" means each day of the year other than a Saturday or a Sunday or other day on which banking institutions in the City of New York are required or authorized by law, regulation or executive order to close. "CASH" means such coin or currency of the United States as at any time of payment is legal tender for the payment of public and private debts. "CASH SETTLEMENT AVERAGING PERIOD" has the meaning set forth in Section 12.13(a). "CERTIFICATED SECURITIES" means Securities that are in substantially the form attached hereto as Exhibit A and that do not include the information called for by footnotes 1 and 2 thereof. "CLOSING SALE PRICE" of a share of Applicable Stock on any date means the closing per share sale price (or, if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on such date as reported by the Nasdaq National Market system or, if the shares of Applicable Stock are not quoted on the Nasdaq National Market system, as reported on a national securities exchange. If the Applicable Stock is not listed for trading on a national securities exchange and not quoted by the Nasdaq National Market on the relevant date, the "Closing Sale Price" shall be the last quoted bid for the Applicable Stock in the over-the-counter market on the relevant date as reported by the National Quotation Bureau or similar organization. If the Applicable Stock is not so quoted, the "Closing Sale Price" shall be the average of the midpoint of the last bid and ask prices for the Applicable Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by us for this purpose. "CODE" means the Internal Revenue Code of 1986, as amended. "COMMON STOCK" means the authorized common stock, $0.01 par value per share, of the Company or any other shares of Equity Interest of the Company into which such Common Stock shall be reclassified or changed. "COMPANY" means the party named as the "Company" in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, means such successor. The foregoing sentence shall likewise apply to any subsequent successor or successors to such successors. "COMPANY REQUEST" or "COMPANY ORDER" means a written request or order signed in the name of the Company by any two Officers, at least one of whom is the Chief Executive Officer or the Chief Financial Officer. "CONVERSION AGENT" has the meaning set forth in Section 2.3. "CONVERSION NOTICE" has the meaning set forth in Section 12.2(b). "CONVERSION PERIOD" means the period from and including the 30th Trading Day in a fiscal quarter of the Company to, but not including, the 30th Trading Day (or if that day is not a Trading Day, then the next Trading Day) in the immediately following fiscal quarter of the Company. "CONVERSION PRICE" means, at any time, $1,000 divided by the Conversion Rate in effect at such time, rounded to two decimal places (rounded up if the third decimal place thereof is 5 or more and otherwise rounded down). "CONVERSION RATE" means the number of shares of Common Stock issuable upon conversion of each $1,000 of Principal Amount of Securities, which is initially 37.2148 shares, subject to adjustments as set forth in this Indenture. "CONVERSION SETTLEMENT STOCK PRICE" means the arithmetic average of the Closing Prices of Common Stock during the Cash Settlement Averaging Period. "CORPORATE TRUST OFFICE" means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 1100 North Market Street, Rodney Square North, Wilmington, DE 19890-1615, 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 a successor Trustee may designate from time to time by notice to the Holders and the Company). "CURRENT MARKET PRICE" has the meaning set forth in Section 12.3(g). "CUSTODIAN" means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law. "DEFAULT" means, when used with respect to the Securities, any event which is, or after notice or passage of time or both would be, an Event of Default. "DEPOSITARY" means, with respect to any Global Securities, a securities clearing agency that is registered as such under the Exchange Act and is designated by the Company to act as Depositary for such Global Securities (or any successor securities clearing agency so registered), which shall initially be DTC. "DESIGNATED EVENT" means the occurrence of any of the following events: (i) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), is or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have beneficial ownership of all shares that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total outstanding Voting Stock of the Company; (ii) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors (together with any new directors whose election to such Board of Directors or whose nomination for election by the stockholders of the Company, was approved by a vote of at least 66-2/3% of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of such Board of Directors then in office; (iii) the Company consolidates with or merges with or into any Person or conveys, transfers, sells or otherwise disposes of or leases all or substantially all of its assets to any Person, or any corporation consolidates with or merges into or with the Company, in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is changed into or exchanged for cash, securities or other property, other than any such transaction where the outstanding Voting Stock of the Company is not changed or exchanged at all (except to the extent necessary to reflect a change in the jurisdiction of incorporation of the Company) or where (A) the outstanding Voting Stock of the Company is changed into or exchanged for cash, securities and other property (other than Equity Interest of the surviving corporation) and (B) the stockholders of the Company immediately before such transaction constituting a 2 change of control own, directly or indirectly, immediately following such transaction, more than 50% of the total outstanding Voting Stock of the surviving corporation; (iv) the Company or any Designated Subsidiary is liquidated or dissolved or adopts a plan of liquidation or dissolution other than in a transaction which complies with the provisions described under Article VII; or (v) the Company's Common Stock ceases to be quoted on the Nasdaq National Market or listed on a national securities exchange or traded on an established automated over-the-counter trading market in the United States. A "Designated Event" shall not be deemed to have occurred if either: (1) the last Closing Sale Price of the Common Stock for each of at least five Trading Days within: (i) the period of the ten consecutive Trading Days immediately after the later of the Designated Event or the public announcement of the Designated Event, in the case of a Designated Event resulting solely from a Designated Event in clause (i) of the definition of Designated Event; or (ii) the period of the ten consecutive Trading Days immediately preceding the Designated Event, in the case of a Designated Event resulting from a Designated Event in clauses (ii), (iii) or (iv) of the definition of Designated Event; is at least equal to 105% of the quotient where the numerator is the Principal Amount and the denominator is the Conversion Rate in effect on each of such five Trading Days, with such calculation being made for each Trading Day; or (2) in the case of a merger or consolidation described in clause (iii) of the definition of Designated Event, at least 95% of the consideration, excluding cash payments for fractional shares and cash payments pursuant to dissenters' approval rights, in the merger or consolidation constituting the Designated Event, consists of common stock traded on a U.S. national securities exchange or quoted on the Nasdaq National Market (or which shall be so traded or quoted when issued or exchanged in connection with such Designated Event) and as a result of such transaction or transactions the Securities become convertible solely into such common stock. "DESIGNATED EVENT PURCHASE DATE" has the meaning set forth in Section 5.1(a). "DESIGNATED EVENT PURCHASE NOTICE" has the meaning set forth in Section 5.1(c). "DESIGNATED EVENT PURCHASE PRICE" has the meaning set forth in Section 5.1(a). "DESIGNATED SUBSIDIARY" means any existing or future, direct or indirect, Subsidiary of the Company that would constitute a "significant subsidiary" as such term is defined under Rule 1.02 of Regulation S-X. "DISTRIBUTED ASSETS" has the meaning set forth in Section 12.3(d). "DTC" means The Depository Trust Company, a New York corporation. "EDGAR" has the meaning set forth in Section 6.2(b). "EQUITY INTEREST" of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) corporate stock or other equity participations, including partnership interests, whether general or limited, of such Person. "EVENT OF DEFAULT" has the meaning set forth in Section 8.1. "EXCESS AMOUNT" has the meaning set forth in Section 12.13(a). "EXCHANGE ACT" means the United States Securities Exchange Act of 1934, as amended. "EX-DIVIDEND TIME" means, with respect to any issuance or distribution on Common Stock, the first Trading Day on which the Common Stock trades regular way on the principal securities market on which the Common Stock is then traded without the right to receive such issuance or distribution. "EXPIRATION TIME" has the meaning set forth in Section 12.3(e). "FAIR MARKET VALUE" has the meaning set forth in Section 12.3(g). "GLOBAL SECURITIES" means Securities that are in substantially the form attached hereto as Exhibit A and that include the information called for by footnotes 1 and 3 thereof and that are deposited with the Depositary or its custodian and registered in the name of, the Depositary or its nominee. "HOLDER" means a person in whose name a Security is registered on the Registrar's books. "INDEBTEDNESS" means, with respect to any Person, without duplication, any liability of such Person: (a) for borrowed money; 3 (b) evidenced by bonds, debentures, notes; (c) in respect of letters of credit or bankers acceptances or similar instruments (or reimbursement obligations with respect thereto); (d) to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business; (e) as lessee, the obligations of which are capitalized in accordance with generally accepted accounting principles; and (f) for Indebtedness of others guaranteed by such Person or for which such Person is legally responsible or liable (whether by agreement to purchase indebtedness of, or to supply funds or to invest in, others). The amount of Indebtedness of any Person at any date shall be (i) the outstanding principal amount of all unconditional obligations described above, as such amount would be reflected on a balance sheet prepared in accordance with United States generally accepted accounting principles, and the maximum liability at such date of such Person for any contingent obligations described above, (ii) the accreted value thereof, in the case of any Indebtedness issued with original issue discount, and (iii) the principal amount thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness. "INDENTURE" means this Indenture, as amended or supplemented from time to time in accordance with the terms hereof, including the provisions of the TIA that are explicitly incorporated in this Indenture by reference to the TIA. "INTEREST PAYMENT DATE" has the meaning set forth in Exhibit A attached hereto. "ISSUE DATE" of any Security means the date on which such Security was originally issued or deemed issued as set forth on the face of the Security. "LEGAL HOLIDAY" means any day other than a Business Day. "MARKET PRICE" means the average of the Closing Sale Prices of one share of Applicable Stock for the 20-Trading Day period immediately preceding and including the Business Day immediately preceding the Purchase Date or Designated Event Purchase Date, as the case may be (or if the Business Day immediately preceding the Purchase Date or Designated Event Purchase Date, as the case may be, is not a Trading Day, then on the last Trading Day immediately preceding the Business Day), appropriately adjusted to take into account the occurrence, during the period commencing on the first of such Trading Days during such 20-Trading Day period and ending on the Purchase Date or Designated Event Purchase Date, as the case may be, of any event described in Section 12.3 or Section 12.4. "NON-ELECTING SHARE" has the meaning set forth Section 12.4. "OFFICER" means the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, or the Clerk of the Company. "OFFICERS' CERTIFICATE" means a written certificate containing the information specified in Section 13.4 and Section 13.5, signed in the name of the Company by any two Officers, at least one of whom is the Chief Executive Officer or the Chief Financial Officer, and delivered to the Trustee. An Officers' Certificate given pursuant to Section 6.3 shall be signed by the Chief Financial Officer and one other Officer. "OPINION OF COUNSEL" means a written opinion containing the information specified in Section 13.4 and Section 13.5, from legal counsel. The counsel may be an employee of, or counsel to, the Company. "PAYING AGENT" has the meaning set forth in Section 2.3. "PERSON" or "PERSON" means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof (and for purposes of the definition of "Designated Event" shall also have the meaning set forth in such definition). "PRINCIPAL AMOUNT" of a Security means the principal amount of the Security as set forth on the face of the Security. "PURCHASE DATE" has the meaning set forth in Section 4.1(a). 4 "PURCHASE NOTICE" has the meaning set forth in Section 4.1(c). "PURCHASE PRICE" has the meaning set forth in Section 4.1(a). "QIB" means a "qualified institutional buyer" as defined in Rule 144A. "RECORD DATE" has the meaning set forth in Section 12.3(g). "REDEMPTION DATE" means, when used with respect to any Security to be redeemed, the date fixed for redemption pursuant to this Indenture. "REDEMPTION PRICE" shall mean an amount equal to 100% of the Principal Amount of the Securities to be redeemed plus any accrued and unpaid interest (including Additional Interest, if any) to, but excluding, the Redemption Date. "REFERENCE PERIOD" has the meaning set forth in Section 12.3(d). "REGISTRAR" has the meaning set forth in Section 2.3. "REGISTER" has the meaning set forth in Section 2.3. "REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement, dated December 8, 2003, between the Company and Bear, Stearns & Co. Inc., as amended or supplemented from time to time. "REGULAR RECORD DATE" has the meaning set forth in Exhibit A attached hereto. "RELIANCE LETTER" means a letter from legal counsel to the Company authorizing the Trustee to rely on certain provisions contained in that certain legal opinion of such counsel, dated as of December 8, 2003, delivered to Bear, Stearns & Co. Inc. "RESPONSIBLE OFFICER" means, when used with respect to the Trustee, the officer within the corporate trust department of the Trustee, including any vice president, assistant vice president or assistant treasurer 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, or to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture. "RESTRICTED CERTIFICATED SECURITY" means a Certificated Security which is a Transfer Restricted Security. "RESTRICTED GLOBAL SECURITY" means a Global Security that is a Transfer Restricted Security. "RESTRICTED SECURITY" means a Restricted Certificated Security or a Restricted Global Security. "RULE 144A" means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time. "SEC" means the United States Securities and Exchange Commission, or any successor thereto. "SECURITIES" means any of the Company's 3.0% Convertible Senior Notes due 2023, as amended or supplemented from time to time, issued under this Indenture. "SECURITIES ACT" means the United States Securities Act of 1933, as amended, or any successor statute thereto. "SPECIAL RECORD DATE" has the meaning set forth in Exhibit A attached hereto. "SPIN-OFF" has the meaning set forth in Section 12.3(d). "STATED MATURITY", when used with respect to any Security, means December 15, 2023. "SUBSIDIARY" means any person of which at least a majority of the outstanding Voting Stock shall at the time directly or indirectly be owned or controlled by the Company or by one or more Subsidiaries or by the Company and one or more Subsidiaries. "TIA" means the United States Trust Indenture Act of 1939 as in effect on the date of this Indenture, provided, however, that in the event the TIA is amended after such date, TIA means, to the extent required by any such amendment, the TIA as so amended. "TRADING DAY" means a day during which trading in securities generally occurs on the Nasdaq National Market system or, if the Applicable Stock is not quoted on the Nasdaq National Market system, on the principal U.S. national or regional securities exchange on which the Applicable Stock is then listed or, if the Applicable Stock is not listed on a U.S. national or regional securities exchange, and not quoted on the Nasdaq National Market system, on the principal other market on which the Applicable Stock is then traded (provided that no day on which trading of the Applicable Stock is suspended on such exchange or other trading market will count as a Trading Day). "TRANSFER CERTIFICATE" has the meaning set forth in Section 2.12(f). "TRANSFER RESTRICTED SECURITY" has the meaning set forth in Section 2.12(f). "TRIGGER EVENT" has the meaning set forth in Section 12.3(d). 5 "TRUSTEE" means the party named as the "Trustee" in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any subsequent such successor or successors. "UNRESTRICTED CERTIFICATED SECURITY" means a Certificated Security that is not a Transfer Restricted Security. "UNRESTRICTED GLOBAL SECURITY" means a Global Security that is not a Transfer Restricted Security. "VOTING STOCK" of a person means the Equity Interest of such person of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such person (irrespective of whether or not at the time the Equity Interest of any other class or classes shall have or might have voting power by reason of the happening of any contingency). "WHOLLY OWNED SUBSIDIARY" means a Subsidiary all the Equity Interest of which is owned by the Company or another Wholly Owned Subsidiary, other than directors' qualifying shares. Section 1.2. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings: "COMMISSION" means the SEC. "INDENTURE SECURITIES" means the Securities. "INDENTURE SECURITY HOLDER" means a Holder. "INDENTURE TO BE QUALIFIED" means this Indenture. "INDENTURE TRUSTEE" or "institutional trustee" means the Trustee. "OBLIGOR" on the indenture securities means the Company. All other TIA terms used but not defined in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule have the meanings assigned to them by such definitions. Section 1.3. Rules of Construction. Unless the context otherwise requires: (a) a term has the meaning assigned to it; (b) an accounting term not otherwise defined has the meaning assigned to it in accordance with accounting principles generally accepted in the United States as in effect from time to time; (c) "or" is not exclusive; (d) "including" means including, without limitation; and (e) words in the singular include the plural, and words in the plural include the singular. Section 1.4. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by the Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an 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, as described in Section 13.2. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "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 conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 1.4. 6 (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 such officer the execution thereof. Where such execution is by a signer acting in a capacity other than such signer's individual capacity, such certificate or affidavit shall also constitute sufficient proof of such signer's authority, if it so states. 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 deems sufficient. (c) The principal amount and certificate number of any Security and the ownership of Securities shall be proved by the Register maintained by the Registrar for the Securities. (d) 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. (e) If the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date. ARTICLE II THE SECURITIES Section 2.1. Form and Dating. The Securities shall be designated as the "3.0% Convertible Senior Notes due 2023" of the Company. The aggregate principal amount of Securities outstanding at any time may not exceed $86,250,000 except as provided in Section 2.7. The Securities and the Trustee's certificate of authentication shall be substantially in the form of Exhibit A attached hereto, which is incorporated in and made a part of this Indenture. The Securities may have notations, legends or endorsements required by law, stock exchange rule or usage (provided that any such notation, legend or endorsement required by usage is in a form acceptable to the Company). The Company shall provide any such notations, legends or endorsements to the Trustee in writing. Each Security shall be dated the date of its authentication. (a) Restricted Global Securities. All of the Securities are being offered and sold within the United States to QIBs in reliance on Rule 144A and shall be issued, initially in the form of one or more Restricted Global Securities, which shall be deposited with the Trustee at its Corporate Trust Office, as custodian for the Depositary and registered in the name of DTC or the nominee thereof, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the Restricted Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided. 7 (b) Global Securities in General. Each Global Security shall represent such of the outstanding Securities as shall be specified therein and each shall provide that it shall initially represent the aggregate amount of outstanding Securities stated thereon, but that the aggregate amount of outstanding Securities represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, redemptions, repurchases and conversions of such Securities. Any adjustment of the aggregate principal amount of a Global Security to reflect the amount of any increase or decrease in the amount of outstanding Securities represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 2.12 and shall be made on the records of the Trustee and the Depositary. Neither any members of, or participants in, the Depositary (collectively, the "AGENT MEMBERS") nor any other persons on whose behalf Agent Members may act shall have any rights under this Indenture with respect to any Global Security registered in the name of the Depositary or any nominee thereof, or under any such Global Security, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing contained herein shall (A) prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or (B) impair, as between the Depositary, its Agent Members and any other person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a holder of any Security. (c) Certificated Securities. Certificated Securities shall be issued only under the limited circumstances provided in Section 2.12(a)(i). Section 2.2. Execution and Authentication. The Securities shall be executed on behalf of the Company by any Officer. The signature of the Officer on the Securities may be manual or facsimile. A Security bearing the manual or facsimile signature of an individual who was at the time of the execution of the Security an Officer shall bind the Company, notwithstanding that such individual has ceased to hold such office(s) prior to the authentication and delivery of such Securities or did not hold such office(s) at the date of authentication of such Securities. No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. The Trustee shall authenticate and deliver the Securities for original issuance in an aggregate principal amount of up to $86,250,000 upon one or more Company Orders without any further action by the Company (other than as contemplated below and in Section 13.4 and Section 13.5). The aggregate principal amount due at the Stated Maturity of the Securities outstanding at any time may not exceed the amount set forth in the foregoing sentence except as provided in Section 2.7. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall receive and shall be fully protected in relying upon: (a) a copy of the Board Resolution in or pursuant to which the terms and form of the Securities were established, the issuance and sale of the Securities was authorized, this Indenture was authorized and specified Officers were authorized to establish the form and determine the terms of the Securities and the form of this Indenture, to execute the Securities and this Indenture on behalf of the Company and to take any other necessary actions relating thereto and evidence of any actions taken by authorized Officers pursuant to that Board Resolution, certified by the Clerk, an Assistant Clerk or the General Counsel of the Company to have been duly adopted by the Board of Directors or taken by any authorized Officer and to be in full force and effect as of the date of such certificate; and (b) an Officer's Certificate delivered in accordance with to Section 13.4 and Section 13.5. 8 The Trustee shall act as the initial authenticating agent. Thereafter, the Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. The Securities shall be issued only in registered form without coupons and only in denominations of $1,000 of principal amount and any integral multiple of $1,000. Section 2.3. Registrar, Paying Agent and Conversion Agent. Pursuant to Section 6.5, the Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange ("REGISTRAR"), an office or agency where Securities may be presented for redemption, repurchase or payment ("PAYING AGENT"), an office or agency where Securities may be presented for conversion ("CONVERSION AGENT") and an office or agency where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. Pursuant to Section 6.5, the Company shall at all times maintain a Registrar, Paying Agent, Conversion Agent and an office or agency where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served in the Borough of Manhattan, New York City. The Registrar shall keep a register of the Securities (the "REGISTER") and of their transfer and exchange. The Company may have one or more co-registrars, one or more additional paying agents and one or more additional conversion agents. The term Paying Agent includes any additional paying agent, including any named pursuant to Section 6.5. The term Conversion Agent includes any additional conversion agent, including any named pursuant to Section 6.5. The Company shall enter into an appropriate limited agency agreement with any Registrar, Paying Agent, Conversion Agent or co-registrar (in each case, if such Registrar, agent or co-registrar is a Person other than the Trustee). Each such agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of any such agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 9.7. The Company or any Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar, Conversion Agent or co-registrar and, if the Company fails to maintain a Conversion Agent, the Company shall act as such. The Company hereby initially appoints the Trustee as Registrar, Paying Agent and Conversion Agent in connection with the Securities. The initial office of the Registrar, Paying Agent and Conversion Agent shall be the office of the Trustee that is located in the Borough of Manhattan, New York City, which office on the date hereof is 520 Madison Avenue, 33rd Floor, New York, NY 10022. Section 2.4. Paying Agent to Hold Cash and Securities in Trust. Except as otherwise provided herein, prior to 10:00 a.m., New York City time, on each due date of payments in respect of any Security, the Company shall deposit with the Paying Agent, cash (in immediately available funds if deposited on the due date) or number of shares of Applicable Stock, as applicable, sufficient to make such payments when so becoming due. 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 cash and Applicable Stock held by the Paying Agent for the making of payments in respect of the Securities and shall notify the Trustee of any default by the Company in making any such payment. If the Company, a Subsidiary or an Affiliate of either of them acts as Paying Agent, it shall segregate the money and Applicable Stock held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all cash and Applicable Stock held by it to the Trustee, and to account for any funds and Applicable Stock disbursed by it, and the Trustee may at any time during the continuance of any such default, upon the written request to the Paying Agent, require such Paying Agent to forthwith pay to the Trustee all cash and Applicable Stock so held in trust. Upon doing so, the Paying Agent shall have no further liability for the cash or Applicable Stock. Section 2.5. Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Company shall cause to be furnished to the Trustee on or before each semiannual interest payment date and at such other times as the Trustee may request in writing a list in such form and as of such date as the Trustee may 9 reasonably require of the names and addresses of Holders. Section 2.6. Transfer and Exchange. (a) Subject to compliance with any applicable additional requirements contained in Section 2.12, when a Security is presented to the Registrar with a request to register a transfer thereof or to exchange such Security for an equal principal amount of Securities of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested; provided, however, that every Security presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by an assignment form and, if applicable, a transfer certificate, each in the form included in Exhibit A attached hereto and in form satisfactory to the Registrar and each duly executed by the Holder thereof or its attorney duly authorized in writing. To permit registration of transfers and exchanges, upon surrender of any Security for registration of transfer or exchange at an office or agency maintained for such purpose pursuant to Section 2.3, the Company shall execute, and the Trustee shall authenticate, Securities of a like aggregate principal amount at the Registrar's request. Any transfer or exchange shall be without charge, except that the Company or the Registrar may require payment of a sum sufficient to pay all taxes, assessments or other governmental charges that may be imposed in connection with the transfer or exchange of the Securities from the Holder requesting such transfer or exchange. Neither the Company, the Registrar nor the Trustee shall be required to exchange or register a transfer of (i) any Securities selected for redemption (except, in the case of Securities to be redeemed in part, the portion thereof not to be redeemed), or (ii) any Securities in respect of which a Purchase Notice or a Designated Event Purchase Notice has been given and not withdrawn by the Holder thereof in accordance with the terms of this Indenture (except, in the case of Securities to be repurchased in part, the portion thereof not to be repurchased), or (iii) any Securities surrendered for conversion (except, in the case of Securities to be converted in part, the portion thereof not to be converted). All Securities issued upon any transfer or exchange of Securities in accordance with this Indenture shall be valid obligations of the Company, evidencing the same debt and entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange. (b) Any Registrar appointed pursuant to Section 2.3 shall provide to the Trustee such information as the Trustee may reasonably require in connection with the delivery by such Registrar of Securities upon transfer or exchange of Securities. (c) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Agent Members or other beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. Section 2.7. Replacement Securities. If (a) any mutilated Security is surrendered to the Company, the Registrar or the Trustee, or (b) the Company, the Registrar and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to the Company, the Registrar and the Trustee such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company, the Registrar or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its written request the Trustee shall authenticate and deliver, in exchange for any such mutilated Security or in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor and principal amount, bearing a certificate number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, or is about to be redeemed by the Company pursuant to Article III or repurchased by the Company pursuant to Article IV or Article V, the Company in its discretion may, instead of issuing a new 10 Security, pay, redeem or repurchase such Security, as the case may be. Upon the issuance of any new Securities under this Section 2.7, the Company may require the payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee or the Registrar) connected therewith. Every new Security issued pursuant to this Section 2.7 in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder. The provisions of this Section 2.7 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities. Section 2.8. Outstanding Securities; Determinations of Holders' Action. Securities outstanding at any time are all the Securities authenticated by the Trustee, except for (a) those cancelled by it, (b) those paid, redeemed or repurchased pursuant to Section 2.7, (c) those delivered to it for cancellation, and (d) those described in this Section 2.8 as not outstanding. A Security does not cease to be outstanding because the Company or an Affiliate thereof holds the Security; provided, however, that in determining whether the Holders of the requisite principal amount of Securities have given or concurred in any request, demand, authorization, direction, notice, consent, waiver, or other Act hereunder, Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or 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, waiver or other Act, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Subject to the foregoing, only Securities outstanding at the time of such determination shall be considered in any such determination. If a Security is replaced pursuant to Section 2.7, the replaced Security ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser unaware that such Security has been replaced. If the Paying Agent holds, in accordance with the terms of this Indenture, prior to 10:00 a.m., New York City time, on a Redemption Date, a Purchase Date, a Designated Event Purchase Date or Stated Maturity, as the case may be, cash or securities, if permitted hereunder, sufficient to pay Securities payable on that date, then on such Redemption Date, Purchase Date, Designated Event Purchase Date or Stated Maturity, as the case may be, such Securities shall cease to be outstanding and interest and Additional Interest, if any, on such Securities shall cease to accrue. If a Security is converted in accordance with Article XII, then from and after the time of conversion on the date of conversion, such Security shall cease to be outstanding and interest and Additional Interest, if any, on such Security shall cease to accrue. Section 2.9. Temporary Securities. Pending the preparation of definitive Securities, the Company may execute, and upon Company Order, the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities. If temporary Securities are issued, the Company shall cause definitive Securities to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities shall be 11 exchangeable for definitive Securities upon surrender of the temporary Securities at the office or agency of the Company designated for such purpose pursuant to Section 2.3, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of authorized denominations. 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 definitive Securities. Section 2.10. Cancellation. All Securities surrendered for payment, repurchase by the Company pursuant to Article IV or Article V, conversion, redemption or registration of transfer or exchange shall, if surrendered to any person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it or, if surrendered to the Trustee, shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee. The Company may not issue new Securities to replace Securities it has paid or delivered to the Trustee for cancellation or that any Holder has converted pursuant to Article XII No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 2.10, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with the Trustee's customary procedure. Section 2.11. Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee, any Paying Agent and any agent of the Company, the Trustee or the Paying Agent may treat the person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment (whether in cash or Applicable Stock) of principal of, Redemption Price, Purchase Price or Designated Event Purchase Price, and interest and Additional Interest, if any, on, the Security, for the purpose of receiving cash or Applicable Stock upon conversion and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. Section 2.12. Additional Transfer and Exchange Requirements. (a) Transfer and Exchange of Global Securities. (i) Certificated Securities shall be issued in exchange for interests in the Global Securities only if (x) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for the Global Securities or if it at any time ceases to be a "clearing agency" registered under the Exchange Act, if so required by applicable law or regulation and a successor Depositary is not appointed by the Company within 90 calendar days, or (y) an Event of Default has occurred and is continuing and the Registrar has received a request from the Depositary requesting such exchange. In either case, the Company shall execute, and the Trustee shall, upon receipt of a Company Order (which the Company agrees to deliver promptly), authenticate and deliver Certificated Securities in an aggregate principal amount equal to the principal amount of such Global Securities in exchange therefor. Only Restricted Certificated Securities shall be issued in exchange for beneficial interests in Restricted Global Securities, and only Unrestricted Certificated Securities shall be issued in exchange for beneficial interests in Unrestricted Global Securities. Certificated Securities issued in exchange for beneficial interests in Global Securities shall be registered in such names and shall be in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver or cause to be delivered such Certificated Securities to the Persons in whose name such Securities are so registered. Such exchange shall be effected in accordance with the Applicable Procedures. (ii) Notwithstanding any other provisions of this Indenture other than the provisions set forth in Section 2.12(a)(i), a Global Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. 12 (b) Transfer and Exchange of Certificated Securities. In the event that Certificated Securities are issued in exchange for beneficial interests in Global Securities in accordance with Section 2.12(a)(i), and, on or after such event, Certificated Securities are presented by a Holder to the Registrar with a request: (x) to register the transfer of the Certificated Securities to a person who shall take delivery thereof in the form of Certificated Securities only; or (y) to exchange such Certificated Securities for an equal principal amount of Certificated Securities of other authorized denominations, such Registrar shall register the transfer or make the exchange as requested; provided, however, that the Certificated Securities presented or surrendered for register of transfer or exchange: (i) shall be duly endorsed or accompanied by a written instrument of transfer in accordance with the proviso to the first paragraph of Section 2.6; and (ii) in the case of a Restricted Certificated Security, such request shall be accompanied by the following additional information and documents, as applicable: (A) if such Restricted Certificated Security is being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, or such Restricted Certificated Security is being transferred to the Company or a Subsidiary of the Company, a certification to that effect from such Holder (in substantially the form set forth in the Transfer Certificate); (B) if such Restricted Certificated Security is being transferred to a person the Holder reasonably believes is a QIB in accordance with Rule 144A or pursuant to an effective registration statement under the Securities Act, a certification to that effect from such Holder (in substantially the form set forth in the Transfer Certificate); or (C) if such Restricted Certificated Security is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 or to an institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) pursuant to and in compliance with an exemption from the registration requirements under the Securities Act, a certification to that effect from the Holder (in substantially the form set forth in the Transfer Certificate) and, in the case of a transfer to an institutional accredited investor, a certificate containing certain representations and warranties (in substantially the form set forth in Exhibit B) and, in either case, if the Company or the Registrar so requests, a customary Opinion of Counsel, certificates and other information reasonably acceptable to the Company and the Registrar to the effect that such transfer does not require registration under the Securities Act. (c) Transfer of a Beneficial Interests in a Restricted Global Security for a Beneficial Interest in an Unrestricted Global Security. Any person having a beneficial interest in a Restricted Global Security may upon request, subject to the Applicable Procedures, transfer such beneficial interest to a person who is required or permitted to take delivery thereof in the form of an Unrestricted Global Security. Upon receipt by the Trustee of written instructions, or such other form of instructions as is customary for the Depositary, from the Depositary or its nominee on behalf of any person having a beneficial interest in a Restricted Global Security and the following additional information and documents in such form as is customary for the Depositary from the Depositary or its nominee on behalf of the person having such beneficial interest in the Restricted Global Security (all of which may be submitted by facsimile or electronically): (i) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certification to that effect from the Holder (in substantially the form set forth in the Transfer Certificate); or (ii) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certification to that effect from the Holder (in substantially the form set forth in the Transfer Certificate) and, if the Company or the Trustee so requests, a customary Opinion 13 of Counsel, certificates and other information reasonably acceptable to the Company and the Trustee to the effect that such transfer does not require registration under the Securities Act, the Trustee, as the Registrar, shall reduce or cause to be reduced the aggregate principal amount of the Restricted Global Security by the appropriate principal amount and shall increase or cause to be increased the aggregate principal amount of the Unrestricted Global Security by a like principal amount. Such transfer shall otherwise be effected in accordance with the Applicable Procedures. If no Unrestricted Global Security is then outstanding, the Company shall execute and the Trustee shall, upon receipt of a Company Order (which the Company agrees to deliver promptly), authenticate and deliver an Unrestricted Global Security. (d) Transfer of a Beneficial Interest in an Unrestricted Global Security for a Beneficial Interest in a Restricted Global Security. Any person having a beneficial interest in an Unrestricted Global Security may upon request, subject to the Applicable Procedures, transfer such beneficial interest to a person who is required or permitted to take delivery thereof in the form of a Restricted Global Security (it being understood that only QIBs may own beneficial interests in Restricted Global Securities). Upon receipt by the Trustee of written instructions, or such other form of instructions as is customary for the Depositary, from the Depository or its nominee on behalf of any person having a beneficial interest in an Unrestricted Global Security and the following additional information and documents in such form as is customary for the Depositary, from the Depositary or its nominee on behalf of the person having such beneficial interest in the Unrestricted Global Security (all of which may be submitted by facsimile or electronically): a certification from the Holder (in substantially the form set forth in the Transfer Certificate) to the effect that such beneficial interest is being transferred to a person that the transferor reasonably believes is a QIB in accordance with Rule 144A. The Trustee, as the Registrar, shall reduce or cause to be reduced the aggregate principal amount of the Unrestricted Global Security by the appropriate principal amount and shall increase or cause to be increased the aggregate principal amount of the Restricted Global Security by a like principal amount. Such transfer shall otherwise be effected in accordance with the Applicable Procedures. If no Restricted Global Security is then outstanding, the Company shall execute and the Trustee shall, upon receipt of a Company Order (which the Company agrees to deliver promptly), authenticate and deliver a Restricted Global Security. (e) Transfers of Certificated Securities for Beneficial Interest in Global Securities. In the event that Certificated Securities are issued in exchange for beneficial interests in Global Securities and, thereafter, the events or conditions specified in Section 2.12(a)(i) which required such exchange shall cease to exist, the Company shall mail notice to the Trustee and to the Holders stating that Holders may exchange Certificated Securities or interests in Global Securities by complying with the procedures set forth in this Indenture and briefly describing such procedures and the events or circumstances requiring that such notice be given. Thereafter, if Certificated Securities are presented by a Holder to a Registrar with a request: (x) to register the transfer of such Certificated Securities to a person who shall take delivery thereof in the form of a beneficial interest in a Global Security, which request shall specify whether such Global Security shall be a Restricted Global Security or an Unrestricted Global Security, or (y) to exchange such Certificated Securities for an equal principal amount of beneficial interests in a Global Security, which beneficial interests shall be owned by the Holder transferring such Certificated Securities (provided that in the case of such an exchange, Restricted Certificated Securities may be exchanged only for Restricted Global Securities and Unrestricted Certificated Securities may be exchanged only for Unrestricted Global Securities), the Registrar shall register the transfer or make the exchange as requested by canceling such Certificated Security and causing, or directing the Registrar to cause, the aggregate principal amount of the applicable Global Security to be increased accordingly and, if no such Global Security is then outstanding, the Company shall issue and the Trustee shall, upon receipt of a Company Order (which the Company agrees to deliver promptly) authenticate and deliver a new Global Security; provided, however, that the Certificated Securities presented or surrendered for registration of transfer or exchange: (1) shall be duly endorsed or accompanied by a written instrument of transfer in accordance with the proviso to the first paragraph of Section 2.6; 14 (2) in the case of a Restricted Certificated Security to be transferred for a beneficial interest in an Unrestricted Global Security, such request shall be accompanied by the following additional information and documents, as applicable: (i) if such Restricted Certificated Security is being transferred pursuant to an effective registration statement under the Securities Act, a certification to that effect from such Holder (in substantially the form set forth in the Transfer Certificate); or (ii) if such Restricted Certificated Security is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certification to that effect from such Holder (in substantially the form set forth in the Transfer Certificate) and, if the Company or the Registrar so requests, a customary Opinion of Counsel, certificates and other information reasonably acceptable to the Company and the Trustee to the effect that such transfer does not require registration under the Securities Act; (3) in the case of a Restricted Certificated Security to be transferred or exchanged for a beneficial interest in a Restricted Global Security, such request shall be accompanied by a certification from such Holder (in substantially the form set forth in the Transfer Certificate) to the effect that such Restricted Certificated Security is being transferred to a person the Holder reasonably believes is a QIB (which, in the case of an exchange, shall be such Holder) in accordance with Rule 144A; (4) in the case of an Unrestricted Certificated Security to be transferred or exchanged for a beneficial interest in an Unrestricted Global Security, such request need not be accompanied by any additional information or documents; and (5) in the case of an Unrestricted Certificated Security to be transferred or exchanged for a beneficial interest in a Restricted Global Security, such request shall be accompanied by a certification from such Holder (in substantially, the form set forth in the Transfer Certificate) to the effect that such Unrestricted Certificated Security is being transferred to a person the Holder reasonably believes is a QIB (which, in the case of an exchange, shall be such Holder) in accordance with Rule 144A. (f) Legends. (1) Except as permitted by the following paragraphs (2), (3) and (4), each Global Security and Certificated Security (and all Securities issued in exchange therefor or upon registration of transfer or replacement thereof) shall bear a legend in substantially the form called for by footnote 2 to Exhibit A attached hereto (each a "TRANSFER RESTRICTED SECURITY"), for so long as it is required by this Indenture to bear such legend. Each Transfer Restricted Security shall have attached thereto a certificate (a "TRANSFER CERTIFICATE") in substantially the form called for by footnote 4 to Exhibit A attached hereto. (2) Upon any sale or transfer of a Transfer Restricted Security (x) after the expiration of the holding period applicable to sales of the Securities under Rule 144(k) of the Securities Act, (y) pursuant to Rule 144 or (z) pursuant to an effective registration statement under the Securities Act: (i) in the case of any Restricted Certificated Security, any Registrar shall permit the Holder thereof to exchange such Restricted Certificated Security for an Unrestricted Certificated Security, or (under the circumstances described in Section 2.12(e)) to transfer such Restricted Certificated Security to a transferee who shall take such Security in the form of a beneficial interest in an Unrestricted Global Security, and in each case shall rescind any restriction on the transfer of such Security; provided, however, that the Holder of such Restricted Certificated Security shall, in connection with such exchange or transfer, comply with the other applicable provisions of this Section 2.12; and (ii) in the case of any beneficial interest in a Restricted Global Security, the Trustee shall permit the beneficial owner thereof to transfer such beneficial interest to a transferee who shall take such interest in the form of a 15 beneficial interest in an Unrestricted Global Security and shall rescind any restriction on transfer of such beneficial interest; provided, that such Unrestricted Global Security shall continue to be subject to the provisions of Section 2.12(a)(ii); and provided, further, that the owner of such beneficial interest shall, in connection with such transfer, comply with the other applicable provisions of this Section 2.12. (3) Upon the exchange, registration of transfer or replacement of Securities not bearing the legend described in paragraph (1) above, the Company shall execute, and the Trustee shall authenticate and deliver Securities that do not bear such legend and that do not have a Transfer Certificate attached thereto. (4) After the expiration of the holding period pursuant to Rule 144(k) of the Securities Act, the Company may with the consent of the Holder of a Restricted Global Security or a Restricted Certificated Security, remove any restriction of transfer on such Security, and the Company shall execute, and the Trustee shall authenticate and deliver Securities that do not bear such legend and that do not have a Transfer Certificate attached thereto. (5) Until the expiration of the holding period applicable to sales of the Securities under Rule 144(k) of the Securities Act or a transfer pursuant to Rule 144 or pursuant to an effective registration statement under the Securities Act, the Applicable Stock issued upon conversion of the Securities shall bear the legend in substantially the form called for by Exhibit C attached hereto. (g) Transfers to the Company. Nothing contained in this Indenture or in the Securities shall prohibit the sale or other transfer of any Securities (including beneficial interests in Global Securities) to the Company or any of its Subsidiaries, which Securities shall thereupon be cancelled in accordance with Section 2.10. (h) Amendments to Rule 144(k). Notwithstanding any other provision in this Indenture, if Rule 144(k) as promulgated under the Securities Act is amended to shorten the two-year period under Rule 144(k), then the references to "two years" in the restrictive legend of each Transfer Restricted Security and footnote one to Exhibit A shall be deemed to refer to such shorter period, from and after receipt by the Trustee of the documents described in Section 2.12(e)(2) from the Company or from a Holder of a Transfer Restricted Security; provided that, Transfer Restricted Security shall not be deemed to refer to such shorter period if to do so would be prohibited by, or would otherwise cause a violation of, the U.S. federal securities laws applicable at the time. As soon as practicable after a Responsible Officer of the Company receives notice of the effectiveness of any such amendment to shorten the two-year period under Rule 144(k), unless causing the Transfer Restricted Securities to refer to such shorter period would otherwise be prohibited by, or would otherwise cause a violation of, the U.S. federal securities laws applicable at the time, the Company will provide to the Trustee the documents described in Section 2.12(e)(2) respecting the effectiveness of such amendment. Section 2.13. CUSIP Numbers. The Company may issue the Securities with one or more "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption or repurchase as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption or repurchase and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption or repurchase shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee of any change in the CUSIP numbers. Section 2.14. 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 shall constitute a senior unsecured general obligation of the Company, ranking equally in right of payment with other existing and future senior unsecured Indebtedness of the Company and ranking senior in right of payment to any future Indebtedness of the Company that is expressly made subordinate to the Securities by the terms of such Indebtedness. 16 ARTICLE III REDEMPTION Section 3.1. The Company's Right to Redeem; Notice to Trustee. Prior to December 15, 2008, the Securities shall not be redeemable at the Company's option. On or after December 15, 2008, the Company, at its option, may redeem the Securities in accordance with this Article III for cash at any time as a whole, or from time to time in part, at the Redemption Price. In the event that the Company elects to redeem the Securities on a date that is after any Regular Record Date but on or before the corresponding Interest Payment Date, the Company shall be required to pay any accrued and unpaid interest and Additional Interest, if any, to the holder of the redeemed Security and not the Holder on the corresponding Regular Record Date. If the Company elects to redeem Securities, it shall notify the Trustee in writing of the Redemption Date, the principal amount of Securities to be redeemed and the Redemption Price. The Company shall give this notice to the Trustee by a Company Order at least 30 days before the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee). Section 3.2. Selection of Securities to Be Redeemed. If fewer than all of the outstanding Securities are to be redeemed, unless the procedures of the Depositary provide otherwise, the Trustee shall select the Securities to be redeemed by lot or on a pro rata basis or by another method the Trustee considers fair and appropriate. The Trustee shall make the selection within five Business Days after it receives the notice provided for in Section 3.1 from outstanding Securities not previously called for redemption. Securities and portions of Securities that the Trustee selects shall be in principal amounts of $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called for redemption. The Trustee shall notify the Company promptly of the Securities or portions of the Securities to be redeemed. Securities and portions of Securities that are to be redeemed are convertible by the Holder until 5:00 p.m., New York City time, on the second Business Day immediately preceding the Redemption Date. If any Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption and the Trustee shall select additional Securities to be redeemed in the manner provided in the first paragraph of this Section 3.2 in an amount equal to the Securities that would have been redeemed but for their conversion prior to the termination of their conversion right. Securities which have been converted during a selection of Securities to be redeemed may be treated by the Trustee as outstanding for the purpose of such selection. Section 3.3. Notice of Redemption. At least 20 calendar days but not more than 60 calendar days before a Redemption Date, the Company shall mail a notice of redemption by first-class mail, postage prepaid, to each Holder of Securities to be redeemed. The notice of redemption shall identify the Securities to be redeemed and shall state: (a) the Redemption Date; (b) the Redemption Price; (c) the Conversion Rate and any adjustments thereto; (d) the name and address of the Paying Agent and Conversion Agent; (e) that Securities called for redemption may be converted at any time prior to 5:00 p.m., New York City time, on the second Business Day preceding the Redemption Date; 17 (f) that Holders who want to convert their Securities must satisfy the requirements set forth in Article XII; (g) that Securities called for redemption must be surrendered to the Paying Agent to collect the Redemption Price; (h) if fewer than all of the outstanding Securities are to be redeemed, the certificate numbers, if any, and principal amounts of the particular Securities to be redeemed; (i) that, unless the Company defaults in making payment of such Redemption Price, interest and Additional Interest, if any, on Securities called for redemption shall cease to accrue on and after the Redemption Date; (j) the CUSIP number(s) of the Securities; and (k) any other information the Company wants to present. At the Company's request, the Trustee shall give the notice of redemption in the Company's name and at the Company's expense; provided, however, that the Company makes such request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such notice of redemption must be given to Holders in accordance with this Section 3.3; provided, further, that the text of the notice of redemption shall be prepared by the Company. Section 3.4. Effect of Notice of Redemption. Once notice of redemption is given, Securities called for redemption become due and payable on the Redemption Date and at the Redemption Price, except for Securities which are converted in accordance with the terms of this Indenture. Upon surrender to the Paying Agent, such Securities shall be paid at the Redemption Price. Section 3.5. Deposit of Redemption Price. Prior to 10:00 a.m., New York City time, on the applicable Redemption Date, the Company shall deposit with the Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.4) an amount of cash (in immediately available funds if deposited on the Redemption Date) sufficient to pay the aggregate Redemption Price of all Securities or portions thereof which are to be redeemed as of such Redemption Date other than Securities or portions of Securities called for redemption which on or prior thereto have been delivered by the Company to the Trustee for cancellation or have been converted. If the Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m., New York City time, on the applicable Redemption Date, cash sufficient to pay the Redemption Price of any Securities for which notice of redemption is given, then, on such Redemption Date, such Securities shall cease to be outstanding and interest and Additional Interest, if any, on such Securities shall cease to accrue, whether or not such Securities are delivered to the Paying Agent, and the rights of the Holders in respect thereof shall terminate (other than the right to receive the Redemption Price upon delivery of such Securities). Section 3.6. Securities Redeemed in Part. Any Certificated Security which is to be redeemed only in part shall be surrendered at the office of the Paying Agent and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without charge, a new Security or Securities, of any authorized denomination as requested by such Holder in aggregate principal amount equal to the unredeemed portion of the Security surrendered. Section 3.7. Repayment to the Company. To the extent that the aggregate amount of cash deposited by the Company pursuant to Section 3.5 exceeds the aggregate Redemption Price of the Securities or portions thereof which the Company is 18 redeeming as of the Redemption Date, then, promptly after the Redemption Date, the Paying Agent shall return any such excess to the Company together with interest, if any, thereon. Section 3.8. No Sinking Fund. The Securities shall not have a sinking fund. ARTICLE IV PURCHASE AT THE OPTION OF HOLDERS ON SPECIFIC DATES Section 4.1. Optional Put. (a) Each Holder shall have the right, at the Holder's option, but subject to the provisions of this Section 4.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, all of such Holder's Securities not theretofore called for redemption, or any portion of the Principal Amount thereof that is equal to $1,000 or an integral multiple thereof, as directed by such Holder pursuant to this Section 4.1, on each of December 15, 2008, December 15, 2013 and December 15, 2018 (each a "PURCHASE DATE"). The Company shall be required to purchase such Securities at a purchase price in cash equal to 100% of the Principal Amount plus any accrued and unpaid cash interest (including any Additional Interest) to, but excluding, the Purchase Date (the "PURCHASE PRICE"). In the event that a Holder elects to require the Company to purchase such Holder's Securities, the Company shall be required to pay accrued and unpaid interest and Additional Interest, if any, to the holder of the repurchased Securities and not to the Holder on the Regular Record Date. (b) No later than 22 Business Days prior to each Purchase Date, the Company shall mail a written notice of the purchase right by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder at its address shown in the Register of the Registrar, and to beneficial owners as required by applicable law. The notice shall include a form of Purchase Notice to be completed by the Holder and shall briefly state, as applicable: (i) the date by which the Purchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.1; (ii) the Purchase Date; (iii) the Purchase Price; (iv) the name and address of the Paying Agent and the Conversion Agent; (v) the Conversion Rate and any adjustments thereto; (vi) that the Securities as to which a Purchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to Article XII of this Indenture only if the Purchase Notice has been withdrawn in accordance with the terms of this Indenture; (vii) that the Securities must be surrendered to the Paying Agent to collect payment; (viii) that the Purchase Price for any Security as to which a Purchase Notice has been duly given and not withdrawn shall be paid promptly following the later of the Purchase Date and the time of surrender of such Security as described in Section 4.1(b)(vii); (ix) the procedures the Holder must follow to exercise its rights under this Section 4.1 and a brief description of such rights; 19 (x) briefly, the conversion rights of the Securities, if any, and that the Holder must satisfy the requirements set forth in the Indenture in order to convert the Securities; (xi) the procedures for withdrawing a Purchase Notice, including a form of notice of withdrawal; (xii) that, unless the Company defaults in making payment of such Purchase Price, interest (including any Additional Interest), if any, on Securities surrendered for purchase by the Company shall cease to accrue on and after the Purchase Date; and (xiii) the CUSIP number(s) of the Securities. At the Company's request, the Trustee shall give the notice of purchase right in the Company's name and at the Company's expense; provided, however, that the Company makes such request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such notice of purchase right must be given to the Holders in accordance with this Section 4.1(b); provided, further, that the text of the notice of purchase right shall be prepared by the Company. If any of the Securities is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Global Securities. Simultaneously with delivering the written notice pursuant to this Section 4.1(b), the Company shall publish a notice containing all information specified in such written notice in a newspaper of general circulation in New York, New York, or publish such information on the Company's website, or through such other public medium that reasonably could be expected to inform Holders of such information. (c) A Holder may exercise its rights specified in clause (a) of this Section 4.1 upon delivery of a written notice (which shall be in substantially the form included on the reverse side of the Securities entitled "Option of Holder to Elect Purchase" hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "PURCHASE NOTICE") to the Paying Agent at any time from the opening of business on the date that is 22 Business Days prior to the relevant Purchase Date until the close of business on the second Business Day prior to such Purchase Date. The Purchase Notice delivered by a Holder shall state (i) the relevant Purchase Date, (ii) if certificated Securities, the certificate number or numbers of the Security or Securities which the Holder shall deliver to be purchased (if not certificated, the notice must comply with Applicable Procedures), (iii) the portion of the Principal Amount of the Security which the Holder shall deliver to be purchased, which portion must be $1,000 or an integral multiple thereof, and (iv) that such Security shall be purchased pursuant to the terms and conditions specified in the Securities and this Indenture. Delivery of a Security to the Paying Agent by book-entry transfer or physical delivery prior to, on or after the applicable Purchase Date (together with all necessary endorsements) at the offices of the Paying Agent is a condition to receipt by the Holder of the Purchase Price therefor; provided, however, that such Purchase Price shall be so paid pursuant to this Section 4.1 only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Notice, as determined by the Company. The Company shall purchase from the Holder thereof, pursuant to this Section 4.1, a portion of a Security if the Principal Amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the purchase of all of a Security pursuant to Section 4.1 through Section 4.7 also apply to the purchase of such portion of such Security. The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Purchase Notice may be delivered or withdrawn and such Securities may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time. 20 Section 4.2. Effect of Purchase Notice; Withdrawal of Purchase Notice. (a) Upon receipt by the Paying Agent of the Purchase Notice specified in Section 4.1(c), the Holder of the Security in respect of which such Purchase Notice was given shall (unless such Purchase Notice is withdrawn as specified in the following paragraph) thereafter be entitled to receive solely the Purchase Price with respect to such Security. Such Purchase Price shall be paid to such Holder, subject to receipt of cash by the Paying Agent, promptly following the later of (a) the Purchase Date with respect to such Security (provided the conditions in Section 4.1(c) have been satisfied) and (b) the time of book-entry transfer or delivery of such Security to the Paying Agent by the Holder thereof in the manner required by Section 4.1(c). Securities in respect of which a Purchase Notice has been given by the Holder thereof may not be converted pursuant to Article XII on or after the date of the delivery of such Purchase Notice unless such Purchase Notice has first been validly withdrawn as specified in the following paragraph. (b) A Purchase Notice may be withdrawn by means of a written notice (which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of withdrawal delivered by the Holder to the Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Purchase Date, specifying (a) the Principal Amount of the Security or portion thereof (which must be a Principal Amount of $1,000 or an integral multiple of $1,000 in excess thereof) with respect to which such notice of withdrawal is being submitted, (b) if certificated Securities have been issued, the certificate numbers of the withdrawn Securities, or if not certificated, such notice must comply with Applicable Procedures, and (c) the Principal Amount, if any, which remains subject to the Purchase Notice. If a Purchase Notice has been properly withdrawn pursuant to this Section 4.2(b) prior to the Purchase Date, the Company shall not be obligated to purchase those Securities so identified in such notice of withdrawal. Section 4.3. Deposit of Purchase Price. Prior to 10:00 a.m., New York City time, on the applicable Purchase Date, the Company shall deposit with the Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.4) an amount of cash (in immediately available funds if deposited on such Business Day) sufficient to pay the aggregate Purchase Price of all the Securities or portions thereof which are to be purchased as of such Purchase Date. If the Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m., New York City time, on the applicable Purchase Date, cash sufficient to pay the Purchase Price of any Securities for which a Purchase Notice has been tendered and not withdrawn pursuant to Section 4.2(b), then, on such Purchase Date, such Securities shall cease to be outstanding and interest and Additional Interest, if any, on such Securities shall cease to accrue, whether or not such Securities are delivered to the Paying Agent, and the rights of the Holders in respect thereof shall terminate (other than the right to receive the Purchase Price upon delivery of such Securities). The Company shall publicly announce the Principal Amount of Securities purchased on the applicable Purchase Date on such date or as soon as practicable thereafter, by publishing a notice containing such information in a newspaper of general circulation in New York, New York or by publishing such information on the Company's website, or through such other public medium that reasonably could be expected to inform Holders of such information. Section 4.4. Securities Purchased in Part. Any Certificated Security which is to be purchased only in part shall be surrendered at the office of the Paying Agent (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 such Holder's attorney duly authorized in writing) and promptly after the applicable Purchase Date the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without charge, a new Security or Securities, of any authorized denomination or denominations as may be requested by such Holder, in aggregate principal amount equal to, and in exchange for, the portion of the Principal Amount of the Security so surrendered that is not purchased. 21 Section 4.5. Covenant to Comply With Securities Laws Upon Purchase of Securities. When complying with the provisions of Section 4.1 hereof (provided that such offer or purchase constitutes an "issuer tender offer" for purposes of Rule 13e-4 (which term, as used herein, includes any successor provision thereto) under the Exchange Act at the time of such offer or purchase), and subject to any exemptions available under applicable law, the Company shall: (a) if applicable, comply with Rule 13e-4 and Rule 14e-1 (or any successor provision) under the Exchange Act; (b) file the related Schedule TO (or any successor schedule, form or report) if required under the Exchange Act; and (c) otherwise comply with all United States federal and state securities laws so as to permit the rights and obligations under this Article IV to be exercised in the time and in the manner specified therein. Section 4.6. Repayment to the Company. To the extent that the aggregate amount of cash deposited by the Company pursuant to Section 4.3 exceeds the aggregate Purchase Price of the Securities or portions thereof which the Company is obligated to purchase as of the applicable Purchase Date, then, promptly after such Purchase Date, the Paying Agent shall return any such excess to the Company, together with interest, if any, thereon. Section 4.7. No Purchase Upon Event of Default. There shall be no purchase of any Securities pursuant to this Article IV if there has occurred (prior to, on or after, as the case may be, the giving by each of the Holders of such Securities of the required Purchase Notice but, in any event, prior to the applicable Purchase Date) and is continuing, as of such Purchase Date, an Event of Default (other than a default in the payment of the Purchase Price with respect to such Securities). The Paying Agent shall promptly return to the respective Holders thereof any Securities (a) with respect to which a Purchase Notice has been delivered in compliance with this Indenture, or (b) held by it during the continuance of an Event of Default (other than a default in the payment of the Purchase Price with respect to such Securities), in which case, upon such return, the Purchase Notice with respect thereto shall be deemed to have been withdrawn. ARTICLE V PURCHASE AT THE OPTION OF HOLDERS UPON A DESIGNATED EVENT Section 5.1. Designated Event Put. (a) In the event that a Designated Event shall occur at any time prior to December 15, 2023, each Holder shall have the right, at the Holder's option, but subject to the provisions of this Section 5.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, all of such Holder's Securities not theretofore called for redemption, or any portion of the Principal Amount thereof that is equal to $1,000 or an integral multiple thereof, as directed by such Holder pursuant to this Section 5.1, on the date designated by the Company (the "DESIGNATED EVENT PURCHASE DATE") that is a Business Day no later than 35 Business Days after the date of notice pursuant to Section 5.1(b) of the occurrence of a Designated Event (subject to extension to comply with applicable law). The Company shall be required to purchase such Securities at a purchase price in cash equal to 100% of the Principal Amount plus any accrued and unpaid interest (including any Additional Interest) to, but excluding, the Designated Event Purchase Date (the "DESIGNATED EVENT PURCHASE PRICE"). In the event that a Designated Event Purchase Date is a date that is after any Regular Record Date but on or before the corresponding Interest Payment Date, the Company shall be required to pay accrued and unpaid interest and Additional Interest, if any, to the holder of the repurchased Security and not the Holder on the Regular Record Date. 22 (b) No later than 20 calendar days after the occurrence of a Designated Event, the Company shall mail a written notice of the Designated Event by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as Paying Agent) and to each Holder at its address shown in the Register of the Registrar, and to beneficial owners as required by applicable law. The notice shall include a form of Designated Event Purchase Notice to be completed by the Holder and shall briefly state, as applicable: (i) the date of such Designated Event and, briefly, the events causing such Designated Event; (ii) the date by which the Designated Event Purchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 5.1; (iii) the Designated Event Purchase Date; (iv) the Designated Event Purchase Price; (v) the name and address of the Paying Agent and Conversion Agent; (vi) the Conversion Rate and any adjustments thereto; (vii) that the Securities as to which a Designated Event Purchase Notice has been given may be converted into Common Stock pursuant to Article XII of this Indenture only if the Designated Event Purchase Notice has been withdrawn in accordance with the terms of this Indenture; (viii) that the Securities must be surrendered to the Paying Agent to collect payment; (ix) that the Designated Event Purchase Price for any Security as to which a Designated Event Purchase Notice has been duly given and not withdrawn shall be paid promptly following the later of the Designated Event Purchase Date and the time of surrender of such Security as described in Section 5.1(b)(viii); (x) the procedures the Holder must follow to exercise rights under this Section 5.1 and a brief description of such rights; (xi) briefly, the conversion rights of the Securities, and that the Holder must satisfy the requirements set forth in the Indenture in order to convert the Securities; (xii) the procedures for withdrawing a Designated Event Purchase Notice, including a form of notice of withdrawal; (xiii) that, unless the Company defaults in making payment of such Designated Event Purchase Price, interest (including any Additional Interest), if any, on Securities surrendered for purchase by the Company shall cease to accrue on and after the Designated Event Purchase Date; and (xiv) the CUSIP number(s) of the Securities. At the Company's request, the Trustee shall give the notice of purchase right in the Company's name and at the Company's expense; provided, however, that the Company makes such request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such notice of purchase right must be given to the Holders in accordance with this Section 5.1(b); provided, further, that the text of the notice of purchase right shall be prepared by the Company. If any of the Securities is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Global Securities. 23 Simultaneously with delivering the written notice pursuant to this Section 5.1(b), the Company shall publish a notice containing all information specified in such written notice in a newspaper of general circulation in New York, New York or publish such information on the Company's website, or through such other public medium that reasonably could be expected to inform Holders of such information. (c) A Holder may exercise its rights specified in clause (a) of this Section 5.1 upon delivery of a written notice (which shall be in substantially the form included on the reverse side of the Securities entitled "Option of Holder to Elect Purchase" hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "DESIGNATED EVENT PURCHASE NOTICE") to the Paying Agent at any time on or before the 20th Business Day after the date of the Company's notice of the Designated Event (subject to extension to comply with applicable law). The Designated Event Purchase Notice delivered by a Holder shall state (i) the Designated Event Purchase Date, (ii) if certificated Securities, the certificate number or numbers of the Security or Securities which the Holder shall deliver to be purchased (if not certificated, the notice must comply with Applicable Procedures), (iii) the portion of the Principal Amount of the Security which the Holder shall deliver to be purchased, which portion must be $1,000 or an integral multiple thereof, and (iv) that such Security shall be purchased pursuant to the terms and conditions specified in the Securities and this Indenture. Delivery of a Security (together with all necessary endorsements) to the Paying Agent by book-entry transfer or physical delivery prior to, on or after the Designated Event Purchase Date at the offices of the Paying Agent is a condition to receipt by the Holder of the Designated Event Purchase Price therefor; provided, however, that such Designated Event Purchase Price shall be so paid pursuant to this Section 5.1 only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Designated Event Purchase Notice, as determined by the Company. The Company shall purchase from the Holder thereof, pursuant to this Section 5.1, a portion of a Security if the Principal Amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of the Indenture that apply to the purchase of all of a Security pursuant to Section 5.1 through Section 5.6 also apply to the purchase of such portion of such Security. A Paying Agent shall promptly notify the Company of the receipt by it of any Designated Event Purchase Notice or written withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Designated Event Purchase Notice may be delivered or withdrawn and such Securities may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time. Section 5.2. Effect of Designated Event Purchase Notice. (a) Upon receipt by the Paying Agent of the Designated Event Purchase Notice specified in Section 5.1(c), the Holder of the Security in respect of which such Designated Event Purchase Notice was given shall (unless such Designated Event Purchase Notice is withdrawn as specified in the following paragraph) thereafter be entitled to receive the Designated Event Purchase Price with respect to such Security. Such Designated Event Purchase Price shall be paid to such Holder, subject to receipt of cash by the Paying Agent, promptly following the later of (a) the Designated Event Purchase Date with respect to such Security (provided the conditions in Section 5.1(c) have been satisfied) and (b) the time of book-entry transfer or delivery of such Security to the Paying Agent by the Holder thereof in the manner required by Section 5.1(c). Securities in respect of which a Designated Event Purchase Notice has been given by the Holder thereof may not be converted pursuant to Article XII on or after the date of the delivery of such Designated Event Purchase Notice unless such Designated Event Purchase Notice has first been validly withdrawn as specified in the following paragraph. (b) A Designated Event Purchase Notice may be withdrawn by means of a written notice (which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of withdrawal delivered by the Holder to the Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Designated Event Purchase Date, specifying (a) the Principal Amount of the Security or portion thereof (which must be a Principal Amount of $1,000 or an integral 24 multiple of $1,000 in excess thereof) with respect to which such notice of withdrawal is being submitted, (b) if certificated Securities have been issued, the certificate numbers of the withdrawn Securities, or if not certificated, such notice must comply with Applicable Procedures, and (c) the Principal Amount, if any, which remains subject to the Designated Event Purchase Notice. If a Designated Event Purchase Notice has been properly withdrawn pursuant to this Section 5.2(b) prior to the Designated Event Purchase Date, the Company shall not be obligated to purchase those Securities so identified in such notice of withdrawal. Section 5.3. Deposit of Designated Event Purchase Price. Prior to 10:00 a.m., New York City time, on the applicable the Designated Event Purchase Date or the Business Day following the Designated Event Purchase Date, the Company shall deposit with the Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.4) an amount of cash (in immediately available funds if deposited on such Business Day) sufficient to pay the aggregate Designated Event Purchase Price of all the Securities or portions thereof which are to be purchased as of such Designated Event Purchase Date. If the Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m., New York City time, on the applicable Designated Event Purchase Date, cash sufficient to pay the Designated Event Purchase Price of any Securities for which a Designated Event Purchase Notice has been tendered and not withdrawn pursuant to Section 5.2(b), then, on such Designated Event Purchase Date, such Securities shall cease to be outstanding and interest and Additional Interest, if any, on such Securities shall cease to accrue, whether or not such Securities are delivered to the Paying Agent, and the rights of the Holders in respect thereof shall terminate (other than the right to receive the Designated Event Purchase Price upon delivery of such Securities). The Company shall publicly announce the Principal Amount of Securities purchased as a result of such Designated Event on or as soon as practicable after the Designated Event Purchase Date by publishing a notice containing such information in a newspaper of general circulation in New York, New York or by publishing such information on the Company's website, or through such other public medium that reasonably could be expected to inform Holders of such information. Section 5.4. Securities Purchased in Part. Any Certificated Security that is to be purchased only in part shall be surrendered at the office of the Paying Agent (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 such Holder's attorney duly authorized in writing) and promptly after the Designated Event Purchase Date the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without charge, a new Security or Securities, of any authorized denomination or denominations as may be requested by such Holder, in aggregate Principal Amount equal to, and in exchange for, the portion of the Principal Amount of the Security so surrendered that is not purchased. Section 5.5. Covenant to Comply With Securities Laws Upon Purchase of Securities. When complying with the provisions of Section 5.1 hereof (provided that such offer or purchase constitutes an "issuer tender offer" for purposes of Rule 13e-4 (which term, as used herein, includes any successor provision thereto) under the Exchange Act at the time of such offer or purchase), and subject to any exemptions available under applicable law, the Company shall: (a) if applicable, comply with Rule 13e-4 and Rule 14e-1 (or any successor provision) under the Exchange Act; (b) file the related Schedule TO (or any successor schedule, form or report) if required under the Exchange Act; and (c) otherwise comply with all United States federal and state securities laws so as to permit the rights and obligations under this Article V to be exercised in the time and in the manner specified therein. 25 Section 5.6. Repayment to the Company. To the extent that the aggregate amount of cash deposited by the Company pursuant to Section 5.3 exceeds the aggregate Designated Event Purchase Price of the Securities or portions thereof which the Company is obligated to purchase as of the Designated Event Purchase Date then, promptly after the Designated Event Purchase Date, the Paying Agent shall return any such excess to the Company together with interest, if any, thereon. ARTICLE VI COVENANTS Section 6.1. Payment of Securities. The Company shall pay interest on the Securities as provided in the Securities. The Company shall promptly make all payments in respect of the Securities on the dates and in the manner provided in the Securities or pursuant to this Indenture. Principal amount, Redemption Price, Purchase Price and Designated Event Purchase Price and accrued and unpaid interest and Additional Interest, if any, shall be considered paid on the applicable date due if by 10:00 a.m., New York City time, on such date the Paying Agent holds, in accordance with this Indenture, cash or securities, if permitted hereunder, sufficient to pay all such amounts then due. The Company shall, to the fullest extent permitted by law, pay interest on overdue principal and overdue installments of interest and Additional Interest, if any, at the rate borne by the Securities per annum. All references in this Indenture or the Securities to interest shall be deemed to include Additional Interest, if any, payable pursuant to the Registration Rights Agreement. Payment of the principal of and interest and Additional Interest, if any, on the Securities shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts or in Applicable Stock, as the case may be. Subject to Section 3.1, Section 4.1 and and Section 5.1, the Company shall pay interest and Additional Interest, if any, on the Securities to the Person in whose name the Securities are registered at the close of business on the Regular Record Date next preceding the corresponding Interest Payment Date. Any such interest and Additional Interest, if any, not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may be paid (a) to the Person in whose name the Securities are registered at the close of business on a Special Record Date for the payment of such defaulted interest and Additional Interest, if any, to be fixed by the Trustee, notice whereof shall be given to the Holders not less than 10 calendar days prior to such Special Record Date or (b) at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange. The Holder must surrender the Securities to the Paying Agent to collect payment of principal. Payment of interest and Additional Interest, if any, on Certificated Securities in the aggregate principal amount of $5,000,000 or less shall be made by check mailed to the address of the Person entitled thereto as such address appears in the Register, and payment of interest and Additional Interest, if any, on Certificated Securities in aggregate principal amount in excess of $5,000,000 shall be made by wire transfer in immediately available funds at the election of such Holder. Notwithstanding the foregoing, so long as the Securities are registered in the name of a Depositary or its nominee, all payments with respect to the Securities shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. Section 6.2. SEC and Other Reports to the Trustee. (a) The Company shall ensure delivery to the Trustee within 15 calendar days after it files such annual and quarterly reports, information, documents and other reports with the SEC, copies of its annual report and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act in accordance with TIA Section 314(a). In the event the Company is at any time no longer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, it shall continue to provide the Trustee with reports containing substantially the same information as would have been required to be filed with the SEC had the Company continued to have been subject to such reporting requirements. In such 26 event, such reports shall be provided at the times the Company would have been required to provide reports had it continued to have been subject to such reporting requirements. The Company also shall comply with the other provisions of TIA Section 314(a). Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely conclusively on Officers' Certificates). The Trustee shall have no duty or responsibility to review such reports, information or documents. (b) The Company intends to file the reports referred to in paragraph (a) above in this Section 6.2 hereof with the SEC in electronic form pursuant to Regulation S-T of the SEC using the SEC's Electronic Data Gathering, Analysis and Retrieval ("EDGAR") system. The Company shall notify the Trustee in the manner prescribed herein of each such filing. The Trustee is hereby authorized and directed to access the EDGAR system for purposes of retrieving the reports so filed. Compliance with the foregoing shall constitute delivery by the Company of such reports to the Trustee in compliance with the provisions of TIA Section 314(a). The Trustee shall have no duty to search for or obtain any electronic or other filings that the Company makes with the SEC, regardless of whether such filings are periodic, supplemental or otherwise. Delivery of the reports, information and documents to the Trustee pursuant to this Section 6.2(b) shall be solely for the purposes of compliance with this Section 6.2(b) and with TIA Section 314(a). The Trustee's receipt of such reports, information and documents shall not constitute notice to it of the consent thereof or of any matter determinable from the content thereof, including the Company's compliance with any of its covenants hereunder, as to which the Trustee is entitled to rely upon Officers' Certificates. Section 6.3. Compliance Certificate. The Company shall deliver to the Trustee within 120 calendar days after the end of each fiscal year of the Company an Officers' Certificate, stating whether or not to the knowledge of the signers thereof, the Company is in compliance with all conditions and covenants under this Indenture. Section 6.4. Further Instruments and Acts. Upon request of the Trustee, or as otherwise necessary, 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. Section 6.5. Maintenance of Office or Agency of the Trustee, Registrar, Paying Agent and Conversion Agent. The Company shall maintain in the Borough of Manhattan, New York, New York, an office or agency of the Trustee, Registrar, Paying Agent and Conversion Agent where Securities may be presented or surrendered for payment, where Securities may be surrendered for registration of transfer, exchange, redemption, repurchase or conversion and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The office of Wilmington Trust Company located in New York City at 520 Madison Avenue, 33rd Floor, New York, NY 10022, shall initially be such office or agency for all of the aforesaid purposes. The Company shall give prompt written notice to the Trustee of the location, and of any change in the location, of any such office or agency (other than a change in the location of the office of the Trustee). If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 13.2. 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 shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, New York, New York, for such purposes. 27 Section 6.6. Delivery of Information Required Under Rule 144A. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the request of a Holder or any beneficial owner of Securities or holder or beneficial owner of Common Stock issued upon conversion thereof, the Company shall promptly furnish or cause to be furnished the information required pursuant to Rule 144A(d)(4) under the Securities Act to such Holder or any beneficial owner of Securities or holder or beneficial owner of Common Stock, or to a prospective purchaser of any such security designated by any such holder, as the case may be, to the extent required to permit compliance by such Holder or holder with Rule 144A under the Securities Act in connection with the resale of any such security. Whether a person is a beneficial owner shall be determined by the Company to the Company's reasonable satisfaction. Section 6.7. Waiver of Stay, Extension or Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or other law wherever enacted, now or at any time hereafter in force, which would prohibit or forgive the Company from paying all or any portion of the principal amount, Redemption Price, Purchase Price or Designated Event Purchase Price in respect of Securities, or any interest and Additional Interest, if any, on such amounts, as contemplated herein, 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 shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted. Section 6.8. Statement by Officers as to Default. The Company shall deliver to the Trustee, as soon as practicable and in any event within five Business Days after the Company becomes aware of the occurrence of any Default or Event of Default, an Officers' Certificate setting forth the details of such Default or Event of Default and the action which the Company proposes to take with respect thereto. ARTICLE VII SUCCESSOR CORPORATION Section 7.1. When Company May Merge or Transfer Assets. The Company shall not consolidate with or merge with or into any other person or convey, transfer, sell, lease or otherwise dispose of all or substantially all of its properties and assets to any person, unless: (a) either (i) the Company shall be the continuing corporation or (ii) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer, sale, lease or other disposition all or substantially all of the properties and assets of the Company substantially as an entirety (1) shall be organized and validly existing under the laws of the United States or any State thereof or the District of Columbia and (2) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture; (b) immediately after giving effect to such transaction, no Default shall have occurred and be continuing; and (c) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer, sale, lease or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article VII and that all conditions precedent herein provided for relating to such transaction have been satisfied. 28 For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the properties and assets of one or more Subsidiaries, which, if such assets were owned by the Company, together with the assets of all of the other Subsidiaries of the Company, would constitute all or substantially all of the properties and assets of the Company, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company unless such transfer is to the Company or another Subsidiary. The successor Person formed by such consolidation or into which the Company is merged or the successor Person to which such conveyance, transfer, sale, 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, sale, lease or other disposition and any obligations 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 11.6, the Company, the Trustee and the successor Person shall enter into a supplemental indenture to evidence the succession and substitution of such successor Person and such discharge and release of the Company. ARTICLE VIII DEFAULTS AND REMEDIES Section 8.1. Events of Default. So long as any Securities are outstanding, each of the following shall be an "EVENT OF DEFAULT": (a) the Company defaults in the payment of the principal amount of any Security when the same becomes due and payable as therein provided or as provided in this Indenture, whether at Stated Maturity or by declaration of acceleration; (b) the Company defaults in the payment of any accrued and unpaid interest on any Security and Additional Interest, if any, in each case, when due and payable, and such default shall continue for a period of 30 days; (c) the Company fails to convert any portion of the principal amount of any Security following the exercise by the Holder of the right to convert such Security into Common Stock pursuant to and in accordance with Article XII unless the Company elects pursuant to Section 12.13, to deliver, in lieu of Common Stock, cash or a combination of cash and Common Stock, and fails to deliver such cash or such combination of cash and Common Stock; (d) the Company defaults in its obligation to redeem any Security, or any portion thereof, called for redemption by the Company pursuant to and in accordance with Article III and; (e) the Company defaults in its obligation to purchase any Security, or any portion thereof, upon the exercise by the Holder of such Holder's right to require the Company to purchase such Securities pursuant to and in accordance with Article IV or Article V; (f) the Company defaults in its obligation to provide notice in the event of a Designated Event in accordance with Section 5.1(b); (g) there shall be a default in the performance, or breach, of any covenant or agreement of the Company under this Indenture (other than a default in the performance or breach of a covenant or agreement which is specifically dealt with in clause (a), (b), (d) or (e)) and such default or breach shall continue for a period of 60 days after written notice has been given, by certified mail, (1) to the Company by the Trustee or (2) to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Securities then outstanding; 29 (h) there shall have occurred a default under any credit agreement, mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness of the Company or any of its Subsidiaries whether such Indebtedness now exists, or is created after the date of this Indenture, which default (i) involves the failure to pay principal of or any premium or interest on such Indebtedness in an amount in excess of $7.5 million when such Indebtedness becomes due and payable at the stated maturity thereof, and such default shall continue after any applicable grace period or (ii) results in the acceleration of such Indebtedness unpaid prior to the stated maturity thereof (without such acceleration being rescinded or annulled) and, in the case of (ii), the principal amount of such Indebtedness, together with the principal amount of any other Indebtedness so unpaid at its stated maturity or the stated maturity of which has been so accelerated, aggregates $10,000,000 or more; (i) there shall be a failure by the Company or any of its Subsidiaries to pay final judgments not covered by insurance aggregating in excess of $7,500,000, which judgments are not paid, discharged or stayed for a period of 60 calendar days; and (j) the Company or any Designated Subsidiary, or any group of two or more Subsidiaries that, taken as a whole, would constitute a Designated Subsidiary, pursuant to or under or within the meaning of any Bankruptcy Law: (i) commences a voluntary case or proceeding; (ii) consents to the entry of any order for relief against it in an involuntary case or proceeding or the commencement of any case against it; (iii) consents to the appointment of a Custodian of it or for any substantial part of its property; (iv) makes a general assignment for the benefit of its creditors; (v) files a petition in bankruptcy or answer or consent seeking reorganization or relief; or (vi) consents to the filing of such petition or the appointment of or taking possession by a Custodian; or (k) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (i) is for relief against the Company or any Designated Subsidiary in an involuntary case or proceeding, or adjudicates the Company or any Designated Subsidiary insolvent or bankrupt; (ii) appoints a Custodian of the Company or any Designated Subsidiary or for any substantial part of the property of either; or (iii) orders the winding up or liquidation of the Company or any Designated Subsidiary, and the order of decree remains unstayed and in effect for 60 days. Section 8.2. Acceleration. If an Event of Default (other than an Event of Default specified in Section 8.1(j) or Section 8.1(k) with respect to the Company) occurs and is continuing (including an Event of Default specified in Section 8.1(j) or Section 8.1(k) with respect to one or more Designated Subsidiaries), the Trustee by notice to the Company, or the Holders of at least 25% in aggregate principal amount of the Securities at the time outstanding by notice to the Company and the Trustee, may declare the principal amount plus accrued and unpaid interest and Additional Interest, if any, on all the Securities to be immediately due and payable. 30 Upon such a declaration, such accelerated amount shall be due and payable immediately. If an Event of Default specified in Section 8.1(j) or Section 8.1(k) occurs with respect to the Company and is continuing, the principal amount plus accrued and unpaid interest and Additional Interest, if any, on all the Securities shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. The Holders of a majority in aggregate principal amount of the Securities at the time outstanding, by notice to the Trustee (and without notice to any other Holder) may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of the principal amount plus accrued and unpaid interest and Additional Interest, if any, that have become due solely as a result of acceleration and if all amounts due to the Trustee under Section 9.7 have been paid. No such rescission shall affect any subsequent Default or impair any right consequent thereto. Section 8.3. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may, but shall not be obligated to, pursue any available remedy to collect the payment of the principal amount plus accrued and unpaid interest and Additional Interest, if any, on the Securities or to enforce the performance of any provision of the Securities or this Indenture. The Trustee may maintain a proceeding even if the Trustee does not possess any of the Securities or does not produce any of the Securities in the proceeding. 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 constitute a waiver of, or acquiescence in, the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative. Section 8.4. Waiver of Past Defaults. Subject to Section 8.7 and Section 11.2, the Holders of a majority in aggregate principal amount of the Securities at the time outstanding, by notice to the Trustee (and without notice to any other Holder), may waive an existing Default and its consequences except: (a) an Event of Default described in Section 8.1(a), Section 8.1(b), Section 8.1(d) or Section 8.1(e); (b) a Default which constitutes a failure to convert any Security in accordance with the terms of Article XII; or (c) a Default in respect of any provision of this Indenture or the Securities, which, under Section 11.2, cannot be amended or modified without the consent of each Holder affected thereby. When a Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or impair any consequent right. This Section 8.4 shall be in lieu of Section 316(a)1(B) of the TIA and such Section 316(a)1(B) is hereby expressly excluded from this Indenture, as permitted by the TIA. Section 8.5. Control by Majority. The Holders of a majority in aggregate principal amount of the Securities at the time outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines in good faith is prejudicial to the rights of other Holders or would involve the Trustee in personal liability unless the Trustee is provided indemnity satisfactory to it. This Section 8.5 shall be in lieu of Section 316(a)1(A) of the TIA and such Section 316(a)1(A) is hereby expressly excluded from this Indenture, as permitted by the TIA. Section 8.6. Limitation on Suits. A Holder may not pursue any remedy with respect to this Indenture or the Securities unless: (a) the Holder gives to the Trustee written notice stating that an Event of Default is continuing; 31 (b) the Holders of at least 25% in aggregate principal amount of the Securities at the time outstanding make a written request to the Trustee to pursue the remedy; (c) such Holder or Holders provide to the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense; (d) the Trustee does not comply with the request within 60 days after receipt of such notice, request and offer of security or indemnity; and (e) the Holders of a majority in aggregate principal amount of the Securities at the time outstanding do not give the Trustee a direction inconsistent with the request during such 60-day period. A Holder may not use this Indenture to prejudice the rights of any other Holder or to obtain a preference or priority over any other Holder. Section 8.7. Rights of Holders to Receive Payment or to Convert. Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of the principal amount, Redemption Price, Purchase Price, Designated Event Purchase Price or interest and Additional Interest, if any, in respect of the Securities held by such Holder, on or after the respective due dates expressed in the Securities and in this Indenture, and to convert such Securities in accordance with Article XII, or to bring suit for the enforcement of any such payment on or after such respective dates or the right to convert, is absolute and unconditional and shall not be impaired or affected adversely without the consent of such Holder. Section 8.8. Collection Suit by Trustee. If an Event of Default described in Section 8.1(a), Section 8.1(b), Section 8.1(d) or Section 8.1(e) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company or another obligor on the Securities for the whole amount owing with respect to the Securities and the amounts provided for in Section 9.7. Section 8.9. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal amount, Redemption Price, Purchase Price, Designated Event Purchase Price or interest and Additional Interest, if any, in respect of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of any such amount) shall be entitled and empowered, by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of the principal amount, Redemption Price, Purchase Price, Designated Event Purchase Price, or interest and Additional Interest, if any, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel or any other amounts due the Trustee under Section 9.7) and of the Holders allowed in such judicial proceeding, and (b) 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 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 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 9.7. 32 Nothing contained herein 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. Section 8.10. Priorities. If the Trustee collects any money pursuant to this Article VIII, it shall pay out the money in the following order: FIRST: to the Trustee for amounts due under Section 9.7; SECOND: to Holders for amounts due and unpaid on the Securities for the principal amount, Redemption Price, Purchase Price, Designated Event Purchase Price or interest and Additional Interest, if any, as the case may be, ratably, without preference or priority of any kind, according to such amounts due and payable on the Securities; and THIRD: the balance, if any, to the Company. The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 8.10. At least 10 calendar days prior to such record date, the Trustee shall mail to each Holder and the Company a notice that states the record date, the payment date and the amount to be paid. Section 8.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant (other than the Trustee) in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 8.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 8.7 or a suit by Holders of more than 10% in aggregate principal amount of the Securities at the time outstanding. This Section 8.11 shall be in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded from this Indenture, as permitted by the TIA. ARTICLE IX TRUSTEE Section 9.1. Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise of those rights and powers as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs. (b) Except during the continuance of an Event of Default: (i) the Trustee need perform only those duties that are specifically set forth in this Indenture and no others; and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture, but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture, but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein. This Section 9.1(b) shall be in lieu of Section 315(a) of the TIA and such Section 315(a) is hereby expressly excluded from this Indenture, as permitted by the TIA. (c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: 33 (i) this clause (c) does not limit the effect of clause (b) of this Section 9.1; (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and (iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 8.5. Subparagraphs (c)(i), (ii) and (iii) shall be in lieu of Sections 315(d)(1), 315(d)(2) and 315(d)(3) of the TIA, respectively, and such Sections 315(d)(1), 315(d)(2) and 315(d)(3) are hereby expressly excluded from this Indenture, as permitted by the TIA. (d) The Trustee may refuse to perform any duty or exercise any right or power or extend or risk its own funds or otherwise incur any financial liability unless it receives indemnity reasonably satisfactory to it against any loss, liability or expense. (e) Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee (acting in any capacity hereunder) shall be under no liability for interest on any money received by it hereunder unless otherwise agreed in writing with the Company. (f) The Trustee shall comply with the reporting requirements set forth in Section 313 of the TIA. Section 9.2. Rights of Trustee. Subject to its duties and responsibilities under the TIA and this Indenture, (a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officers' Certificate; (c) 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 with due care by it hereunder; (d) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith which it reasonably believes to be authorized or within its rights or powers conferred under this Indenture; (e) the Trustee may consult with counsel selected by it and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in reliance on such advice or Opinion of Counsel; (f) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, 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 or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; 34 (g) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; (h) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation; (i) 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 this Indenture; (j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other person employed to act hereunder; and (k) the Trustee may request that the Company deliver an Officers' Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers' Certificate may be signed by any person authorized to sign an Officers' Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded. Section 9.3. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion Agent or co-registrar may do the same with like rights. However, the Trustee must comply with Section 9.10 and Section 9.11. Section 9.4. Trustee's Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company's use or application of the proceeds from the Securities, it shall not be responsible for any statement in any registration statement for the Securities under the Securities Act or in any offering document for the Securities, this Indenture or the Securities (other than its certificate of authentication), or the determination as to which beneficial owners are entitled to receive any notices hereunder. Section 9.5. Notice of Defaults. If a Default occurs and if it is known to the Trustee, the Trustee shall give to each Holder notice of the Default within 90 calendar days after it occurs or, if later, within 15 calendar days after it is known to the Trustee, unless such Default shall have been cured or waived before the giving of such notice. Notwithstanding the preceding sentence, except in the case of a Default described in Section 8.1(a), Section 8.1(b), Section 8.1(d) or Section 8.1(e), the Trustee may withhold the notice if and so long as the Responsible Officer in good faith determines that withholding the notice is in the interest of the Holders. The preceding sentence shall be in lieu of the proviso to Section 315(b) of the TIA and such proviso is hereby expressly excluded from this Indenture, as permitted by the TIA. 35 Section 9.6. Reports by Trustee to Holders. Within 60 days after each May 15 beginning with the May 15 following the date of this Indenture, the Trustee shall mail to each Holder a brief report dated as of such May 15 that complies with TIA Section 313(a), if required by such Section 313(a). The Trustee also shall comply with TIA Section 313(b). A copy of each report at the time of its mailing to Holders shall be filed with the SEC and each securities exchange, if any, on which the Securities are listed. The Company agrees to notify the Trustee promptly whenever the Securities become listed on any securities exchange and of any delisting thereof. Section 9.7. Compensation and Indemnity. The Company agrees to: (a) pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited (to the extent permitted by law) by any provision of law in regard to the compensation of a trustee of an express trust); (b) reimburse the Trustee upon its request for all expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the compensation and the reasonable expenses, advances and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its own negligence or willful misconduct; and (c) fully indemnify the Trustee or any predecessor Trustee and their agents for, and to hold them harmless against, any and all loss, damage, claim, liability, cost or expense (including attorney's fees and expenses, and taxes (other than taxes based upon, measured by or determined by the income of the Trustee)) incurred without the Trustee's negligent action, negligent failure to act or willful misconduct, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim (whether asserted by the Company or any Holder or any other person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, or in connection with enforcing the provisions of this Section 9.7. With regard to its indemnification rights under Section 9.7(c) where the Company has assumed the defense in any action or proceeding, the Trustee shall have the right to employ separate counsel in any such action or proceeding and participate in the investigation and defense thereof, and the Company shall pay the reasonable fees and expenses of such separate counsel; provided, however, that the Trustee may only employ separate counsel at the expense of the Company if in the judgment of the Trustee (i) a conflict of interest exists by reason of common representation or (ii) there are legal defenses available to the Trustee that are different from or are in addition to those available to the Company or if all parties commonly represented do not agree as to the action (or inaction) of counsel. To secure the Company's payment obligations in this Section 9.7, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay the principal amount, Redemption Price, Purchase Price, Designated Event Purchase Price or interest and Additional Interest, if any, as the case may be, on particular Securities. The Company's payment obligations pursuant to this Section 9.7 shall survive the discharge of this Indenture and the resignation or removal of the Trustee. When the Trustee incurs expenses after the occurrence of a Default specified in Section 8.1(j) or Section 8.1(k), the expenses including the reasonable charges and expenses of its counsel, are intended to constitute expenses of administration under any Bankruptcy Law. Section 9.8. Replacement of Trustee. The Trustee may resign by so notifying the Company; provided, however, that no such resignation shall be effective until a successor Trustee has accepted its appointment pursuant to this Section 9.8. The 36 Holders of a majority in aggregate principal amount of the Securities at the time outstanding may remove the Trustee by so notifying the Trustee and the Company. The Company shall remove the Trustee if: (a) the Trustee fails to comply with Section 9.10; (b) the Trustee is adjudged bankrupt or insolvent; (c) a receiver or public officer takes charge of the Trustee or its property; or (d) the Trustee otherwise becomes incapable of acting. If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint, by resolution of its Board of Directors, a successor Trustee. A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company satisfactory in form and substance to the retiring Trustee and the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, upon payment of all the retiring Trustee's fees and expenses then due and payable and subject to the lien provided for in Section 9.7. If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in aggregate principal amount of the Securities at the time outstanding may petition at the expense of the Company any court of competent jurisdiction at the expense of the Company for the appointment of a successor Trustee. If the Trustee fails to comply with Section 9.10, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. Section 9.9. Successor Trustee by Merger. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee. Section 9.10. Eligibility; Disqualification. The Trustee and any successor Trustee shall at all times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The Trustee (or its parent holding company) shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition. Nothing contained herein shall prevent the Trustee from filing with the Commission the application referred to in the penultimate paragraph of TIA Section 310(b). If at any time the Trustee shall cease to 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. Section 9.11. Preferential Collection of Claims Against Company. The Trustee shall comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated therein. ARTICLE X DISCHARGE OF INDENTURE Section 10.1. Discharge of Liability on Securities. When (i) the Company delivers to the Trustee all outstanding Securities (other than Securities replaced or repaid pursuant to Section 2.7) for cancellation or (ii) all outstanding Securities have become due and payable (whether at the Stated Maturity or upon acceleration, or on any Redemption Date, Purchase Date or Designated Event Purchase Date, or upon conversion) and the Company deposits with the Paying 37 Agent or Conversion Agent cash or Applicable Stock sufficient to pay all amounts due and owing on all outstanding Securities (other than Securities replaced pursuant to Section 2.7), and if in either case the Company pays all other sums payable hereunder by the Company, then this Indenture shall, subject to Section 9.7, cease to be of further effect. The Trustee shall join in the execution of a document prepared by the Company acknowledging satisfaction and discharge of this Indenture on demand of the Company accompanied by an Officers' Certificate and Opinion of Counsel and at the cost and expense of the Company. Section 10.2. Repayment to the Company. The Trustee and the Paying Agent shall return to the Company upon written request any cash or securities held by them for the payment of any amount with respect to the Securities that remains unclaimed for two years, subject to applicable unclaimed property law. After return to the Company, Holders entitled to the cash or securities must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person and the Trustee and the Paying Agent shall have no further liability to the Holders with respect to such cash or securities for that period commencing after the return thereof. ARTICLE XI AMENDMENTS Section 11.1. Without Consent of Holders. The Company and the Trustee may amend this Indenture or the Securities without the consent of any Holder to: (a) add to the covenants of the Company for the benefit of the Holders of Securities; (b) surrender any right or power herein conferred upon the Company; (c) provide for conversion rights of Holders of Securities if any reclassification or change of the Common Stock or any consolidation, merger or sale of all or substantially all of the Company's assets occurs; (d) provide for the assumption of the Company's obligations to the Holders of Securities in the case of a merger, consolidation, conveyance, transfer, sale, lease or other disposition pursuant to Article VII; (e) increase the Conversion Rate; provided, however, that such increase in the Conversion Rate shall not adversely affect the interests of the Holders of Securities (after taking into account tax and other consequences of such increase); (f) comply with the requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA; (g) make any changes or modifications necessary in connection with the registration of the Securities under the Securities Act as contemplated in the Registration Rights Agreement; provided, however, that such action pursuant to this clause (g) does not, in the good faith opinion of the Board of Directors (as evidenced by a Board Resolution), adversely affect the interests of the Holders of Securities in any material respect; (h) cure any ambiguity, correct or supplement any provision herein which may be inconsistent with any other provision herein or which is otherwise defective, or to make any other provisions with respect to matters or questions arising under this Indenture which the Company may deem necessary or desirable and which shall not be inconsistent with the provisions of this Indenture; provided, 38 however, that such action pursuant to this clause (h) does not, in the good faith opinion of the Board of Directors (as evidenced by a Board Resolution), adversely affect the interests of the Holders of Securities in any material respect; (i) to evidence the succession of another Person to the Company or any other obligor upon the Securities, and the assumption by any such successor of the covenants of the Company or such obligor herein and in the Securities, in each case in compliance with the provisions of this Indenture; (j) to evidence and provide the acceptance of the appointment of a successor trustee hereunder; or (k) add or modify any other provisions herein with respect to matters or questions arising hereunder which the Company and the Trustee may deem necessary or desirable and which shall not adversely affect the interests of the Holders of Securities. Section 11.2. With Consent of Holders. Except as provided below in this Section 11.2, this Indenture or the Securities may be amended, modified or supplemented, and noncompliance in any particular instance with any provision of this Indenture or the Securities may be waived, in each case with the written consent or affirmative vote of the Holders of at least a majority of the principal amount of the Securities at the time outstanding. Without the written consent or the affirmative vote of each Holder of Securities affected thereby (in addition to the written consent or the affirmative vote of the holders of at least a majority of the principal amount of the Securities at the time outstanding), an amendment or waiver under this Section 11.2 may not: (a) change the maturity of the principal amount of, or the payment date of any installment of interest or Additional Interest, if any, on, any Security; (b) reduce the principal amount of, or interest or Additional Interest, if any, on, or the Redemption Price, Purchase Price or Designated Event Purchase Price of, any Security; (c) change the currency of payment of principal amount of, or interest or Additional Interest, if any, on, or the Redemption Price, Purchase Price or Designated Event Purchase Price of, any Security from U.S. Dollars; (d) impair or adversely affect the rate of accrual of interest or Additional Interest, if any, on any Security, or the manner of calculation thereof; (e) impair the right of any Holder to institute suit for the enforcement of any payment or with respect to, or conversion of, any Security; (f) impair or adversely affect the conversion rights of the Holder of the Securities as provided in Article XII; (g) impair or adversely affect the purchase rights of the Holders of the Securities as provided in Article IV or Article V; (h) modify the optional redemption provisions of Article III in a manner adverse to the Holders of the Securities; (i) reduce the percentage of the principal amount of the outstanding Securities the written consent or affirmative vote of whose Holders is required for any such supplemental indenture; 39 (j) reduce the percentage of the principal amount of the outstanding Securities the written consent or affirmative vote of whose Holders is required for any waiver of any past Default provided for in this Indenture; or (k) waive any matter set forth in Section 8.4(a), Section 8.4(b), or Section 8.4(c). It shall not be necessary for the consent of the Holders under this Section 11.2 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent approves the substance thereof. After an amendment under this Section 11.2 becomes effective, the Company shall mail to each Holder a notice briefly describing the amendment. Nothing contained in this Section 11.2 shall impair the ability of the Company and the Trustee to amend this Indenture or the Securities without the consent of any Holder to provide for the assumption of the Company's obligations to the Holders of Securities in the case of a merger, consolidation, conveyance, transfer, sale, lease or other disposition pursuant to Article VII. Section 11.3. Compliance with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall comply with the TIA. Section 11.4. Revocation and Effect of Consents, Waivers and Actions. Until an amendment, waiver or other action by Holders becomes effective, a consent thereto by a Holder of a Security hereunder is a continuing consent by the Holder and every subsequent Holder of that Security or portion of the Security that evidences the same obligation as the consenting Holder's Security, even if notation of the consent, waiver or action is not made on the Security. However, any such Holder or subsequent Holder may revoke the consent, waiver or action as to such Holder's Security or portion of the Security if the Trustee receives the notice of revocation before the date the amendment, waiver or action becomes effective. After an amendment, waiver or action becomes effective, it shall bind every Holder. Section 11.5. Notation on or Exchange of Securities. Securities authenticated and delivered after the execution of any supplemental indenture pursuant to this Article XI may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for outstanding Securities. Section 11.6. Trustee to Sign Supplemental Indentures. The Trustee shall sign any supplemental indenture authorized pursuant to this Article XI if the amendment contained therein does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign such supplemental indenture. In signing such supplemental indenture the Trustee shall receive, and (subject to the provisions of Section 9.1) shall be fully protected in relying upon, an Officers' Certificate and an Opinion of Counsel stating that such amendment is authorized or permitted by this Indenture. Section 11.7. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. 40 ARTICLE XII CONVERSION Section 12.1. Conversion Right. (a) Subject to and upon compliance with the provisions of this Article XII, a Holder of a Security shall have the right, at such Holder's option, to convert all or any portion (if the portion to be converted is $1,000 or an integral multiple of $1,000) of such Security into Common Stock: (i) during any Conversion Period, and only during such Conversion Period commencing after the date hereof, if, on each of at least 20 Trading Days in the period of 30 consecutive Trading Days ending on the first Trading Day of the Conversion Period, the Closing Sale Price of the Common Stock exceeds 120% of the Conversion Price in effect on such 30th Trading Day of such period; (ii) if such Security has been called for redemption pursuant to Article III; or (iii) as provided in clause (b) of this Section 12.1. The Conversion Agent shall, on behalf of the Company, determine on a daily basis whether the Securities shall be convertible as a result of the occurrence of an event specified in clause (i) above and, if the Securities shall be so convertible, the Conversion Agent shall promptly deliver to the Company and the Trustee written notice thereof. Whenever the Securities shall become convertible pursuant to this Section 12.1, the Company or, at the Company's request, the Trustee in the name and at the expense of the Company, shall notify the Holders of the event triggering such convertibility in the manner provided in Section 13.2, and the Company shall also publish such information on the Company's website, or through such other public medium that reasonably could be expected to inform Holders of such information. Any notice so given shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. Securities called for redemption may be converted at any time on and after the date that the Company gives notice to the Holders of such right until 5:00 p.m., New York city time, on the second Business Day preceding the corresponding Redemption Date. With respect to any conversion of a Security during a Registration Default Period following satisfaction of any of the conditions to conversion described in clauses (i) through (iii) above (and during the prescribed time periods in respect thereof), a Holder shall be entitled to, subject to Section 12.13, 103% of the number of shares of Common Stock that the Holder would have otherwise been entitled to upon conversion. (b) (i) In the event that: (A) the Company distributes to all holders of its Common Stock rights or warrants entitling them (for a period expiring within 60 days of the Record Date for such distribution) to subscribe for or purchase Common Stock at a price per share of Common Stock less than the Closing Sale Price of the Common Stock on the Business Day immediately preceding the announcement of such distribution; (B) the Company distributes to all holders of its Common Stock cash or other assets, debt securities or rights or warrants to purchase its securities, including the declaration of any cash dividends, payable quarterly or otherwise, where the Fair Market Value (as determined by the Board of Directors) of such distribution per share of Common Stock exceeds 10% of the Closing Sale Price of the Common Stock on the Business Day immediately preceding the date of declaration of such distribution; or (C) a Designated Event occurs, then, in each case, the Securities may be surrendered for conversion at any time on and after the date that the Company gives notice to the Holders of such right, which shall be, in the case of (A) or (B), not less than 15 Business Days prior to the Ex-Dividend Time for such distribution, or, in the case of (C), within 15 Business 41 Days after the occurrence of the Designated Event, until 5:00 p.m., New York City time, on the earlier of the Business Day immediately preceding the Ex-Dividend Time and the date the Company announces that such distribution shall not take place in the case of (A) or (B), or within 20 Business Days of the Company's delivery of the notice of the Designated Event in the case of (C); provided, however, that in the case of (A) or (B), a Holder of Securities may not surrender Securities for conversion if the Holder shall otherwise participate in such distribution without conversion. (ii) In addition, in the event that the Company consolidates with or merges into another corporation, or is a party to a binding share exchange pursuant to which the Common Stock would be converted into cash, securities or other property as set forth in Section 12.4, then the Securities may be surrendered for conversion at any time from and after the date which is 15 calendar days prior to the date announced by the Company as the anticipated effective time of such transaction until 15 calendar days after the actual date of such transaction. Section 12.2. Conversion Procedures; Conversion Rate; Fractional Shares. (a) Subject to Section 12.13, each Security shall be convertible at the office of the Conversion Agent into fully paid and nonassessable shares of Common Stock (calculated to the nearest 1/10,000th of a share). The Conversion Agent shall notify the Company when it receives a Conversion Notice. Pursuant to Section 12.13, the Company shall determine the number of shares of Common Stock and/or the amount of cash, if any, that the Holder that submitted the Conversion Notice is entitled to receive upon surrender of the Securities covered by that Conversion Notice. If the Company elects to settle in Common Stock only, a certificate for the number of full shares of Common Stock into which the Securities are converted (and cash in lieu of fractional shares) shall be delivered to such Holder, assuming all of the other requirements have been satisfied by such Holder, as soon as practicable after the Company issues its notification of its chosen method of settlement, in accordance with Section 12.13. If the Company elects to settle in cash or a combination of cash and Common Stock, the cash and, if applicable, a certificate for the number of full shares of Common Stock into which the Securities are converted (and cash in lieu of fractional shares) shall be delivered to such Holder, assuming all of the other requirements have been satisfied by such Holder, in accordance with Section 12.13. Notwithstanding the foregoing, the Company shall not be required to deliver certificates for Common Stock while the stock transfer books for such stock or the security register are duly closed for any purpose, but certificates for Common Stock shall be issued and delivered as soon as practicable after the opening of such books or security register. No cash payment of accrued and unpaid interest or Additional Interest shall be paid by the Company on a converted Security, except as described in Section 12.9. Accrued and unpaid interest and Additional Interest, if any, shall be deemed to be paid in full with the shares of Common Stock issued or cash paid upon conversion, rather than deemed cancelled, extinguished or forfeited. If the Common Stock, cash or combination of Common Stock and cash received upon conversion of a Security pursuant to this Article XII does not include cash sufficient to comply with the United States federal withholding tax obligations imposed by the Code with respect to accrued and unpaid interest on the Securities payable to the beneficial owner of such Security, the Company may, to the extent required by applicable law, recoup or set-off such liability against either the Common Stock to be issued upon conversion to such beneficial owner or any actual cash dividends or distributions subsequently made with respect to such Common Stock to such beneficial owner. In the event of a Designated Event, if a Holder has submitted any or all of its Securities for repurchase, a Holder's conversion rights on the Securities so subject to repurchase shall expire at 5:00 p.m., New York City time, on the Business Day immediately preceding the Designated Event Purchase Date. Notwithstanding the foregoing, a Security in respect of which a Holder has delivered a Designated Event Purchase Notice exercising such Holder's right to require the Company to repurchase such Security may be converted only if such Designated Event Purchase Notice is withdrawn in accordance with Section 4.2(b) prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Designated Event Purchase Date. (b) Before any Holder shall be entitled to convert the same into Common Stock, such Holder shall, in the case of Global Securities, comply with the Applicable Procedures of the Depositary in effect at that time, and in the case of Certificated Securities, surrender such Securities, duly endorsed to the Company or in blank, at the office of the Conversion Agent, and shall give written notice to the Company at said office or place in the form of the 42 Conversion Notice attached to the Security (the "CONVERSION NOTICE") that such Holder elects to convert the same and shall state in writing therein the principal amount of Securities to be converted (in whole or in part so long as the principal amount to be converted is in multiples of $1,000 principal amount) and the name or names (with addresses) in which such Holder wishes the certificate or certificates for Common Stock to be issued. Before any such conversion, a Holder also shall pay all funds required, if any, relating to interest or Additional Interest, if any, on the Securities, as provided in Section 12.9 and all taxes or duties, if any, as provided in Section 12.8. 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 that shall be deliverable 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. If Common Stock to be issued upon conversion of a Restricted Security are to be issued in the name of a Person other than the Holder of such Restricted Security, such Holder shall deliver to the Conversion Agent a certification in substantially the form set forth in a Transfer Certificate dated the date of surrender of such Restricted Security and signed by such Holder, as to compliance with the restrictions on transfer applicable to such Restricted Security. The Company shall not be required to issue Common Stock upon conversion of any such Restricted Security to a Person other than the Holder if such Restricted Security is not so accompanied by a properly completed certification, and the Registrar shall not be required to register Common Stock upon conversion of any such Restricted Security in the name of a Person other than the Holder if such Restricted Security is not so accompanied by a properly completed certification. (c) A Security shall be deemed to have been converted immediately prior to 5:00 p.m., New York City time, on the date on which all of the conversion requirements set forth in Section 12.2(b) have been satisfied, and the person or persons entitled to receive the Common Stock issuable upon such conversion shall be treated for all purposes as the record Holder or Holders of such Common Stock as of 5:00 p.m., New York City time, on such date. (d) In case any Certificated Security shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Security so surrendered, without charge to such Holder (subject to the provisions of Section 12.8), a new Security or Securities in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Certificated Securities. Section 12.3. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from time to time as follows: (a) In case the Company shall, at any time or from time to time while any of the Securities are outstanding, pay a dividend or make a distribution in Common Stock to all or substantially all holders of its outstanding Common Stock, then the Conversion Rate in effect immediately prior to the close of business on the Record Date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock which it would have received had such Security been converted immediately prior to the happening of such event as well as such additional shares it would have received as a result of such event. Such adjustment shall become effective immediately prior to the opening of business on the day following the Record Date fixed for such determination. If any dividend or distribution of the type described in this Section 12.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared. (b) In case the Company shall, at any time or from time to time while any of the Securities are outstanding, subdivide its outstanding shares of Common Stock into a greater number of Common Stock or combine its outstanding shares of Common Stock into a smaller number of Common Stock, then the Conversion Rate in effect immediately prior to the close of business on the day upon which such subdivision or combination becomes effective shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock which it would have received had such Security 43 been converted immediately prior to the happening of such event as well as such additional shares as it would have received as a result of such event. Such adjustment shall become effective immediately prior to the opening of business on the day following the day upon which such subdivision or combination becomes effective. (c) In case the Company shall, at any time or from time to time while any of the Securities are outstanding, issue rights or warrants for a period expiring within 60 days (other than any rights or warrants referred to in Section 12.3(d)) to all or substantially all holders of its outstanding Common Stock entitling them to subscribe for or purchase Common Stock (or securities convertible into or exchangeable or exercisable for Common Stock), at a price per share of Common Stock (or having a conversion, exchange or exercise price per share of Common Stock) less than the Closing Sale Price of the Common Stock on the Business Day immediately preceding the date of announcement of such issuance (treating the conversion, exchange or exercise price per share of Common Stock of the securities convertible, exchangeable or exercisable into Common Stock as equal to (x) the sum of (i) the price for a unit of the security convertible into or exchangeable or exercisable for Common Stock and (ii) any additional consideration initially payable upon the conversion of or exchange or exercise for such security into Common Stock divided by (y) the number of shares of Common Stock initially underlying such convertible, exchangeable or exercisable security), then the Conversion Rate shall be adjusted by multiplying the Conversion Rate in effect at the opening of business on the date after such date of announcement by a fraction: (i) the numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the date of announcement, plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible, exchangeable or exercisable securities so offered are convertible, exchangeable or exercisable); and (ii) the denominator of which shall be the number of shares of Common Stock outstanding on the close of business on the date of announcement, plus the number of shares of Common Stock (or convertible, exchangeable or exercisable securities) which the aggregate offering price of the total number of shares of Common Stock (or convertible, exchangeable or exercisable securities) so offered for subscription or purchase (or the aggregate conversion, exchange or exercise price of the convertible, exchangeable or exercisable securities so offered) would purchase at such Closing Sale Price of the Common Stock. Such adjustment shall become effective immediately prior to the opening of business on the day following the Record Date for such determination. To the extent that shares of Common Stock (or securities convertible, exchangeable or exercisable into shares of Common Stock) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible, exchangeable or exercisable into shares of Common Stock) actually delivered. In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants 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 Closing Sale Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received for such rights or warrants, the value of such consideration if other than cash, to be determined by the Board of Directors. (d) (A) In case the Company shall, at any time or from time to time while any of the Securities are outstanding, by dividend or otherwise, distribute to all or substantially all holders of its outstanding shares of Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation and the shares of Common Stock are not changed or exchanged), shares of its capital stock, evidences of its Indebtedness or other assets, including securities, but excluding (i) dividends or distributions of Common Stock referred to in Section 12.3(a), (ii) any rights or warrants referred to in Section 44 12.3(c), (iii) dividends and distributions paid exclusively in cash referred to in Section 12.3(e) and (iv) dividends and distributions of stock, securities or other property or assets (including cash) in connection with the reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 12.4 applies (such capital stock, evidence of its indebtedness, other assets or securities being distributed hereinafter in this Section 12.3(d) called the "DISTRIBUTED ASSETS"), then, in each such case, subject to paragraphs (D) and (E) of this Section 12.3(d), the Conversion Rate shall be adjusted by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction: (i) the numerator of which shall be the Current Market Price; and (ii) the denominator of which shall be such Current Market Price of the Common Stock, less the Fair Market Value on such date of the portion of the distributed assets so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Record Date) on such date. Such adjustment shall become effective immediately prior to the opening of business on the day following the Record Date for such distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared. (B) If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 12.3(d) by reference to the actual or when issued trading market for any distributed assets comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the "REFERENCE PERIOD") used in computing the Current Market Price pursuant to Section 12.3(g) to the extent possible, unless the Board of Directors determines in good faith that determining the Fair Market Value during the Reference Period would not be in the best interest of the Holders. (C) In the event any such distribution consists of shares of capital stock of, or similar equity interests in, one or more of the Company's Subsidiaries (a "SPIN-OFF"), the Fair Market Value of the securities to be distributed shall equal the average of the Closing Sale Prices of such securities on the principal securities market on which such securities are traded for the five consecutive Trading Days commencing on and including the sixth Trading Day of those securities after the effectiveness of the Spin-Off, and the Current Market Price shall be measured for the same period. In the event, however, that an underwritten initial public offering of the securities in the Spin-Off occurs simultaneously with the Spin-Off, Fair Market Value of the securities distributed in the Spin-Off shall mean the initial public offering price of such securities and the Current Market Price shall mean the Closing Sale Price for the Common Stock on the same Trading Day. (D) Rights or warrants distributed by the Company to all holders of its outstanding shares of Common Stock entitling them to subscribe for or purchase shares of Equity Interest (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("TRIGGER EVENT"), (x) are deemed to be transferred with such Common Stock, (y) are not exercisable and (z) are also issued in respect of future issuances of Common Stock shall be deemed not to have been distributed for purposes of this Section 12.3(d) (and no adjustment to the Conversion Rate under this Section 12.3(d) shall be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different distributed assets, evidences of indebtedness or other assets, or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and Record Date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Rate under this Section 12.3(d): 45 (iii) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or purchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or Purchase Price received by a holder of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or purchase; and (iv) in the case of such rights or warrants which shall have expired or been terminated without exercise, the Conversion Rate shall be readjusted as if such rights and warrants had never been issued. (E) For purposes of this Section 12.3(d) and Section 12.3(a), Section 12.3(b) and Section 12.3(c), any dividend or distribution to which this Section 12.3(d) is applicable that also includes (x) Common Stock, (y) a subdivision or combination of Common Stock to which Section 12.3(b) applies or (z) rights or warrants to subscribe for or purchase Common Stock to which Section 12.3(c) applies (or any combination thereof), shall be deemed instead to be: (v) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants, other than such Common Stock, such subdivision or combination or such rights or warrants to which Section 12.3(a), Section 12.3(b) and Section 12.3(c) apply, respectively (and any Conversion Rate adjustment required by this Section 12.3(d) with respect to such dividend or distribution shall then be made), immediately followed by (vi) a dividend or distribution of such Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Rate adjustment required by Section 12.3(a), Section 12.3(b) and Section 12.3(c) with respect to such dividend or distribution shall then be made), except: (1) the Record Date of such dividend or distribution shall be substituted as (i) "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution," "Record Date fixed for such determinations" and "Record Date" within the meaning of Section 12.3(a), (ii) "the day upon which such subdivision or combination becomes effective" within the meaning of Section 12.3(b), and (iii) as "the Record Date fixed for the determination of the stockholders entitled to receive such rights or warrants" and such "Record Date" within the meaning of Section 12.3(c); and (2) any reduction or increase in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution. (e) In case the Company shall, at any time or from time to time after the initial Issue Date while any of the Securities are outstanding, by dividend or otherwise, distribute to all or substantially all holders of its outstanding shares of Common Stock, cash (including any quarterly cash dividends, but excluding any cash that is distributed upon a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 12.4 applies or as part of a distribution referred to in Section 12.3(d)), then, and in each case, immediately after the close of business on such date, the Conversion Rate shall be adjusted by multiplying the Conversion Rate in effect immediately prior to the close of business of such Record Date by a fraction: (A) the numerator of which shall be equal to the Current Market Price on such date; and (B) the denominator of which shall be equal to the Current Market Price on the Record Date, less an amount equal to the quotient of (x) the aggregate amount of such cash distribution and (y) the number of shares of Common Stock outstanding on the Record Date. 46 Such adjustment shall become effective immediately prior to the opening of business on the day following the Record Date for such distribution. In the event that such distribution is not so made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such distribution had not been declared. (f) In case a tender offer or exchange offer (other than as part of a stock option exchange offer) made by the Company or any of its Subsidiaries for all or any portion of the Common Stock shall expire, then and in each such case, immediately prior to the opening of business on the day after the date of the last time (the "EXPIRATION TIME") tenders or exchanges could have been made pursuant to such tender offer or exchange offer, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date of the Expiration Time by a fraction: (A) the numerator of which shall be the sum of (x) the product of (i) the number of shares of Common Stock outstanding (excluding any tendered or exchanged shares) at the Expiration Time and (ii) the Current Market Price of the Common Stock at the Expiration Time, and (y) the Fair Market Value of the aggregate consideration payable to stockholders based on acceptance (up to any maximum specified in the terms of the tender offer or exchange offer) of all shares validly tendered and not withdrawn as of the Expiration Time; and (B) the denominator of which shall be the product of the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time and the Current Market Price of the Common Stock at the Expiration Time. Such adjustment (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender offer or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all or a portion of such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such (or such portion of the) tender offer or exchange offer had not been made. If the application of this Section 12.3(e) to any tender offer or exchange offer would result in a decrease in the Conversion Rate, no adjustment shall be made for such tender offer under this Section 12.3(e). To the extent the Company has a rights plan in effect upon the conversion of the Securities, if Holders of the Securities exercising the right of conversion attaching after the date the rights separate from the underlying Common Stock are not entitled to receive the rights that would otherwise be attributable to the Common Stock received upon conversion, the Conversion Rate shall be adjusted as though the rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and the rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment shall be made to the Conversion Rate on an equitable basis. (g) For purposes of this Article XII, the following terms shall have the meanings indicated: "CURRENT MARKET PRICE" on any date means the average of the daily Closing Sale Prices per share of Common Stock for the ten consecutive Trading Days immediately prior to such date; provided, however, that if: (i) the "ex" date (as hereinafter defined) for any event (other than the issuance or distribution requiring such computation) that requires an adjustment to the Conversion Rate pursuant to Section 12.3(a), Section 12.3(b), Section 12.3(c), Section 12.3(d), Section 12.3(e) or Section 12.3(f) occurs during such ten consecutive Trading Days, the Closing Sale Price for each Trading Day prior to the "ex" date for such other event shall be adjusted by multiplying such Closing Sale Price by the same fraction by which the Conversion Rate is so required to be adjusted as a result of such other event; (ii) the "ex" date for any event (other than the issuance or distribution requiring such computation) that requires an adjustment to the Conversion Rate pursuant to Section 12.3(a), Section 12.3(b), Section 12.3(c), Section 12.3(d), Section 12.3(e) or Section 12.3(f) occurs on or after the "ex" date for the issuance or distribution requiring such computation and prior to the day 47 in question, the Closing Sale Price for each Trading Day on and after the "ex" date for such other event shall be adjusted by multiplying such Closing Sale Price by the reciprocal of the fraction by which the Conversion Rate is so required to be adjusted as a result of such other event; and (iii) the "ex" date for the issuance or distribution requiring such computation is prior to the day in question, after taking into account any adjustment required pursuant to clause (1) or (2) of this proviso, the Closing Sale Price for each Trading Day on or after such "ex" date shall be adjusted by adding thereto the amount of any cash and the Fair Market Value (as determined by the Board of Directors in a manner consistent with any determination of such value for purposes of Section 12.3(d), Section 12.3(e) or Section 12.3(f)) of the evidences of Indebtedness, shares of capital stock or assets being distributed applicable to one share of Common Stock as of the close of business on the day before such "ex" date. For purposes of any computation under Section 12.3(e), if the "ex" date for any event (other than the tender offer requiring such computation) that requires an adjustment to the Conversion Rate pursuant to Section 12.3(a), Section 12.3(b), Section 12.3(c), Section 12.3(d), Section 12.3(e) or Section 12.3(f) occurs on or after the Expiration Time for the tender or exchange offer requiring such computation and prior to the day in question, the Closing Sale Price for each Trading Day on and after the "ex" date for such other event shall be adjusted by multiplying such Closing Sale Price by the reciprocal of the fraction by which the Conversion Rate is so required to be adjusted as a result of such other event. For purposes of this paragraph, the term "ex" date, when used: (iv) with respect to any issuance or distribution, means the first date on which the Common Stock trade regular way on the relevant exchange or in the relevant market from which the Closing Sale Price was obtained without the right to receive such issuance or distribution; (v) with respect to any subdivision or combination of Common Stock, means the first date on which the Common Stock trade regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective; and (vi) with respect to any tender offer or exchange offer, means the first date on which the Common Stock trade regular way on such exchange or in such market after the Expiration Time of such offer. Notwithstanding the foregoing, whenever successive adjustments to the Conversion Rate are called for pursuant to this Section 12.3, such adjustments shall be made to the Current Market Price as may be necessary or appropriate to effectuate the intent of this Section 12.3 and to avoid unjust or inequitable results as determined in good faith by the Board of Directors. "FAIR MARKET VALUE" means the amount which a willing buyer would pay a willing seller in an arm's length transaction (as determined by the Board of Directors, whose determination shall be made in good faith and, absent manifest error, shall be final and binding on Holders of the Securities). "RECORD DATE" means, 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 stockholders 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) The Company shall be entitled to make such additional adjustments in the Conversion Rate, in addition to those required by Section 12.3(a), Section 12.3(b), Section 12.3(c), Section 12.3(d), Section 12.3(e) or Section 12.3(f) if the Board of Directors determines that it is advisable, subject to compliance with Nasdaq Marketplace Rule 4350(i), in order that any dividend or distribution of Common Stock, any subdivision, reclassification or combination of Common Stock or any issuance of rights or warrants referred to above shall not be taxable to the holders of Common Stock for United States federal income tax purposes. (i) To the extent permitted by applicable law, the Company may, from time to time, increase the Conversion Rate by any amount for any period of time if such period is at least 20 calendar days, the increase is irrevocable 48 during the period and the Board of Directors, in good faith and absent manifest error, determines that such increase would be in the best interest of the Company, subject to compliance with Nasdaq Marketplace Rule 4350(i). Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall mail to the Trustee and each Holder at the address of such Holder as it appears in the register of the Securities maintained by the Registrar, at least 15 calendar days prior to the date the increased Conversion Rate takes effect, a notice of the increase stating the increased Conversion Rate and the period during which it shall be in effect. (j) In any case in which this Section 12.3 shall require that any adjustment be made effective as of or retroactively immediately following a Record Date, the Company may elect to defer (but only for five Trading Days following the filing of the notice referred to in Section 12.5) issuing to the Holder of any Securities converted after such Record Date the Common Stock issuable upon such conversion over and above the Common Stock issuable upon such conversion on the basis of the Conversion Rate prior to adjustment; provided, however, that the Company shall deliver to such Holder a due bill or other appropriate instrument evidencing such Holder's right to receive such additional Common Stock upon the occurrence of the event requiring such adjustment. (k) All calculations under this Section 12.3 shall be made to the nearest cent or one-hundredth of a share, with one-half cent and 0.005 of a share, respectively, being rounded upward. Notwithstanding any other provision of this Section 12.3, the Company shall not be required to make any adjustment of the Conversion Rate unless such adjustment would require an increase or decrease of at least 1% in the Conversion Rate as last adjusted. Any lesser adjustment shall be carried forward and shall be made at the time of and together with the next subsequent adjustment which, together with any adjustment or adjustments so carried forward, shall amount to an increase or decrease of at least 1% in the Conversion Rate as last adjusted. Any adjustments under this Section 12.3 shall be made successively whenever an event requiring such an adjustment occurs. (l) In the event that at any time, as a result of an adjustment made pursuant to this Section 12.3, the Holder of any Securities thereafter surrendered for conversion shall become entitled to receive any shares of stock of the Company other than Common Stock into which the Securities originally were convertible, the Conversion Rate of such other shares so receivable upon conversion of any such Security shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to Common Stock contained in subparagraphs (a) through (j) of this Section 12.3, and the provision of Section 12.1, Section 12.2 and Section 12.4 through Section 12.9 with respect to the Common Stock shall apply on like or similar terms to any such other shares and the determination of the Board of Directors as to any such adjustment shall be conclusive. (m) No adjustment shall be made pursuant to this Section 12.3 if (i) the effect thereof would be to reduce the Conversion Price below the par value (if any) of the Common Stock or (ii) any dividend, distribution or issuance that would otherwise give rise to an adjustment pursuant to this Section 12.3 is made or paid to the Holders of the Securities. Section 12.4. Consolidation or Merger of the Company. If any of the following events occurs, namely: (a) 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 subdivision or combination); (b) any merger, consolidation, statutory share exchange or combination of the Company with another corporation as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock; or 49 (c) any sale or conveyance of the properties and assets of the Company as, or substantially as, an entirety to any other corporation as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock; the Company or the successor or purchasing corporation, as the case may be, shall execute with the Trustee a supplemental indenture (which shall comply with the Trust Indenture Act as in force at the date of execution of such supplemental indenture, if such supplemental indenture is then required to so comply) providing that such Securities shall be convertible into the kind and amount of shares of stock and other securities or property or assets (including cash) which such Holder would have been entitled to receive upon such reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance had such Securities been converted into Common Stock immediately prior to such reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance assuming such holder of Common Stock did not exercise its rights of election, if any, as to the kind or amount of securities, cash or other property receivable upon such merger, consolidation, statutory share exchange, sale or conveyance (provided, that if the kind or amount of securities, cash or other property receivable upon such merger, consolidation, statutory share exchange, sale or conveyance is not the same for each share of Common Stock in respect of which such rights of election shall not have been exercised ("NON-ELECTING SHARE"), then for the purposes of this Section 12.4, the kind and amount of securities, cash or other property receivable upon such merger, consolidation, statutory share exchange, sale or conveyance for each Non-Electing Share shall be deemed to be the kind and amount so receivable per share by a plurality of the Non-Electing Shares). 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 XII. If, in the case of any such reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance, the stock or other securities and assets receivable thereupon by a holder of Common Stock includes shares of stock or other securities and assets of a corporation other than the successor or purchasing corporation, as the case may be, in such reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance, then such supplemental indenture shall also be executed by such other corporation and shall contain such additional provisions to protect the interests of the Holders of the Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing. The Company shall cause notice of the execution of such supplemental indenture to be mailed to each Holder, at the address of such Holder as it appears on the register of the Securities maintained by the Registrar, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture. The above provisions of this Section 12.4 shall similarly apply to successive reclassifications, mergers, consolidations, statutory share exchanges, combinations, sales and conveyances. If this Section 12.4 applies to any event or occurrence, Section 12.3 shall not apply. Section 12.5. Notice of Adjustment. Whenever an adjustment in the Conversion Rate with respect to the Securities is required: (a) the Company shall forthwith place on file with the Trustee and any Conversion Agent for such securities a certificate of the Chief Financial Officer of the Company, stating the adjusted Conversion Rate determined as provided herein and setting forth in reasonable detail such facts as shall be necessary to show the reason for and the manner of computing such adjustment; and (b) a notice stating that the Conversion Rate has been adjusted and setting forth the adjusted Conversion Rate shall forthwith be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company, to each Holder in the manner provided in Section 13.2. Any notice so given shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. Section 12.6. Notice in Certain Events. In case of: (a) a consolidation or merger to which the Company is a party and for which approval of any stockholders of the Company is required, or of the sale or conveyance to another Person or entity or group 50 of Persons or entities acting in concert as a partnership, limited partnership, syndicate or other group (within the meaning of Rule 13d-3 under the Exchange Act) of all or substantially all of the property and assets of the Company; or (b) the voluntary or involuntary dissolution, liquidation or winding up of the Company; or (c) any action triggering an adjustment of the Conversion Rate referred to in clauses (x) or (y) below; then, in each case, the Company shall cause to be filed with the Trustee and the Conversion Agent, and shall cause to be given, to the Holders of the Securities in the manner provided in Section 13.2, at least 15 days prior to the applicable date hereinafter specified, a notice stating: (x) the date on which a record is to be taken for the purpose of any distribution or grant of rights or warrants triggering an adjustment to the Conversion Rate pursuant to this Article XII, or, if a record is not to be taken, the date as of which the holders of record of Common Stock entitled to such distribution, rights or warrants are to be determined; or (y) the date on which any reclassification, consolidation, merger, sale, conveyance, dissolution, liquidation or winding up triggering an adjustment to the Conversion Rate pursuant to this Article XII is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, sale, conveyance, dissolution, liquidation or winding up. Failure to give such notice or any defect therein shall not affect the legality or validity of the proceedings described in Section 12.6(a), Section 12.6(b) or Section 12.6(c). Section 12.7. Company To Reserve Stock: Registration; Listing. (a) The Company shall, prior to issuance of any Securities hereunder, and from time to time as may be necessary, reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Stock, for the purpose of effecting the conversion of the Securities, such number of its duly authorized Common Stock as shall from time to time be sufficient to effect the conversion of all Securities then outstanding into such Common Stock at any time (assuming that, at the time of the computation of such number of Common Stock, all such Securities would be held by a single Holder). The Company covenants that all Common Stock which may be issued upon conversion of Securities shall upon issue be fully paid and nonassessable and free from all liens and charges and, except as provided in Section 12.8, taxes with respect to the issue thereof. (b) If any Common Stock which would be issuable upon conversion of Securities hereunder require registration with or approval of any governmental authority before such shares or securities may be issued upon such conversion, the Company shall use its reasonable best efforts to cause such shares or securities to be duly registered or approved, as the case may be. The Company further covenants that so long as the Common Stock shall be quoted on the Nasdaq National Market system, the Company shall use its reasonable best efforts, if permitted by the rules of the Nasdaq National Market system, to keep so quoted all Common Stock issuable upon conversion of the Securities, and the Company shall use its reasonable best efforts to list or obtain approval for the quotation of the Common Stock to be delivered upon conversion of the Securities prior to such delivery upon any other national securities exchange or quotation system upon which the outstanding Common Stock is listed or quoted at the time of such delivery. Section 12.8. Taxes on Conversion. The issue of stock certificates on conversion of Securities shall be made without charge to the converting Holder for any documentary, stamp or similar issue or transfer taxes in respect of the issue thereof, and the Company shall pay any and all documentary, stamp or similar issue or transfer taxes that may be payable in respect of the issue or delivery of Common Stock on conversion of Securities pursuant hereto. The Company shall not, however, be required to pay any such tax which may be payable in respect of any transfer involved in the issue or delivery of Common Stock or the portion, if any, of the Securities which 51 are not so converted in a name other than that in which the Securities so converted were registered, and no such issue or delivery shall be made unless and until the Person requesting such issue has paid to the Company the amount of such tax or has established to the satisfaction of the Company that such tax has been paid. Section 12.9. Conversion After Regular Record Date. Except as provided in the succeeding paragraph, the Holder of Securities shall not be entitled to receive any accrued and unpaid interest or Additional Interest, if any. If any Securities are surrendered for conversion subsequent to the close of business on any Regular Record Date but prior to the opening of business on the corresponding Interest Payment Date, the Holder of such Securities at the close of business on such Regular Record Date shall receive the interest and Additional Interest, if any, payable on such Securities on such Interest Payment Date notwithstanding the conversion thereof. Securities surrendered for conversion during the period from the close of business on any Regular Record Date to the opening of business on the corresponding Interest Payment Date shall (except in the case of Securities which have been called for redemption on a Redemption Date within such period) be accompanied by payment by Holders, for the account of the Company, in New York Clearing House funds or other funds acceptable to the Company of an amount equal to the interest and Additional Interest, if any, payable on such interest payment date on the Securities being surrendered for conversion. Except as provided in Section 12.2(a) and this Section 12.9, no payment or adjustment shall be made in respect of dividends or distributions on the Common Stock issued upon conversion or accrued and unpaid interest or Additional Interest, if any, on a converted Security. Section 12.10. Company Determination Final. Any determination that the Company or the Board of Directors must make pursuant to this Article XII shall be conclusive if made in good faith and in accordance with the provisions of this Article, absent manifest error, and set forth in a Board Resolution. Section 12.11. Responsibility of Trustee for Conversion Provisions. The Trustee has no duty to determine when an adjustment under this Article XII should be made, how it should be made or what it should be. The Trustee makes no representation as to the validity or value of any securities or assets issued upon conversion of Securities. The Trustee shall not be responsible for any failure of the Company to comply with this Article XII. Each Conversion Agent other than the Company shall have the same protection under this Section 12.11 as the Trustee. The rights, privileges, protections, immunities and benefits given to the Trustee under this Indenture including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, other than the Company, the Trustee in each of its capacities hereunder, and each Paying Agent or Conversion Agent, other than the Company, acting hereunder. Section 12.12. Unconditional Right of Holders to Convert. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to convert its Security in accordance with this Article XII and to bring an action against the Company for the enforcement of any such right to convert, and such rights shall not be impaired or affected without the consent of such Holder. Section 12.13. Option to Satisfy Conversion Obligation with Cash, Common Stock or Combination Thereof. (a) If the Company receives any Holder's Conversion Notice on or prior to the day that is 31 Trading Days prior to the Stated Maturity (the "FINAL NOTICE DATE"), then the Company shall notify the Holder through the Trustee, at any time on or before the date that is three Trading Days following receipt of the Conversion Notice required pursuant to Section 12.2 (such period, the "SETTLEMENT NOTICE PERIOD") of the method the Company chooses to settle its obligation upon conversion (the "CONVERSION OBLIGATION"). If the Company elects to settle its Conversion Obligation in a combination of cash and Common Stock, the Company shall specify both the percentage of the principal amount of Securities surrendered for conversion that it will pay in cash and the percentage of the excess (the "EXCESS AMOUNT"), if any, of the Conversion Obligation relating to the Securities surrendered for conversion over the principal amount of the Securities surrendered for conversion that it will pay 52 in cash. The remainder of its Conversion Obligation will be settled in shares of Common Stock (except that cash will be paid in lieu of issuing any fractional shares). The Company shall treat all Holders converting on the same Trading Day in the same manner and the Company shall not have any obligation to settle Conversion Obligations arising on different Trading Days in the same manner. If the Company timely elects to pay cash for any portion of the Conversion Obligation, the Holder may retract the Conversion Notice at any time during the two Trading Day period beginning on the Trading Day after the Settlement Notice Period (the "CONVERSION RETRACTION PERIOD"); provided, that no such retraction can be made (and a Conversion Notice shall be irrevocable) if the Company does not elect to deliver cash in lieu of shares (other than cash in lieu of fractional shares). Settlement in Common Stock only will occur in accordance with Section 12.2(a). If the Conversion Notice has not been retracted, then settlement in cash or in a combination of cash and Common Stock will, subject to Section 12.13(c), occur on the third Trading Day following the final Trading Day of the 20 Trading Day period beginning on the third Trading Day following the final Trading Day of the Conversion Retraction Period (the "CASH SETTLEMENT AVERAGING PERIOD"), assuming all of the other requirements have been satisfied by such Holder. Settlement amounts will be computed as follows (subject to the provisions of the third paragraph of Section 12.1(a) in connection with conversions during a Registration Default Period): (i) if the Company elects to satisfy the entire Conversion Obligation in Common Stock, the Company shall deliver to such Holder a number of shares of Common Stock equal to (1) the aggregate original principal amount of Securities to be converted divided by 1,000, multiplied by (2) the Conversion Rate; (ii) if the Company elects to satisfy the Entire Conversion Obligation in cash, the Company shall deliver to such Holder cash in an amount equal to the product of: (1) a number equal to (x) the aggregate original principal amount of Securities to be converted divided by 1,000, multiplied by (y) the Conversion Rate, and (2) the arithmetic average of the Closing Prices of Common Stock during the Cash Settlement Averaging Period; and (iii) if the Company elects to satisfy a portion of the Conversion Obligation in cash (the "CASH AMOUNT") (excluding any cash paid for fractional shares) and a portion of the Conversion Obligation in Common Stock, the Company shall deliver to such Holder: (1) the Cash Amount equal to the aggregate principal amount of Securities to be converted multiplied by the percentage of such principal amount to be satisfied in cash, and if greater than zero, the product of (x) the amount of cash that would be paid pursuant to clause (ii) above minus the aggregate principal amount of the Securities surrendered for conversion, and (y) the percentage of the Excess Amount to be satisfied in cash; plus (2) the number of shares of Common Stock equal to (x) the number of shares of Common Stock that would be issued pursuant to clause (i) above minus (y) the number of shares of Common Stock equal to the quotient of the Cash Amount divided by the arithmetic average of the Closing Sale Prices of the Common Stock during the Cash Settlement Averaging Period. Notwithstanding the foregoing, a Security in respect of which a Holder has delivered a Designated Event Purchase Notice exercising such Holder's right to require the Company to repurchase such Security may be converted as described in this Section 12.13(a) only if such notice of exercise is withdrawn in accordance with Section 4.2(b) prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Designated Event Purchase Date. 53 (b) The Company shall settle all of its Conversion Obligations arising after the Final Notice Date in the same manner. On or prior to the Final Notice Date, the Company shall notify the Holders through the Trustee of the method it chooses to settle any Conversion Obligations arising after the Final Notice Date. If the Company elects to settle any Conversion Obligations arising after the Final Notice Date in a combination of cash and Common Stock, the Company shall specify both the percentage of the principal amount of Securities surrendered for conversion that it will pay in cash and the percentage of the Excess Amount that it will pay in cash. The remainder of any Conversion Obligation arising after the Final Notice Date shall be settled in shares of Common Stock (except that cash will be paid in lieu of issuing any fractional shares). All Conversion Notices received after the Final Notice Date shall be irrevocable. (c) Settlement of Conversion Obligations arising after the Final Notice Date in Common Stock shall occur in accordance with Section 12.2(a). Settlement of Conversion Obligations arising after the Final Notice Date in cash or in a combination of cash and Common Stock shall occur on the third Trading Day following the final Trading Day of the Cash Settlement Averaging Period described in the following sentence. The settlement amount of Common Stock, cash or combination of cash and Common Stock in satisfaction of Conversion Obligations arising after the Final Notice Date shall be computed in the same manner as set forth in Section 12.31(a), except that the "Cash Settlement Averaging Period" shall be the 20 Trading Day period beginning on the date that is the 23rd Trading Day prior to the Stated Maturity. ARTICLE XIII MISCELLANEOUS Section 13.1. Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies, or conflicts with the duties imposed by Section 318(c) of the TIA, such section of the TIA shall control. If any provision of this Indenture expressly modifies or excludes any provision of the TIA that may be so modified or excluded, the Indenture provision so modifying or excluding such provision of the TIA shall be deemed to apply. Section 13.2. Notices. Any request, demand, authorization, notice, waiver, consent or communication shall be in writing and delivered in person (including by commercial courier services) or mailed by first-class mail, postage prepaid, addressed as follows or transmitted by facsimile transmission (confirmed by guaranteed overnight courier) to the following facsimile numbers: if to the Company: CONCORD COMMUNICATIONS, INC. 400 Nickerson Road Marlboro, Massachusetts 01752 Attention: Chief Financial Officer Facsimile No.: (508) 481-9772 with a copy to: TESTA, HURWITZ & THIBEAULT, LLP 125 High Street Boston, Massachusetts 02110 Attention: Kevin M. Barry, Esq. Facsimile No.: (617) 248-7100 if to the Trustee: WILMINGTON TRUST COMPANY 1100 North Market Street, Rodney Square North Wilmington, DE 19890-1615 Attention: Corporate Capital Markets Facsimile No.: (302) 636-4145 The Company or the Trustee by notice given to the other in the manner provided above may designate additional or different addresses for subsequent notices or communications. 54 Any notice or communication given to a Holder shall be mailed to the Holder, by first-class mail, postage prepaid, at the Holder's address as it appears on the registration books of the Registrar and shall be sufficiently given if so mailed within the time prescribed. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not received by the addressee. If the Company mails a notice or communication to the Holders, it shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion Agent, or co-registrar. Section 13.3. Communication by Holders with Other Holders. Holders may communicate pursuant to Section 312(b) of the TIA with other Holders with respect to their rights under this Indenture or the Securities. The Company, the Trustee, the Registrar, the Paying Agent, the Conversion Agent and anyone else shall have the protection of TIA Section 312(c). Section 13.4. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this Indenture (except in connection with the original issuance of Securities), the Company shall furnish to the Trustee: (a) an Officers' Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and (b) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Section 13.5. Statements Required in Certificate or Opinion. Each Officers' Certificate or Opinion of Counsel with respect to compliance with a covenant or condition provided for in this Indenture shall include: (a) a statement that each person making such Officers' Certificate or Opinion of Counsel has read such covenant or condition; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such Officers' Certificate or Opinion of Counsel are based; (c) a statement that, in the opinion of each such person, he has made such examination or investigation as is necessary to enable such person to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement that, in the opinion of such person, such covenant or condition has been complied with. In giving such Opinion of Counsel, counsel may rely as to factual matters on an Officer's Certificate or on certificates of public officials. Section 13.6. Separability 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. Section 13.7. Rules by Trustee, Paying Agent, Conversion Agent, Registrar. The Trustee may make reasonable rules for action by or a meeting of Holders. The Registrar, the Conversion Agent and the Paying Agent may make reasonable rules for their functions. 55 Section 13.8. Legal Holidays. If any specified date (including a date for giving notice) is a Legal Holiday, the action shall be taken on the next succeeding day that is not a Legal Holiday, and, if the action to be taken on such date is a payment in respect of the Securities, no interest, if any, shall accrue for the intervening period. Section 13.9. Governing Law; Submission to Jurisdiction; Service of Process. This Indenture shall be governed by, and construed in accordance with, the laws of the State of New York. The Company submits to the non-exclusive jurisdiction of the courts of the State of New York and the courts of the United States of America, in each case located in the Borough of Manhattan, New York, New York over any suit, action or proceeding arising under or in connection with this Indenture or the transactions contemplated hereby or the Securities. The Company waives any objection that it may have to the venue of any suit, action or proceeding arising under or in connection with this Indenture or the transactions contemplated hereby or the Securities in the courts of the State of New York or the courts of the United States of America, in each case located in the Borough of Manhattan, New York, New York, or that such suit, action or proceeding brought in the courts of the State of New York or the courts of the United States of America, in each case located in the Borough of Manhattan, New York, New York, was brought in an inconvenient court and agrees not to plead or claim the same. The Company agrees that service of all writs, process and summonses in any suit, action or proceeding arising under or in connection with this Indenture or the transactions contemplated thereby or the Securities against the Company in any court of the State of New York or any United States Federal court, in each case, sitting in the Borough of Manhattan, New York, New York, may be made upon CT Corporation System at 111 Eighth Avenue, New York, New York 10011, whom the Company irrevocably appoints as its authorized agent for service of process. The Company represents and warrants that CT Corporation System has agreed to act as the Company's agent for service of process. The Company agrees that such appointment shall be irrevocable until the irrevocable appointment by the Company of a successor in New York, New York as its authorized agent for such purpose and the acceptance of such appointment by such successor. The Company further agrees to take any and all action, including the filing of any and all documents and instruments that may be necessary to continue such appointment in full force and effect as aforesaid. If CT Corporation System shall cease to act as the agent for service of process for the Company, the Company shall appoint without delay, another such agent and provide prompt written notice to the Trustee of such appointment. Section 13.10. No Recourse Against Others. No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such, or against any past, present or future stockholder, officer or director, as such, of the Company or of any successor, either directly or through the Company or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders and as part of the consideration for the issue of the Securities. Section 13.11. Successors. All agreements of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor. Section 13.12. Multiple Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture. * * * * [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 56 IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed this Indenture on behalf of the respective parties hereto as of the date first above written. CONCORD COMMUNICATIONS, INC. By: /s/ Melissa H. Cruz --------------------------- Name: Melissa H. Cruz Title: Executive Vice President of Business Services, Chief Financial Officer and Treasurer SIGNATURE PAGE TO INDENTURE WILMINGTON TRUST COMPANY As Trustee By: /s/ James J. McGinley --------------------------- Name: James J. McGinley Title: Authorized Signer SIGNATURE PAGE TO INDENTURE EXHIBIT A [FORM OF FACE OF SECURITY] [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.] [THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF 1933"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER: (1) REPRESENTS THAT IT IS (A) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933 OR (B) IT IS AN INSTITUTIONAL INVESTOR THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT OF 1933 (AN "INSTITUTIONAL ACCREDITED INVESTOR"); (2) AGREES THAT IT SHALL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN, AND IN COMPLIANCE WITH, RULE 144A UNDER THE SECURITIES ACT OF 1933, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE), (D) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933 (IF AVAILABLE) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO AMERICAN STOCK TRANSFER AND TRUST COMPANY, AS TRANSFER AGENT (OR ANY SUCCESSOR TRANSFER AGENT, AS APPLICABLE), SUCH CERTIFICATIONS AND OPINION OF COUNSEL REQUIRED BY THE COMPANY OR THE TRANSFER AGENT OR (E) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND THAT CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(C) OR 2(E) ABOVE), A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.] (1) - ------------------------- (1) This legend should be included only if the Security is a Transfer Restricted Security. A-1 [THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.](1) A-2 CONCORD COMMUNICATIONS, INC. 3.0% CONVERTIBLE SENIOR NOTES DUE 2023 No. ___ CUSIP: 206 186 AA6 CONCORD COMMUNICATIONS, INC., a Massachusetts corporation (the "Company", which term shall include any successor corporation under the Indenture referred to on the reverse hereof) promises to pay to _____________________, or registered assigns, the principal amount of _______________ Dollars ($_________) [, or such greater or lesser amount as is indicated in the records of the Trustee and the Depositary,] on December 15, 2023, and to pay interest thereon from December 8, 2003 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, on June 15 and December 15 in each year (each, an "INTEREST PAYMENT DATE"), commencing on June 15, 2004, at the rate of 3.0% per annum, until the principal hereof is paid or made available for payment at December 15, 2023 or upon acceleration, or until such date on which the Securities are converted, redeemed or purchased as provided herein, and at the rate of 3.0% per annum on any overdue principal and on any overdue installment of interest and Additional Interest, if any. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in the Indenture (as hereinafter defined), be paid to the Person in whose name this Security (or one or more predecessor Securities) is registered at the close of business on the regular record date for such interest, which shall be the June 1 or December 1 (whether or not a Business Day), as the case may be, next preceding the corresponding Interest Payment Date (a "REGULAR RECORD DATE"). Any such interest Additional Interest, if any, not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may be paid (a) to the Person in whose name this Security (or one or more predecessor Securities) is registered at the close of business on a special record date for the payment of such defaulted interest to be fixed by the Trustee (a "SPECIAL RECORD DATE"), notice whereof shall be given to Holders not less than 10 calendar days prior to such Special Record Date, or (b) at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. Reference is hereby made to the further provisions of this Security set forth on the reverse side of this Security, which further provisions shall for all purposes have the same effect as if set forth at this place. A-3 IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed. Dated: CONCORD COMMUNICATIONS, INC. By: - Name:______________________________ Title:_____________________________ A-4 TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities referred to in the within-mentioned Indenture. Dated: WILMINGTON TRUST COMPANY, as Trustee By: _ A-5 [FORM OF REVERSE OF SECURITY] 3.0% CONVERTIBLE SENIOR NOTES DUE 2023 This Security is one of a duly authorized issue of 3.0% Convertible Senior Notes due 2023 (the "Securities") of CONCORD COMMUNICATIONS, INC., a Massachusetts corporation (including any successor corporation under the Indenture hereinafter referred to, the "Company"), issued under an Indenture, dated as of December 8, 2003 (the "Indenture"), between the Company and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Trustee (the "Trustee"). The terms of the Security include those stated in the Indenture, those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended ("TIA"), and those set forth in this Security. This Security is subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Security and the terms of the Indenture, the terms of the Indenture shall control. Capitalized terms used but not defined herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. 1. Interest. Interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months. If this Security is redeemed pursuant to Section 5 of this Security or the Holder elects to require the Company to purchase this Security pursuant to Section 6 of this Security, on a date that is after the Regular Record Date and on or before the corresponding Interest Payment Date, interest and Additional Interest, if any, accrued and unpaid hereon to, but excluding, the applicable Redemption Date, Purchase Date or Designated Event Purchase Date shall be paid to the same Holder to whom the Company pays the principal of this Security. Interest and Additional Interest, if any, on Securities converted after the close of business on a Regular Record Date but prior to the opening of business on the corresponding Interest Payment Date shall be paid to the Holder of the Securities on the Regular Record Date but, upon conversion, the Holder must pay the Company the interest and Additional Interest, if any, which has accrued and shall be paid on such Interest Payment Date. No such payment need be made with respect to Securities which shall be converted after a Regular Record Date and prior to the corresponding Interest Payment Date after being called for redemption. Any reference herein to interest accrued or payable as of any date shall include any Additional Interest accrued or payable on such date as provided in the Registration Rights Agreement. 2. Method of Payment. Payment of the principal of and interest and Additional Interest, if any, on the Securities shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts or in Applicable Stock, as the case may be. The Holder must surrender the Securities to the Paying Agent to collect payment of principal. Payment of interest and Additional Interest, if any, on Certificated Securities shall be made by check mailed to the address of the Person entitled thereto as such address appears in the Register and payment of interest and Additional Interest, if any, on Certificated Securities in aggregate principal amount in excess of $5,000,000 shall be made by wire transfer in immediately available funds at the election of such Holder. Notwithstanding the foregoing, so long as the Securities are registered in the name of a Depositary or its nominee, all payments with respect to the Securities shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. 3. Paying Agent, Registrar, Conversion Agent. Initially, Wilmington Trust Company shall act as Paying Agent, Registrar and Conversion Agent. The Company may appoint and change any Paying Agent, Registrar and Conversion Agent without notice, other than notice to the Trustee; provided that the Company shall maintain at least one Paying Agent in Borough of Manhattan, New York, New York, which shall initially be an office or agency of the Trustee. The Company or any of its Subsidiaries or any of their Affiliates may act as Paying Agent, Registrar or Conversion Agent. 4. Indenture. The Securities are general unsecured obligations of the Company limited to up to $86,250,000 aggregate A-6 principal amount. The Indenture does not limit other indebtedness of the Company, secured or unsecured. 5. Redemption of the Notes by the Company. The Securities are redeemable for cash at the option of the Company, in whole or in part, at any time or from time to time on, or after December 15, 2008 upon not less than 20 calendar days', nor more than 60 calendar days', notice by mail for a redemption price equal to the principal amount of those Securities plus accrued and unpaid interest and Additional Interest, if any, on those Securities, to, but excluding, the Redemption Date. Notice of redemption pursuant to this Section of this Security shall be mailed at least 20 calendar days but not more than 60 calendar days before the Redemption Date to each Holder of Securities to be redeemed at the Holder's registered address. If cash sufficient to pay the Redemption Price of all Securities (or portions thereof) to be redeemed on the Redemption Date is deposited with the Paying Agent prior to 10:00 a.m., New York City time, on the Redemption Date, then, on such Redemption Date interest and Additional Interest, if any ceases to accrue on such Securities or portions thereof. Securities in denominations larger than $1,000 of principal amount may be redeemed in part but only in integral multiples of $1,000 of principal amount. 6. Purchase by the Company at the Option of the Holder or Upon a Designated Event. Subject to the terms and conditions of the Indenture, the Company shall become obligated to purchase, at the option of the Holder, all or any portion of the Securities held by such Holder on December 15, 2008, December 15, 2013 and December 15, 2018 in integral multiples of $1,000 at the Purchase Price in cash. To exercise such right, a Holder shall deliver to the Paying Agent a Purchase Notice containing the information set forth in the Indenture, at any time from the opening of business on the date that is 22 Business Days prior to the relevant Purchase Date until the close of business on the second Business Day prior to such Purchase Date, and shall deliver the Securities to the Paying Agent as set forth in the Indenture. Subject to the terms and conditions of the Indenture, the Company shall become obligated to purchase, at the option of the Holder, all or any portion of the Securities held by such Holder upon a Designated Event in integral multiples of $1,000 at the Designated Event Purchase Price in cash. To exercise such right, a Holder shall deliver to the Paying Agent a Designated Event Purchase Notice containing the information set forth in the Indenture at any time on or before the 20th Business Day after the date of the Company's notice of the Designated Event (subject to extension to comply with applicable law), and shall deliver the Securities to the Paying Agent as set forth in the Indenture. Holders have the right to withdraw any Purchase Notice or Designated Event Purchase Notice by delivering to the Paying Agent a written notice of withdrawal in accordance with the provisions of the Indenture. If cash sufficient to pay the Purchase Price or Designated Event Purchase Price, as the case may be, of all Securities or portions thereof to be purchased on the Purchase Date or the Designated Event Purchase Date, as the case may be, is deposited with the Paying Agent, at 10:00 a.m., New York City time, on the Purchase Date or the Designated Event Purchase Date, as the case may be, such Securities shall cease to be outstanding and interest and Additional Interest, if any, on such Securities shall cease to accrue and the Holder thereof shall have no other rights as such other than the right to receive the Purchase Price or Designated Event Purchase Price upon surrender of such Security. 7. Conversion. Subject to and in compliance with the provisions of the Indenture (including, without limitation, the conditions to conversion of this Security set forth in Section 12.1 thereof), a Holder is entitled, at such Holder's option, to convert the Holder's Security (or any portion of the principal amount thereof that is $1,000 or an integral multiple $1,000), into fully paid and nonassessable shares of Common Stock at the Conversion Rate in effect on the date of conversion. Upon conversion, the Company shall have the right to deliver, in lieu of shares of Common Stock, cash or a combination of cash and shares of Common Stock. If the Company elects to pay cash in lieu of shares, the payment amount shall be the product of (1) a number equal to (x) the aggregate original principal amount of Securities to be converted divided by 1,000, multiplied by (y) the Conversion Rate, and (2) the arithmetic average of the Closing Prices of Common Stock during the Cash Settlement Averaging Period. A-7 Until the Securities are surrendered for conversion, the Company shall not be required to notify Holders of its method for settling the excess amount of its conversion obligation of the $1,000 principal amount of the Securities. The Company shall notify Holders of any event triggering the right to convert the Securities as specified above in accordance with the Indenture. A Security in respect of which a Holder has delivered a Purchase Notice or Designated Event Purchase Notice, as the case may be, exercising the right of such Holder to require the Company to purchase such Security may be converted only if such Purchase Notice or Designated Event Purchase Notice is withdrawn in accordance with the terms of the Indenture. The initial Conversion Rate is 37.2148 shares of Common Stock per $1,000 principal amount of this Security, subject to adjustment in certain events described in the Indenture. This reflects an initial Conversion Price of approximately $26.87 per share. To surrender a Security for conversion, a Holder must, in the case of Global Securities, comply with the Applicable Procedures of the Depositary in effect at that time, and in the case of Certificated Securities, (1) surrender the Security to the Conversion Agent, (2) complete and manually sign the conversion notice below (or complete and manually sign a facsimile of such notice) and deliver such notice to the Conversion Agent, (3) if required by the Conversion Agent, furnish appropriate endorsements and transfer documents and (4) pay all funds required, if any, relating to interest or Additional Interest, if any, and any transfer or similar tax or duty, if required. No fractional share of Common Stock shall be issued upon conversion of any Security. Instead, the Company shall pay a cash adjustment as provided in the Indenture. No payment or adjustment shall be made for accrued and unpaid interest and Additional Interest, if any, or dividends on the Common Stock, except as provided in the Indenture. If the Company (i) is a party to a consolidation, merger or binding share exchange (ii) reclassifies the Common Stock or (iii) conveys, transfers or leases its properties and assets substantially as an entirety to any Person, the right to convert a Security into shares of Common Stock may be changed into a right to convert it into securities, cash or other assets of the Company or such other Person, in each case in accordance with the Indenture. 8. Denominations; Transfer; Exchange. The Securities are in fully registered form, without coupons, in denominations of $1,000 of principal amount and integral multiples of $1,000. A Holder may transfer or exchange Securities in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not transfer or exchange any Securities selected for redemption (except, in the case of a Security to be redeemed in part, the portion of the Security not to be redeemed) or any Securities in respect of which a Purchase Notice or Designated Event Purchase Notice has been given and not withdrawn (except, in the case of a Security to be purchased in part, the portion of the Security not to be purchased) or any Securities for a period of 15 days before the mailing of a notice of redemption of Securities to be redeemed. 9. Persons Deemed Owners. The registered Holder of this Security may be treated as the owner of this Security for all purposes. 10. Unclaimed Money or Securities. The Trustee and the Paying Agent shall return to the Company upon written request any cash or securities held by them for the payment of any amount with respect to the Securities that remains unclaimed for two years, subject to applicable unclaimed property law. After return to the Company, Holders entitled to the money or securities must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person. 11. Amendment; Waiver. Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Securities may be amended with the written consent or affirmative vote of the Holders of at least a majority in aggregate principal amount of the outstanding Securities and (ii) certain Defaults may be waived with the written consent or affirmative vote of the Holders of a majority in aggregate principal amount of the outstanding Securities. A-8 Without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Securities to (i) add to the covenants of the Company for the benefit of the Holders of Securities, (ii) surrender any right or power conferred upon the Company in the Indenture, (iii) provide for conversion rights of Holders of Securities if any reclassification or change of the Company's Common Stock or any consolidation, merger or sale of all or substantially all of the Company's assets occurs, (iv) provide for the assumption of the Company's obligations to the Holders of Securities in the case of a merger, consolidation, conveyance, transfer, sale, lease or other disposition pursuant to Article VII of the Indenture, (v) increase the Conversion Rate; provided, however, that such increase in the Conversion Rate shall not adversely affect the interest of the Holders of Securities (after taking into account tax and other consequences of such increase), (vi) comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the TIA, (vii) make any changes or modifications necessary in connection with the registration of the Securities under the Securities Act as contemplated in the Registration Rights Agreement; provided, however, that such action pursuant to this clause does not, in the good faith opinion of the Board of Directors of the Company (as evidenced by a Board Resolution) and the Trustee, adversely affect the interests of the Holders of Securities in any material respect, (viii) cure any ambiguity, correct or supplement any provision in the Indenture which may be inconsistent with any other provision therein or which is otherwise defective, or to make any other provisions with respect to matters or questions arising under the Indenture which the Company may deem necessary or desirable and which shall not be inconsistent with the provisions of the Indenture; provided, however, that such action pursuant to this clause does not, in the good faith opinion of the Board of Directors of the Company (as evidenced by a Board Resolution) and the Trustee, adversely affect the interests of the Holders of Securities in any material respect, (ix) to evidence the succession of another Person to the Company or any other obligor upon the Securities, and the assumption by any such successor of the covenants of the Company or such obligor herein and in the Securities, in each case in compliance with the provisions of the Indenture, (x) to evidence and provide the acceptance of the appointment of a successor trustee thereunder and (xi) add or modify any other provisions in the Indenture with respect to matters or questions arising thereunder which the Company and the Trustee may deem necessary or desirable and which shall not adversely affect the interests of the Holders of Securities. 12. Defaults and Remedies. If any Event of Default other than as a result of certain events of bankruptcy, insolvency or reorganization of the Company or its Subsidiaries occurs and is continuing, the principal of all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture. If an Event of Default occurs as a result of certain events of bankruptcy, insolvency or reorganization of the Company or its Subsidiaries, the principal of all the Securities shall become due and payable immediately without any declaration or other act on the part of the Trustee or any Holder, all as and to the extent provided in the Indenture. 13. Trustee Dealings with the Company. Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee. 14. Calculations in Respect of Securities. The Company or its agents shall be responsible for making all calculations called for under the Securities including, but not limited to, determination of the Market Price and Closing Sale Price of the Applicable Stock, the number of shares of Applicable Stock and/or the amount of cash issuable or payable upon conversion and the amounts of interest and Additional Interest, if any, on the Securities. Any calculations made in good faith and without manifest error shall be final and binding on Holders of the Securities. The Company or its agents shall be required to deliver to the Trustee a schedule of its calculations and the Trustee shall be entitled to conclusively rely upon the accuracy of such calculations without independent verification. 15. No Recourse Against Others. No recourse under or upon any obligation, covenant or agreement contained in the Indenture, or in this A-9 Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such, or against any past, present or future stockholder, officer or director, as such, of the Company or of any successor, either directly or through the Company or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders and as part of the consideration for the issue of the Securities. 16. Authentication. This Security shall not be valid until an authorized signatory of the Trustee signs, manually or by facsimile, the Trustee's Certificate of Authentication on the other side of this Security. 17. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act). 18. INDENTURE TO CONTROL; GOVERNING LAW. IN THE CASE OF ANY CONFLICT BETWEEN THE PROVISIONS OF THIS SECURITY AND THE INDENTURE, THE PROVISIONS OF THE INDENTURE SHALL CONTROL. THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. The Company shall furnish to any Holder upon written request and without charge a copy of the Indenture which has in it the text of this Security in larger type. Requests may be made to: CONCORD COMMUNICATIONS, INC. 400 Nickerson Road Marlboro, Massachusetts 01752 Attention: Chief Financial Officer Facsimile No.: (508) 481-9772 with a copy to: TESTA, HURWITZ & THIBEAULT, LLP 125 High Street Boston, Massachusetts 02110 Attention: Kevin M. Barry, Esq. Facsimile No.: (617) 248-7100 19. Registration Rights. The Holders of the Securities are entitled to the benefits of a Registration Rights Agreement, dated as of December 8, 2003, between the Company and Bear, Stearns & Co. Inc., including the receipt of Additional Interest upon a registration default (as defined in such agreement). A-10 ASSIGNMENT FORM To assign this Security, fill in the form below: I or we assign and transfer this Security to __________________ (Insert assignee's soc. sec. or tax ID no.) ____________ ____________ __________________ (Print or type assignee's name, address and zip code) and irrevocably appoint ____________________________________________ agent to transfer this Security on the books of the Company. The agent may substitute another to act for him. Your Signature(s): Date: _______________________ ____________________________________________ (Sign exactly as your name(s) appears on the other side of this Security) Signature Guaranteed _____________________________________ Participant in a Recognized Signature Guarantee Medallion Program By:_________ Authorized Signatory A-11 OPTION OF HOLDER TO ELECT PURCHASE If you wish to have this Security purchased by the Company pursuant to Article IV (Purchase at the Option of Holders on Specific Dates) or Article V (Purchase at the Option of Holders Upon a Designated Event) of the Indenture, check the box: Article IV[ ] Article V[ ]. If this Security is to be purchased by the Company pursuant to Article IV of the Indenture, check the box for the applicable Purchase Date: December 15, 2008 [ ] December 15, 2013 [ ] December 15, 2018 [ ]. If you wish to have a portion of this Security purchased by the Company pursuant to Article IV or Article V of the Indenture, as applicable, state the amount (in Principal Amount): $ ___________. If certificated, the certificate numbers of the Securities to be delivered for purchase are: . Any purchase of Securities pursuant hereto shall be pursuant to the terms and conditions specified in the Indenture. Your Signature(s): Date: _________________ ____________________________________________ (Sign exactly as your name(s) appears on the other side of this Security) Signature Guaranteed _____________________________________ Participant in a Recognized Signature Guarantee Medallion Program By:_________ Authorized Signatory A-12 CONVERSION NOTICE To convert this Security into Common Stock of the Company, check the box[ ]. To convert only part of this Security, state the principal amount to be converted (which must be $1,000 or an integral multiple of $1,000):____________. Please check one: [ ] I certify that neither I nor any other Person shall become a 10% Stockholder upon satisfaction by the Company of the Conversion Obligation underlying this Conversion Notice in Common Stock. [ ] I do not certify that neither I nor any other Person shall become a 10% Stockholder upon satisfaction by the Company of the Conversion Obligation underlying this Conversion Notice in Common Stock. "10% Stockholder" means a Person that owns, directly or indirectly, applying the provisions of Section 958(a) of the Internal Revenue Code of 1986, as amended (the "Code"), or by attribution, applying the provisions of Section 958(b) of the Code, 10% or more of the outstanding shares of Common Stock. If you want the stock certificate made out in another person's name fill in the form below: ______________________ (Insert the other person's soc. sec. or tax ID no.) ____________ ____________ ____________ (Print or type the other person's name, address and zip code) Your Signature(s): Date: _______________________ ________________________________________________ (Sign exactly as your name(s) appears on the other side of this Security) Signature Guaranteed _____________________________________ Participant in a Recognized Signature Guarantee Medallion Program By:_________ Authorized Signatory TRANSFER CERTIFICATE(2) RE: 3.0% CONVERTIBLE SENIOR NOTES DUE 2023 (THE "SECURITIES") OF CONCORD COMMUNICATIONS, INC. (THE "COMPANY") This certificate relates to $_______ principal amount of Securities owned in (check applicable box) [ ] book-entry [ ] definitive form by ______________ (the "Transferor"). The Transferor has requested a Registrar or the Trustee to exchange or register the transfer of such Securities. In connection with such request and in respect of each such Security, the Transferor does hereby certify that the Transferor is familiar with transfer restrictions relating to the Securities as provided in Section 2.6 and Section 2.12 of the Indenture dated December 8, 2003 between the Company and Wilmington Trust Company, as Trustee (the "Indenture"), and the transfer of such Security is being made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "Securities Act") (check applicable box) or the transfer or exchange, as the case may be, of such Security does not require registration under the Securities Act because (check applicable box): [ ] Such Security is being transferred to the Company or a Subsidiary; or [ ] Such Security is being transferred to a Qualified Institutional Buyer in compliance with Rule 144A under the Securities Act; or [ ] Such Security is being transferred pursuant to and in compliance with an exemption from the registration requirements under the Securities Act in accordance with Rule 144 (or any successor thereto) ("Rule 144") under the Securities Act; or [ ] Such Security is being transferred to an institutional investor that is an "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) - ---------- (2) This certificate should only be included if this Security is a Transfer Restricted Security. A-13 that has transferred a letter making certain representations, warranties and agreements relating to restrictions on transfer and an opinion of counsel to EquiServe, LLP as transfer agent (or any successor transfer agent, as applicable) that such transfer is in compliance with the Securities Act. [ ] Such Security is being transferred pursuant to an effective registration statement under the Securities Act; or [ ] Such Security is being acquired for the Transferor's own account, without transfer. The Transferor acknowledges and agrees that, if the transferee shall hold any such Securities in the form of beneficial interests in a Global Security which is a "restricted security" within the meaning of Rule 144 under the Securities Act, then such transfer can only be made pursuant to Rule 144A under the Securities Act and such transferee must be a "qualified institutional buyer" (as defined in Rule 144A). Date: ____________ Signature(s) of Transferor (If the registered owner is a corporation, partnership or fiduciary, the title of the person signing on behalf of such registered owner must be stated.) Signature Guaranteed _____________________________________ Participant in a Recognized Signature Guarantee Medallion Program By: __________________________ Authorized Signatory A-14 EXHIBIT B [FORM OF CERTIFICATE TO BE DELIVERED BY TRANSFEREE IN CONNECTION WITH TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS] [DATE] Wilmington Trust Company, as Trustee 1100 North Market Street, Rodney Square North Wilmington, DE 19890-1615 Attention: Corporate Capital Markets EquiServe, LLP, as Transfer Agent Re: Concord Communications, Inc. Ladies and Gentlemen: In connection with the undersigned's proposed purchase of $____________ aggregate principal amount of 3.0% Convertible Senior Notes due 2023 (the "Notes") of Concord Communications, Inc. (the "Company") or _____________ shares of Common Stock of the Company issued upon conversion of the Notes, par value $.01 per share (the "Common Stock," and together with the Notes, the "Securities"), the undersigned confirms, represents and warrants that: (1) The undersigned is an institutional "accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the "Securities Act") (an "Institutional Accredited Investor"). (2) (A) Any purchase of the Securities by the undersigned shall be for the undersigned's own account or for the account of one or more other Institutional Accredited Investors or as fiduciary for the account of one or more trusts, each of which is an "accredited investor" within the meaning of Rule 501(a)(7) under the Securities Act and for each of which the undersigned exercises sole investment discretion or (B) the undersigned is a "bank", within the meaning of Section 3(a)(2) of the Securities Act, or a "savings and loan association" or other institution described in Section 3(a)(5)(A) of the Securities Act that is acquiring the Securities as fiduciary for the account of one or more institutions for which the undersigned exercises sold investment discretion. (3) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of its investment in the Securities, and the undersigned and any accounts for which it is acting is each able to bear the economic risk of its or their investment. (4) The undersigned has been given an opportunity to ask questions and receive answers concerning the terms and conditions of the Securities and to obtain any additional information which the Company possesses or can acquire without reasonable effort or expense that is necessary to verify the accuracy of the information furnished. (5) The undersigned is not acquiring the Securities with a view to distribution thereof or with any present intention of offering or selling any Securities, except as permitted below; provided that the disposition of the undersigned's property and the property of any accounts for which the undersigned is acting as fiduciary shall remain at all times within the undersigned's control. (6) The undersigned understands that the Securities have not been registered under the Securities Act or any applicable state securities laws. (7) The undersigned agrees, on its own behalf and on behalf of each account for which the undersigned acquires any Securities, that if in the future the undersigned decides to resell or otherwise transfer such Securities within two years after the original issuance of the Notes, such Securities may be resold or otherwise transferred only: (A) to the Company or any subsidiary thereof; B-1 (B) with respect to Notes only, to a person which is a "qualified institutional buyer" (as defined in Rule 144A under the Securities Act) in compliance with Rule 144A under the Securities Act; (C) pursuant to the exemption from registration provided by Rule 144 under the Securities Act (if available); (D) pursuant to an exemption from registration under the Securities Act to an Institutional Accredited Investor that prior to such transfer, furnishes to you (and the Trustee or the Transfer Agent, as the case may be) a signed letter substantially in the form of this letter, a transfer certificate substantially in the form provided in the Indenture and an opinion of counsel; or (E) pursuant to a registration statement which has been declared effective under the Securities Act and continues to be effective at the time of such transfer. The undersigned further agrees to provide to any person purchasing any of the Securities from us a notice advising such purchaser that resales of the Securities are restricted as stated herein. (8) The undersigned understands that, on any proposed resale of any Securities, the undersigned shall be required to furnish to the Trustee or the Transfer Agent, as the case may be, and the Company such certifications, legal opinions and other information as you and the Company may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. The undersigned further understands that the Securities purchased by the undersigned shall be certificated securities and shall bear a legend to the foregoing effect. Each of the Company, the Trustee or the Transfer Agent, as the case may be, and the initial purchasers of the Securities are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Very truly yours, By:_ Name: Title: Address: B-2 EXHIBIT C [FORM OF RESTRICTIVE LEGEND FOR COMMON STOCK ISSUED UPON CONVERSION] THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF 1933"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER: (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933 OR (B) IT IS AN INSTITUTIONAL INVESTOR THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR"); (2) AGREES THAT IT SHALL NOT, WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY UPON THE CONVERSION OF WHICH THE SHARES OF COMMON STOCK EVIDENCED HEREBY WERE ISSUED, RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE), (C) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933 (IF AVAILABLE) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT PRIOR TO SUCH TRANSFER, FURNISHES TO EQUISERVE, LLP, AS TRANSFER AGENT (OR ANY SUCCESSOR TRANSFER AGENT, AS APPLICABLE), CERTIFICATIONS AND OPINION OF COUNSEL REQUIRED BY THE COMPANY OR TRANSFER AGENT OR (D) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND THAT CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND (3) AGREES THAT IT SHALL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(B) OR 2(D) ABOVE), A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.] C-1 EX-4.5 4 b49087coexv4w5.txt EX-4.5 REGISTRATION RIGHTS AGREEMENT EXHIBIT 4.5 EXECUTION COPY CONCORD COMMUNICATIONS, INC. 3.0% CONVERTIBLE SENIOR NOTES DUE 2023 REGISTRATION RIGHTS AGREEMENT December 8, 2003 BEAR, STEARNS & CO. INC. 383 Madison Avenue New York, New York 10179 Ladies and Gentlemen: Concord Communications, Inc., a Massachusetts corporation (the "Company"), proposes to issue and sell to the initial purchaser named in the purchase agreement (the "Initial Purchaser"), upon the terms set forth in such purchase agreement dated December 2, 2003 (the "Purchase Agreement"), its 3.0% Convertible Senior Notes due 2023 (the "Securities"). As an inducement to the Initial Purchaser to enter into the Purchase Agreement and in satisfaction of a condition to the obligations of the Initial Purchaser thereunder, the Company agrees with the Initial Purchaser for the benefit of Holders (as defined herein) from time to time of the Registrable Securities (as defined herein) as follows: 1. Definitions. (a) Capitalized terms used herein without definition shall have the meanings ascribed to them in the Purchase Agreement. As used in this Agreement, the following defined terms shall have the following meanings: "Additional Interest" has the meaning assigned thereto in Section 7(a) hereof. "Additional Shares" has the meaning assigned thereto in Section 7(a) hereof. "Affiliate" of any specified person means any other person which, directly or indirectly, is in control of, is controlled by, or is under common control with such specified person. For purposes of this definition, control of a person means the power, direct or indirect, to direct or cause the direction of the management and policies of such person whether by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Applicable Amount" means, (i) with respect to the Securities, the principal amount of the Securities and (ii) with respect to shares of Common Stock issued upon conversion of the Securities pursuant to the Indenture, the principal amount of Securities that would then be convertible into such number of shares. "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in The City of New York are authorized or obligated by law or executive order to close. "Commission" means the United States Securities and Exchange Commission, or any other federal agency at the time administering the Exchange Act or the Securities Act, whichever is the relevant statute for the particular purpose. "Common Stock" means the Company's common stock, par value $0.01 per share. "DTC" means The Depository Trust Company. "Effectiveness Period" has the meaning assigned thereto in Section 2(b)(i) hereof. "Effective Time" means the time at which the Commission declares any Shelf Registration Statement effective or at which any Shelf Registration Statement otherwise becomes effective. "Exchange Act" means the United States Securities Exchange Act of 1934, as amended. "Holder" means any person that is the record owner of Registrable Securities (and includes any person that has a beneficial interest in any Registrable Security in book-entry form). "Indenture" means the Indenture, dated as of December 8, 2003, between the Company and Wilmington Trust Company, pursuant to which the Securities are to be issued, and as amended and supplemented from time to time in accordance with its terms. "Issue Date" means the first date of original issuance of the Securities. "Majority of Holders" means Holders holding over 50% of the aggregate principal amount of Registrable Securities outstanding. "Notice and Questionnaire" means a Notice of Registration Statement and Selling Securityholder Election and Questionnaire substantially in the form of Appendix A hereto. "Notice Holder" has the meaning assigned thereto in Section 3(a)(i) hereof. The term "person" means an individual, partnership, limited liability company, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof. "Prospectus" means the prospectus included in any Shelf Registration Statement, as amended or supplemented by any prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by any Shelf Registration Statement and by 2 all other amendments and supplements to such prospectus, including all material incorporated by reference in such prospectus and all documents filed after the date of such prospectus by the Company under the Exchange Act and incorporated by reference therein. "Registrable Securities" means all or any portion of the Securities issued from time to time under the Indenture in registered form and the shares of Common Stock issuable upon conversion of such Securities until the earliest of: (x) the date on which such security has been registered under the Securities Act and disposed of pursuant to an effective registration statement, (y) the date that is two years after the later of (1) the last date of original issuance of the Securities and (2) the last date that the Company or any of its Affiliates was the owner of such Securities (or any predecessor thereto), or such shorter period of time as permitted by Rule 144(k) (or any successor rule or regulation) under the Securities Act or any successor provisions thereunder or (z) its sale to the public pursuant to Rule 144 (or any successor rule or regulation) under the Securities Act. "Registration Default" has the meaning assigned thereto in Section 7(a) hereof. "Securities Act" means the United States Securities Act of 1933, as amended. "Shelf Registration" means a registration effected pursuant to Section 2 hereof. "Shelf Registration Statement" means a "shelf" registration statement filed under the Securities Act providing for the registration of, and the sale on a continuous or delayed basis by the Holders of, all of the Registrable Securities pursuant to Rule 415 under the Securities Act and/or any similar rule that may be adopted by the Commission, filed by the Company pursuant to the provisions of Section 2 of this Agreement, including the Prospectus contained therein, any amendments and supplements to such registration statement, including post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement, and any additional "shelf" registration statements filed under the Securities Act to permit the registration and sale of Registrable Securities pursuant to Section 3(a)(ii) hereof. "Suspension Period" has the meaning assigned thereto in Section 2(c) hereof. "Trust Indenture Act" means the Trust Indenture Act of 1939, or any successor thereto, and the rules, regulations and forms promulgated thereunder, as the same shall be amended from time to time. The term "underwriter" means any underwriter, or any person deemed to be an underwriter pursuant to the Securities Act and Exchange Act and the respective rules and regulations thereunder, as in effect at any relevant time, of Registrable Securities in connection with an offering thereof under a Shelf Registration Statement. (a) Wherever there is a reference in this Agreement to a percentage of the "principal amount" of Registrable Securities or to a percentage of Registrable Securities, each share of Common Stock issued upon conversion of the Securities shall represent a principal amount or percentage of Registrable Securities determined based on a quotient, (i) the numerator of which 3 shall be equal to the aggregate principal amount of Securities issued, less the aggregate principal amount of Securities outstanding as of the date of determination, and (ii) the denominator of which shall be equal to the aggregate number of shares of Common Stock issued upon conversion of the Securities as of the date of determination. 2. Shelf Registration. (a) The Company shall, no later than 90 calendar days following the Issue Date, file with the Commission a Shelf Registration Statement relating to the offer and sale of the Registrable Securities by the Holders from time to time in accordance with the methods of distribution elected by such Holders and, thereafter, shall use its reasonable best efforts to cause such initial Shelf Registration Statement to be declared effective under the Securities Act no later than 210 calendar days following the Issue Date; provided, however, that no Holder shall be entitled to be named as a selling securityholder in any Shelf Registration Statement as of the date it is declared effective or to use the Prospectus forming a part thereof for offers and resales of Registrable Securities unless such Holder is a Notice Holder. (b) Subject to Section 2(c) hereof, the Company shall use its reasonable best efforts: (i) to keep any Shelf Registration Statement continuously effective, supplemented and amended as required by the provisions of Section 3(j) hereof, in order to permit the Prospectus forming a part thereof to be usable by Holders until the earlier of: (1) two years from the last date of original issuance of any Securities or (2) such shorter period ending on the date that (x) all of the Holders of Registrable Securities that are not Affiliates of the Company are able to sell all Registrable Securities immediately without restriction pursuant to Rule 144(k) under the Securities Act or any successor rule thereto, (y) all Registrable Securities registered under the Shelf Registration Statements have been sold or (z) all Registrable Securities have ceased to be outstanding (such period being referred to herein as the "Effectiveness Period"); and (ii) after the Effective Time of the initial Shelf Registration Statement, after the receipt of a completed and signed Notice and Questionnaire from any Holder of Registrable Securities that is not then a Notice Holder, to take the actions provided for in Section 3(a)(ii) hereof. The Company shall be deemed not to have used its reasonable best efforts to keep any Shelf Registration Statement effective during the Effectiveness Period if the Company voluntarily takes any action that would result in Holders of Registrable Securities covered thereby not being able to offer and sell any of such Registrable Securities under such Shelf Registration Statement during that period, unless such action is (A) required by applicable law and the Company thereafter promptly complies with the requirements of Section 3(j) hereof or (B) permitted pursuant to Section 2(c) hereof. 4 (c) After the Effective Time of the initial Shelf Registration Statement, the Company may suspend the use of any Prospectus by written notice to the Notice Holders for a period not to exceed an aggregate of 45 calendar days in any 90 calendar day period (each such period, a "Suspension Period") if: (i) an event has occurred and is continuing as a result of which the Shelf Registration Statement would, in the Company's judgment, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (ii) the Company determines in good faith that the disclosure of such event at such time would have a material adverse effect on the Company and its subsidiaries taken as a whole; provided, that in the event the disclosure relates to a previously undisclosed proposed or pending material business transaction, the disclosure of which would impede the Company's ability to consummate such transaction, the Company may extend a Suspension Period from 30 calendar days to 60 calendar days; provided, however, that Suspension Periods (including, without limitation, any such extension of a Suspension Period) shall not exceed an aggregate of 120 calendar days in any 360 calendar day period. 3. Registration Procedures. In connection with the Shelf Registration Statements, the following provisions shall apply: (a) (i) Not less than 30 calendar days prior to the time the Company in good faith intends to have the initial Shelf Registration Statement declared effective, the Company shall distribute the Notice and Questionnaire to the Holders of Registrable Securities. The Company shall take action to name as a selling securityholder in the initial Shelf Registration Statement at the Effective Time each Holder that completes, executes and delivers a Notice and Questionnaire to the Company at the address set forth in the Notice and Questionnaire (a "Notice Holder") prior to or on the 20th calendar day after such Holder's receipt thereof so that such Holder is permitted to deliver the Prospectus forming a part thereof as of such time to purchasers of such Holder's Registrable Securities in accordance with applicable law. The Company shall not be required to take any action to name any Holder as a selling securityholder in the initial Shelf Registration Statement at the time of its effectiveness or to enable any Holder to use the Prospectus forming a part thereof for resales of Registrable Securities unless such Holder has returned a completed and signed Notice and Questionnaire to the Company in a timely manner. (ii) After the Effective Time of the initial Shelf Registration Statement, the Company shall, upon the request of any Holder of Registrable Securities that is not then a Notice Holder, promptly send a Notice and Questionnaire to such Holder. After the Effective Time of the initial Shelf Registration Statement, the Company 5 shall (A) after the date a completed and signed Notice and Questionnaire is delivered to the Company, prepare and file with the Commission (x) a supplement to the Prospectus as promptly as practicable or, if required by applicable law, a post-effective amendment to the Shelf Registration Statement or an additional Shelf Registration Statement as promptly as practicable after the end of each fiscal quarter and (y) any other document required by applicable law, so that the Holder delivering such Notice and Questionnaire is named as a selling securityholder in a Shelf Registration Statement and is permitted to deliver the Prospectus to purchasers of such Holder's Registrable Securities in accordance with applicable law, and (B) if the Company shall file a post-effective amendment to the Shelf Registration Statement, or an additional Shelf Registration Statement, use its reasonable best efforts to cause such post-effective amendment or such additional Shelf Registration Statement to become effective under the Securities Act as promptly as is practicable; provided, however, that if a Notice and Questionnaire is delivered to the Company during a Suspension Period, the Company shall not be obligated to take the actions set forth in this clause (ii) until the termination of such Suspension Period. (b) The Company shall furnish to each Notice Holder, prior to the Effective Time, a copy of the Shelf Registration Statement initially filed with the Commission, and shall furnish to such Notice Holders, prior to the filing with the Commission, copies of each amendment thereto and each amendment or supplement, if any, to the Prospectus included therein (other than supplements solely for the purpose of naming one or more Notice Holders as selling securityholders), and shall use its best efforts to reflect in each such document, at the Effective Time or when so filed with the Commission, as the case may be, such comments as such Notice Holders and their respective counsel reasonably may propose. (c) The Company shall promptly take such action as may be necessary so that (i) each of the Shelf Registration Statements and any amendment thereto and the Prospectus forming a part thereof and any amendment or supplement thereto (and each report or other document incorporated therein by reference in each case) complies in all material respects with the Securities Act and the Exchange Act and the respective rules and regulations thereunder, as in effect at any relevant time, (ii) each of the Shelf Registration Statements and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (iii) each of the Prospectus forming a part of any Shelf Registration Statement, and any amendment or supplement to such Prospectus, in the form delivered to purchasers of the Registrable Securities during the Effectiveness Period, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (d) The Company shall promptly advise each Notice Holder, and shall confirm such advice in writing if so requested by any such Notice Holder: (i) when the initial Shelf Registration Statement has been filed with the Commission and when the initial Shelf Registration Statement has become effective, in each case making a public announcement thereof in a newspaper of general 6 circulation in The City of New York or by publishing the information on the Company's website or through such other broad, public medium as the Company may see fit; (ii) when any Prospectus supplement, Shelf Registration Statement or post-effective amendment to a Shelf Registration has been filed with the Commission and, with respect to a Shelf Registration Statement or any post-effective amendment, when the same has been declared effective by the Commission; (iii) of any request by the Commission for amendments or supplements to any Shelf Registration Statement or the Prospectus included therein or for additional information; (iv) of the issuance by the Commission of any stop order suspending the effectiveness of any Shelf Registration Statement or the initiation of any proceedings for such purpose; (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities included in any Shelf Registration Statement for sale in any jurisdiction or the initiation of any proceeding for such purpose; and (vi) of the happening of any event or the existence of any state of facts that requires the making of any changes in any Shelf Registration Statement or the Prospectus included therein so that, as of such date, such Shelf Registration Statement and Prospectus do not contain an untrue statement of a material fact and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading (which advice shall be accompanied by an instruction to such Holders to suspend the use of the Prospectus until the requisite changes have been made, which notice need not specify the nature of the event giving rise to such suspension). (e) The Company shall use its best efforts to prevent the issuance, and if issued to obtain the withdrawal at the earliest possible time, of any order suspending the effectiveness of any Shelf Registration Statement. (f) As promptly as reasonably practicable furnish to each Notice Holder, upon their request and without charge, at least one (1) conformed copy of the Registration Statement and any amendment thereto, including financial statements but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits (unless requested in writing to the Company by such Notice Holder). (g) The Company shall, during the Effectiveness Period, deliver to each Notice Holder, without charge, as many copies of each Prospectus in which the Notice Holder is listed as a selling securityholder included in the applicable Shelf Registration Statement and any amendment or supplement thereto as such Notice Holder may reasonably request; and the 7 Company consents (except during a Suspension Period or during the continuance of any event described in Section 3(d) (iii)-(vi) above) to the use of the Prospectus and any amendment or supplement thereto by each of the Notice Holders in connection with the offering and sale of the Registrable Securities covered by the Prospectus and any amendment or supplement thereto during the Effectiveness Period. (h) Prior to any offering of Registrable Securities pursuant to a Shelf Registration Statement, the Company shall (i) register or qualify or cooperate with the Notice Holders and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or "blue sky" laws of such jurisdictions within the United States as any Notice Holder may reasonably request in writing, (ii) keep such registrations or qualifications or exemption therefrom in effect and comply with such laws so as to permit the continuance of offers and sales in such jurisdictions for so long as may be necessary to enable any Notice Holder or underwriter, if any, to complete its distribution of Registrable Securities pursuant to such Shelf Registration Statement, and (iii) take any and all other actions necessary or advisable to enable the disposition in such jurisdictions of such Registrable Securities; provided, however, that in no event shall the Company be obligated to (A) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to so qualify but for this Section 3(h) or (B) subject itself to general or unlimited service of process or to taxation in any such jurisdiction if they are not now so subject. (i) Unless any Registrable Securities shall be in book-entry only form, the Company shall cooperate with the Notice Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to any Shelf Registration Statement, which certificates, if so required by any securities market or exchange upon which any Registrable Securities are quoted or listed, shall be penned, lithographed or engraved, or produced by any combination of such methods, on steel engraved borders, and which certificates shall be free of any restrictive legends and in such permitted denominations and registered in such names as Notice Holders may request in connection with the sale of Registrable Securities pursuant to such Shelf Registration Statement. (j) Upon the occurrence of any fact or event contemplated by paragraph 3(d)(vi) above, subject to Section 2(c) hereof, the Company shall promptly, but in any event within 10 Business Days following such occurrence, prepare, file (and have declared effective) a post-effective amendment to any Shelf Registration Statement or an amendment or supplement to the related Prospectus included therein or file any other document with the Commission so that, as thereafter delivered to purchasers of the Registrable Securities, the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If the Company notifies the Notice Holders of the occurrence of any fact or event contemplated by paragraph 3(d)(vi) above, the Notice Holder shall suspend the use of the Prospectus until the requisite changes to the Prospectus have been made. 8 (k) Not later than the Effective Time of a Shelf Registration Statement, the Company shall provide a CUSIP number for the debt securities to be sold pursuant to a Shelf Registration Statement. (l) The Company shall use its best efforts to comply with the Securities Act and the Exchange Act and the respective rules and regulations thereunder, as in effect at any relevant time, and make generally available to its securityholders earnings statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period if such period is a fiscal year), or such shorter period as required by the Securities Act and the Exchange Act and the rules and regulations thereunder, as in effect at any relevant time, commencing on the first day of the first fiscal quarter of the Company commencing after (i) the effective date of a Shelf Registration Statement, (ii) the effective date of each post-effective amendment to such Shelf Registration Statement, or (iii) the date of each filing by the Company with the Commission of an Annual Report on Form 10-K that is incorporated by reference in such Shelf Registration Statement, which statements shall cover said 12-month periods. (m) Not later than the Effective Time of the initial Shelf Registration Statement, the Company shall use its best efforts to cause the Indenture to be qualified under the Trust Indenture Act; in connection with such qualification, the Company shall cooperate with the Trustee under the Indenture and the Holders (as defined in the Indenture) to effect such changes to the Indenture as may be required for such Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and the Company shall execute, and shall use all reasonable efforts to cause the Trustee to execute, all documents that may be required to effect such changes and all other forms and documents required to be filed with the Commission to enable such Indenture to be so qualified in a timely manner. In the event that any such amendment or modification referred to in this Section 3(m) involves the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture. (n) The Company shall enter into such customary agreements and take all such other necessary actions in connection therewith (including those reasonably requested by the holders of a majority of the Registrable Securities being sold) in order to expedite or facilitate disposition of such Registrable Securities; provided, that the Company shall not be required to take any action in connection with an underwritten offering without its consent. (o) The Company shall make reasonably available for inspection by one or more representatives of the selling Holders, designated in writing by a Majority of Holders whose Registrable Securities are included in a Shelf Registration Statement, any underwriter participating in any disposition pursuant to any Shelf Registration Statement, and any attorney, accountant or other agent retained by such Notice Holders or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (B) cause the Company's officers, directors and employees to make reasonably available for inspection all information reasonably requested by such Notice Holders or any such underwriter, attorney, accountant or agent in connection with such Shelf Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that 9 such persons shall, at the Company's request, first agree in writing with the Company that any information that is reasonably and in good faith designated by the Company in writing as confidential at the time of delivery, or inspection, as the case may be, of such information shall be kept confidential by such persons and shall be used solely for the purposes of exercising rights under this Agreement, unless such disclosure is made in connection with a court proceeding or required by law, or such records, information or documents become available to the public generally or through a third party without an accompanying obligation of confidentiality; and provided further that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of the Notice Holders and the other parties entitled thereto by one counsel designated by and on behalf of the Notice Holders and other parties. (p) The Company will use its best efforts to cause the Common Stock issuable upon conversion of the Securities to be quoted or listed on the Nasdaq National Market or other market or stock exchange on which the Common Stock primarily trades on or prior to the Effective Time of each Shelf Registration Statement hereunder. (q) The Company will cooperate and assist in any filings required to be made with National Association of Securities Dealers, Inc. (r) The Company shall use its best efforts to take all other steps necessary to effect the registration, offering and sale of the Registrable Securities covered by each Shelf Registration Statement contemplated hereby. 4. Registration Expenses. The Company shall bear all fees and expenses incurred in connection with the performance by the Company of its obligations under Sections 2 and 3 of this Agreement whether or not any of the Shelf Registration Statements are declared effective. Such fees and expenses shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses (x) with respect to filings required to be made with the National Association of Securities Dealers, Inc. and (y) of compliance with United States federal and state securities or Blue Sky laws to the extent such filings or compliance are required pursuant to this Agreement (including, without limitation, reasonable fees and disbursements of the counsel specified in the next sentence in connection with Blue Sky qualifications of the Registrable Securities under the laws of such jurisdictions as the Notice Holders of a majority of the Registrable Securities being sold pursuant to a Shelf Registration Statement may designate)), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities in a form eligible for deposit with The Depository Trust Company), (iii) duplication expenses relating to copies of any Shelf Registration Statement or Prospectus delivered to any Holders hereunder, (iv) fees and disbursements of counsel for the Company in connection with the Shelf Registration Statement, and (v) reasonable fees and disbursements of the Trustee and its counsel and of the registrar and transfer agent for the Common Stock. In addition, the Company shall bear or reimburse the Notice Holders for the reasonable fees and disbursements of one firm of legal counsel for the Holders, which shall initially be counsel to the Initial Purchaser, but which may, upon the written consent of the Initial Purchaser (which shall not be unreasonably withheld), be another nationally recognized law firm 10 experienced in securities law matters designated by the Company. In addition, the Company shall pay the internal expenses of the Company (including, without limitation, all salaries and expenses of officers and employees performing legal or accounting duties), the expense of any annual audit, the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange on which similar securities of the Company are then listed and the fees and expenses of any person, including special experts, retained by the Company. 5. Indemnification and Contribution. (a) Indemnification by the Company. The Company shall indemnify and hold harmless each Notice Holder, the Initial Purchaser, and each person, if any, who controls any such Notice Holder or Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage, liability or expense whatsoever as incurred (including but not limited to reasonable attorneys' fees and any and all expenses whatsoever incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation), joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise, insofar as any such loss, claim, damage, liability or expense (or action in respect thereof) arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement or any amendment thereto or any related preliminary prospectus or the Prospectus or any amendment thereto of supplement thereof, or arises out of, or is based upon, the omission or alleged omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Company shall not be liable to any such indemnified party in any such case to the extent that any such loss, claim, damage, liability or expense arises out of, or is based upon, any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of such indemnified party specifically for use therein; and provided further, however, that the Company shall not be liable to any such indemnified party in any such case to the extent that such loss, claim, damage, liability or expense arises from an offer or sale by a Notice Holder of Registrable Securities during a Suspension Period, if such indemnified party is a Notice Holder that received from the Company a notice of the commencement of such Suspension Period prior to the making of such offer or sale. The foregoing indemnity agreement is in addition to any liability that the Company may otherwise have to any indemnified party. The Company shall not be liable under this Section 5(a) for any settlement of any action effected without its written consent, which shall not be unreasonably withheld, provided, however, that with respect to actions pursuant to clauses (1), (2) and (3) of Section 5(c), no such consent shall be required. (b) Indemnification by the Notice Holders. Each Notice Holder, severally and not jointly, shall indemnify and hold harmless the Company, the Initial Purchaser, and each person, if any, who controls the Company or the Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage, liability or expense whatsoever as incurred (including but not limited to attorneys' fees and any and all expenses whatsoever incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in 11 settlement of any claim or litigation), joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise, insofar as any such loss, claim, damage, liability or expense (or action in respect thereof) arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement or any amendment thereto or any related preliminary prospectus or the Prospectus or any amendment thereto of supplement thereof, or arises out of, or is based upon, the omission or alleged omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission made therein was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Notice Holder specifically for use therein. In no event shall the liability of any selling Notice Holder hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation. The foregoing indemnity agreement is in addition to any liability that any Notice Holder may otherwise have to the Company, the Initial Purchaser and any such controlling person. (c) Notices of Claims, Etc. Promptly after receipt by an indemnified party under this Section 5 of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 5, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability that it may have under this Section 5. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 5 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that the indemnified party shall have the right to employ counsel to represent jointly the indemnified party and its respective directors, employees, officers and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the indemnified party against the indemnifying party under this Section 5 if (1) employment of such counsel has been authorized in writing by the indemnifying party, or (2) such indemnifying party shall not have employed counsel to have charge of the defense of such proceeding within 30 days of the receipt of notice thereof, or (3) such indemnified party shall have reasonably concluded that the representation of such indemnified party and those directors, employees, officers and controlling persons by the same counsel representing the indemnifying party would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them or where there may be one or more defenses available to them that are different from, additional to or in conflict with those available to the indemnifying party, and in any such event ((1), (2) or (3)) the fees and expenses of such separate counsel shall be paid by the indemnifying party as incurred. It is understood that the indemnifying party shall not be liable for the fees and expenses of more than 12 one separate firm (in addition to local counsel in each jurisdiction) for all indemnified parties in connection with any proceeding or related proceedings. No indemnifying party shall, without the prior written consent of the indemnified parties, effect any settlement or compromise of, or consent to the entry of judgment with respect to, any pending or threatened claim, investigation, action or proceeding in respect of which indemnity or contribution may be or could have been sought hereunder (whether or not the indemnified party or parties are actual or potential parties thereto) unless (x) such settlement, compromise or judgment (i) includes an unconditional release of such indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party, and (y) the indemnifying party confirms in writing its indemnification obligations hereunder with respect to such settlement, compromise or judgment. (d) Contribution. If the indemnification provided for in this Section 5 is unavailable or insufficient to hold harmless an indemnified party under subsections (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages, expenses or liabilities (or actions in respect thereof) referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party on the other from the registration of the Registrable Securities pursuant to the Shelf Registration, or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties on the one hand and the indemnified party on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof) as well as any other relevant equitable considerations. The relative fault of the parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or such Holder or such other indemnified party, as the case may be, on the other, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to herein. Notwithstanding any other provision of this Section 5(d), the Holders of the Registrable Securities shall not be required to contribute any amount in excess of the amount by which the gross proceeds received by such Holders from the sale of the Registrable Securities pursuant to the Shelf Registration Statement exceeds the amount of damages which such Holders have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this paragraph (d), each person, if any, who controls such indemnified party 13 within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as such indemnified party and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as the Company. The Holders' respective obligations to contribute pursuant to this Section 5 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Registration Statement and not joint. The remedies provided for in this Section 5 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. (e) The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Initial Purchaser, any Holder or any person controlling the Initial Purchaser or Holder, or by or on behalf of the Company, its officers or directors or any person controlling the Company, and (iii) any sale of Registrable Securities pursuant to the Shelf Registration Statement. 6. Holder's Obligations. Each Holder agrees, by acquisition of the Registrable Securities, that no Holder of Registrable Securities shall be entitled to sell any of such Registrable Securities pursuant to a Shelf Registration Statement or to receive a Prospectus relating thereto, unless such Holder has furnished the Company with a Notice and Questionnaire as required pursuant to Section 3(a) hereof (including the information required to be included in such Notice and Questionnaire) and the information set forth in the next sentence. Each Notice Holder agrees promptly to furnish to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Notice Holder not misleading and any other information regarding such Notice Holder and the distribution of such Registrable Securities as the Company may from time to time reasonably request. Any sale of any Registrable Securities by any Notice Holder shall constitute a representation and warranty by such Notice Holder that the information relating to such Notice Holder and its plan of distribution is as set forth in the Prospectus delivered by such Notice Holder in connection with such disposition, that such Prospectus does not as of the time of such sale contain any untrue statement of a material fact relating to or provided by such Notice Holder or its plan of distribution and that such Prospectus does not as of the time of such sale omit to state any material fact relating to or provided by such Notice Holder or its plan of distribution necessary in order to make the statements in such Prospectus, in the light of the circumstances under which they were made, not misleading. 7. Additional Interest. (a) Notwithstanding any postponement of the effectiveness pursuant to Section 2(a) hereof, if (i) on or prior to the 90th day following the Issue Date, a Shelf Registration Statement has not been filed with the Commission, (ii) on or prior to the 210th day following the Issue Date, such initial Shelf Registration Statement is not declared effective by the Commission, (iii) after the effectiveness date of any Shelf Registration Statement, (x) such Shelf Registration Statement ceases to be effective or usable for the offer and sale of Registrable Securities (other than due to a Suspension Period), and the Company fails to file (and have declared effective), within five Business Days, a post-effective amendment to such Shelf Registration Statement or 14 amendment or supplement to the Prospectus contained therein or such other document with the Commission to make such Shelf Registration Statement effective or such Prospectus usable, or (y) the Suspension Periods exceed 45 or 60 calendar days, as applicable, whether or not consecutive, in any 90 calendar day period, or more than 120 calendar days, whether or not consecutive, during any 360 calendar day period during the Effectiveness Period, or (iv) the Company shall have failed to timely comply with any of its obligations set forth in Section 3(a)(ii) hereof (each, a "Registration Default"), the Company shall be required to pay additional interest ("Additional Interest"), from and including the day following such Registration Default to but excluding the day on which such Registration Default is cured, at a rate per annum equal to an additional one-quarter of one percent (0.25%) of the Applicable Amount to and including the 90th day following such Registration Default, and one-half of one percent (0.50%) thereof from and after the 91st day following such Registration Default. In the event any Registrable Securities that are Securities are converted into Common Stock during the continuance of a Registration Default, the Company will deliver to each Holder converting Securities during the continuance of a Registration Default 103% of the number of shares of Common Stock the Holder would have otherwise received upon conversion ("Additional Shares") and no Additional Interest shall be payable on such converted Securities. (b) In the case of a Registration Default described in Sections 7(a)(i)-(iii) above, Additional Interest, if any, shall be payable only to Notice Holders and, in respect of a Registration Default described in Section 7(a)(iv) above, Additional Interest, if any, shall be payable only to Notice Holders to whom such Registration Default relates. (c) Any amounts to be paid as Additional Interest pursuant to paragraph (a) of this Section 7 shall be paid in cash semiannually in arrears, with the first semiannual payment due on the first interest payment date following the date on which such Additional Interest begins to accrue, to the Notice Holders in whose name the Securities or Common Stock issued upon conversion of the Securities are registered at the close of business on June 15 or December 15, whether or not a Business Day, immediately preceding the relevant interest payment date. (d) Except as provided in Section 8(a) hereof, the Additional Interest or Additional Shares as set forth in this Section 7 shall be the exclusive cash (or asset, as the case may be) remedy available to the Holders of Registrable Securities for such Registration Default. In no event shall the Company be required to pay Additional Interest in excess of the applicable maximum amount of one-half of one percent (0.50%) set forth above, regardless of whether one or multiple Registration Defaults exist. 8. Miscellaneous. (a) Specific Performance. The parties hereto acknowledge that there would be no adequate remedy at law if the Company fails to perform any of its obligations hereunder and that the Initial Purchaser and the Holders from time to time may be irreparably harmed by any such failure, and accordingly agree that the Initial Purchaser and such Holders, in addition to any other remedy to which they may be entitled at law or in equity and without limiting the remedies available to the Notice Holders under Section 7 hereof, shall be entitled to compel specific performance of the obligations of the Company under this Registration Rights Agreement in 15 accordance with the terms and conditions of this Registration Rights Agreement, in any court of the United States or any State thereof having jurisdiction. (b) Amendments and Waivers. This Agreement, including this Section 8(b), may be amended, and waivers or consents to departures from the provisions hereof may be given, only by a written instrument duly executed by the Company and a Majority of Holders. Each Holder of Registrable Securities outstanding at the time of any such amendment, waiver or consent or thereafter shall be bound by any amendment, waiver or consent effected pursuant to this Section 8(b), whether or not any notice, writing or marking indicating such amendment, waiver or consent appears on the Registrable Securities or is delivered to such Holder. (c) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand delivery, by telecopier, by courier guaranteeing overnight delivery or by first-class mail, return receipt requested, and shall be deemed given (i) when made, if made by hand delivery, (ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after being deposited with such courier, if made by overnight courier or (iv) on the date indicated on the notice of receipt, if made by first-class mail, to the parties as follows: (w) if to a Holder of Registrable Securities, at the most current address given by such Holder to the Company in a Notice and Questionnaire or any amendment thereto; (x) if to the Company, to: Concord Communications, Inc. 600 Nickerson Road Marlboro, MA 01752 Attention: Chief Financial Officer Telephone: (508) 460-4646 Facsimile: (508) 481-9772 with a copy to: Testa, Hurwitz & Thibeault, LLP 125 High Street Boston, MA 02110 Attention: Kevin M. Barry, Esq. (y) if to the Initial Purchaser, to: Bear, Stearns & Co. Inc. 383 Madison Avenue New York, NY 10179 Attention: Stephen Parish Facsimile: (212) 272-3485 or to such other address as such person may have furnished to the other persons identified in this Section 8(c) in writing in accordance herewith. 16 (d) Parties in Interest. The parties to this Agreement intend that all Holders of Registrable Securities shall be entitled to receive the benefits of this Agreement and that any Notice Holder shall be bound by the terms and provisions of this Agreement by reason of such election with respect to the Registrable Securities which are included in a Shelf Registration Statement. All the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the respective successors and assigns of the parties hereto and any Holder from time to time of the Registrable Securities to the aforesaid extent. In the event that any transferee of any Holder of Registrable Securities shall acquire Registrable Securities, in any manner, whether by gift, bequest, purchase, operation of law or otherwise, such transferee shall, without any further writing or action of any kind, be entitled to receive the benefits of and, if a Notice Holder, be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement to the aforesaid extent. (e) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (f) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (g) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. (h) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired or affected thereby, it being intended that all of the rights and privileges of the parties hereto shall be enforceable to the fullest extent permitted by law. (i) Survival. The respective indemnities, agreements, representations, warranties and other provisions set forth in this Agreement or made pursuant hereto shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Notice Holder, any director, officer or partner of such Holder, any agent or underwriter, any director, officer or partner of such agent or underwriter, or any controlling person of any of the foregoing, and shall survive the transfer and registration of the Registrable Securities of such Holder. 9. Submission to Jurisdiction; Appointment of Agent for Service. The Company agrees that any suit, action or proceeding against the Company arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any state or federal court in The City of New York, New York, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Company expressly accepts the non-exclusive jurisdiction of any such court in respect of any 17 such suit, action or proceeding. The Company agrees that a final judgment in any such proceeding brought in any such court shall be conclusive and binding thereupon and may be enforced in any other court in the jurisdiction to which the Company is or may be subject by suit upon such judgment. 18 Please confirm that the foregoing correctly sets forth the agreement between the Company and you. Very truly yours, Concord Communications, Inc. By: /s/ Melissa H. Cruz ------------------------------- Name: Melissa H. Cruz Title: Executive Vice President of Business Services, Chief Financial Officer and Treasurer Accepted as of the date hereof: Bear, Stearns & Co. Inc. By: /s/ Stephen Parish ------------------------------------- Name: Stephen Parish Title: Senior Managing Director 19 APPENDIX A CONCORD COMMUNICATIONS, INC. FORM OF NOTICE OF REGISTRATION STATEMENT AND SELLING SECURITYHOLDER ELECTION AND QUESTIONNAIRE 3.0% CONVERTIBLE SENIOR NOTES DUE 2023 NOTICE Concord Communications, Inc. (the "Company") has filed, or intends shortly to file, with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 or such other Form as may be available (the "Shelf Registration Statement") for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"), of the Company's Convertible Senior Notes due 2023 (CUSIP No. 206186AA6) (the "Notes"), and common stock, par value $0.01 per share, issuable upon conversion thereof (the "Shares" and together with the Notes, the "Transfer Restricted Securities") in accordance with the terms of the Registration Rights Agreement, dated as of December 8, 2003 (the "Registration Rights Agreement") between the Company and Bear, Stearns & Co. Inc. A copy of the Registration Rights Agreement is available from the Company. All capitalized terms not otherwise defined herein have the meanings ascribed thereto in the Registration Rights Agreement. To sell or otherwise dispose of any Transfer Restricted Securities pursuant to the Shelf Registration Statement, a beneficial owner of Transfer Restricted Securities generally will be required to be named as a Selling Securityholder in the related Prospectus, deliver a Prospectus to purchasers of Transfer Restricted Securities, be subject to certain civil liability provisions of the Securities Act and be bound by those provisions of the Registration Rights Agreement applicable to such beneficial owner (including certain indemnification rights and obligations, as described below). To be included in the Shelf Registration Statement, this Election and Questionnaire must be completed, executed and delivered to the Company at the address set forth herein for receipt PRIOR TO OR ON THE 20TH CALENDAR DAY FROM THE RECEIPT HEREOF (the "Election and Questionnaire Deadline"). Beneficial Owners that do not complete and return this Election and Questionnaire prior to the Election and Questionnaire Deadline and deliver it to the Company as provided below will not be named as Selling Securityholders in the Shelf Registration Statement and, therefore, will not be permitted to sell any Transfer Restricted Securities pursuant to the Shelf Registration Statement. Certain legal consequences arise from being named as a Selling Securityholder in the Shelf Registration Statement and the related Prospectus. Accordingly, holders and beneficial owners of Transfer Restricted Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a Selling Securityholder in the Shelf Registration Statement and the related Prospectus. ELECTION The undersigned holder (the "Selling Securityholder") of Transfer Restricted Securities hereby elects to include in the Shelf Registration Statement the Transfer Restricted Securities beneficially owned by it and listed below in Item III (unless otherwise specified under Item III). The undersigned, by signing and returning this Election and Questionnaire, understands that it will be bound with respect to such Transfer Restricted Securities by the terms and conditions of this Election and Questionnaire and the Registration Rights Agreement. Pursuant to the Registration Rights Agreement, the Selling Securityholder has agreed to indemnify and hold harmless the Company, the Company's directors, the Company's officers, employees, representatives and agents and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against certain losses arising in connection with statements concerning the Selling Securityholder made in the Shelf Registration Statement or the related Prospectus in reliance upon the information provided in this Election and Questionnaire. The Selling Securityholder hereby provides the following information to the Company and represents and warrants that such information is accurate and complete: QUESTIONNAIRE I. A. Full Legal Name of Selling Securityholder: _______________________________________________________________________________ A-1 B. Full legal name of registered holder (if not the same as (a) above) through which Transfer Restricted Securities listed in (3) below are held: _______________________________________________________________________________ C. Full legal name of DTC participant (if applicable and if not the same as (b) above) through which Transfer Restricted Securities listed in Item III are held: _______________________________________________________________________________ II. Address for notices to Selling Securityholders: _______________________________________________________________________________ _______________________________________________________________________________ Telephone: ___________________________ Fax: ___________________________ Contact Person: ___________________________ III. Beneficial ownership of Transfer Restricted Securities: A. Type of Transfer Restricted Securities beneficially owned, and principal amount of Notes or number of shares of Common Stock, as the case may be, beneficially owned: _______________________________________________________________________ B. CUSIP No(s). of such Transfer Restricted Securities beneficially owned: _______________________________________________________________________ C. Amount of Transfer Restricted Securities that the undersigned wishes to be included in the Shelf Registration Statement: _______________________________________________________________________ IV. Beneficial ownership of the Company's securities owned by the Selling Securityholder: EXCEPT AS SET FORTH BELOW IN THIS ITEM IV, THE UNDERSIGNED IS NOT THE BENEFICIAL OR REGISTERED OWNER OF ANY SECURITIES OF THE COMPANY OTHER THAN THE TRANSFER RESTRICTED SECURITIES LISTED ABOVE IN ITEM III ("Other Securities"). A. Type and amount of Other Securities beneficially owned by the Selling Securityholder: _______________________________________________________________________ B. CUSIP No(s). of such Other Securities beneficially owned: _______________________________________________________________________ V. Relationship with the Company: A-2 Except as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (5% or more) has held any position or office or has had any other material relationship with the Company (or their predecessors or affiliates) during the past three years. State any exception here: _______________________________________________________________________________ VI. Plan of Distribution: Except as set forth below, the undersigned (including its donees or pledgees) intends to distribute the Transfer Restricted Securities listed above in Item III pursuant to the Shelf Registration Statement only as follows (if at all). Such Transfer Restricted Securities may be sold from time to time directly by the undersigned or, alternatively, through underwriters, broker-dealers or agents. If the Transfer Restricted Securities are sold through underwriters or broker-dealers, the Selling Securityholder will be responsible for underwriting discounts or commissions or agent's commissions. Such Transfer Restricted Securities may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of sale, at varying prices determined at the time of sale, or at negotiated prices. Such sales may be effected in transactions (which may involve crosses or block transactions): 1. on any national securities exchange or quotation service on which the Transfer Restricted Securities may be listed or quoted at the time of sale; 2. in the over-the-counter market; 3. in transactions otherwise than on such exchanges or services or in the over-the-counter market; or 4. through the writing of options. In connection with sales of the Transfer Restricted Securities or otherwise, the undersigned may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the Transfer Restricted Securities and deliver Transfer Restricted Securities to close out such short positions, or loan or pledge Transfer Restricted Securities to broker-dealers that in turn may sell such securities. State any exceptions here: _______________________________________________________________________________ _______________________________________________________________________________ Note: In no event will such method(s) of distribution take the form of an underwritten offering of the Transfer Restricted Securities without the prior agreement of the Company. By signing below, the Selling Securityholder acknowledges that it understands its obligation to comply, and agrees it will comply, with the prospectus delivery requirements and other provisions of the Securities Act and Exchange Act and the respective rules and regulations promulgated thereunder, particularly Regulation M thereunder (or any successor rules or regulations), in connection with any offering of Transfer Restricted Securities pursuant to the Shelf Registration Statement. If the Selling Securityholder transfers all or any portion of the Transfer Restricted Securities listed in Item III above after the date on which such information is provided to the Company, the Selling Securityholder agrees to notify the transferee(s) at the time of the transfer of its rights and obligations under this Election and Questionnaire and the Registration Rights Agreement and agrees to deliver a notice of such transfer, in substantially the form attached as Exhibit 1 to this Election and Questionnaire, to the Trustee and the Company. By signing below, the Selling Securityholder consents to the disclosure of the information contained herein in its answers to Items I through VI above and the inclusion of such information in the Shelf Registration Statement and the related Prospectus. The Selling Securityholder understands that such information will be relied upon by the Company in connection with the preparation or amendment of the Shelf Registration Statement and the related Prospectus. A-3 In accordance with the Selling Securityholder's obligation under the Registration Rights Agreement to provide such information as may be required by law for inclusion in the Shelf Registration Statement, the Selling Securityholder agrees to promptly notify the Company of any inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof at any time while the Shelf Registration Statement remains effective. All notices hereunder and pursuant to the Registration Rights Agreement shall be made in writing at the address set forth below. Once this Election and Questionnaire is executed by the Selling Securityholders and received by the Company, the terms of this Election and Questionnaire and the representations and warranties contained herein shall be binding on, shall inure to the benefit of and shall be enforceable by the respective successors, heirs, personal representatives and assigns of the Company and the Selling Securityholder with respect to the Transfer Restricted Securities beneficially owned by such Selling Securityholder and listed in Item III above. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without regard to the conflicts-of-laws provisions thereof. A-4 IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Election and Questionnaire to be executed and delivered either in person or by its authorized agent. Dated: Beneficial Owner By: _______________________________ Name: Title: Please return the completed and executed Election and Questionnaire for receipt PRIOR TO OR ON THE 20TH CALENDAR DAY FROM RECEIPT HEREOF to: Concord Communications, Inc. at: 600 Nickerson Road Marlboro, Massachusetts 01752 Attention: Chief Financial Officer with a copy to: Testa, Hurwitz & Thibeault, LLP 125 High Street Boston, MA 02110 Attention: Paul L. Manias, Esq. A-5 APPENDIX A EXHIBIT 1 TO ELECTION AND QUESTIONNAIRE NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT Concord Communications, Inc. 600 Nickerson Road Marlboro, MA 01752 Re: Concord Communications, Inc.'s Convertible Senior Notes due ________, 2023 (the "Notes") Dear Sirs: Please be advised that __________ has transferred $_________ aggregate principal amount of the above-referenced Notes or ________ shares of the Company's common stock issued on conversion or repurchase of Notes, pursuant to the Registration Statement on Form S-3 (File No. 333-________) filed by the Company. We hereby certify that the prospectus delivery requirements, if any, of the Securities Act of 1933, as amended, have been satisfied with respect to the transfer described above and that the above named beneficial owner of the Notes or common stock is named as a selling securityholder in the Prospectus dated ___________, or in amendments or supplements thereto, and that the aggregate principal amount of the Notes or number of shares of common stock transferred are [all or a portion of] the Notes or common stock listed in such Prospectus, as amended or supplemented, opposite such owner's name. Very truly yours, [name] By:____________________________ (Authorized Signature) Dated:__________________ EX-5.1 5 b49087coexv5w1.txt EX-5.1 OPINION OF TESTA, HURWITZ & THIBEAULT, LLP EXHIBIT 5.1 January 22, 2004 Concord Communications, Inc. 600 Nickerson Road Marlboro, Massachusetts 01752 Re: S-3 Registration Statement Ladies and Gentlemen: We are counsel to Concord Communications, Inc., a Massachusetts corporation (the "Company"), and have represented the Company in connection with the preparation and filing of the Company's Registration Statement on Form S-3 (the "Registration Statement"), relating to the registration under the Securities Act of 1933, as amended, of $86,250,000 aggregate principal amount of 3.0% Convertible Senior Notes due 2023 (the "Notes") and shares of the Company's Common Stock, par value $0.01 per share, issuable upon conversion of the Notes (the "Conversion Shares") to be sold by certain securityholders listed in the Registration Statement (the "Selling Securityholders"). We have reviewed the corporate proceedings taken by the Board of Directors of the Company with respect to the authorization and issuance of the Notes and the Conversion Shares. We have also examined and relied upon originals or copies, certified or otherwise authenticated to our satisfaction, of all corporate records, documents, agreements or other instruments of the Company and have made all investigations of law and have discussed with the Company's officers all questions of fact that we have deemed necessary or appropriate. Based upon and subject to the foregoing, we are of the opinion that (1) the Notes, when sold by the Selling Securityholders in the number described in the Registration Statement, will be legally and validly issued and will represent binding obligations of the Company and (2) the Conversion Shares, when sold by the Selling Securityholders in the manner described in the Registration Statement, will be legally and validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to our firm in the Prospectus contained in the Registration Statement under the caption "Legal Matters." Very truly yours, /s/ Testa, Hurwitz & Thibeault, LLP TESTA, HURWITZ & THIBEAULT, LLP EX-12.1 6 b49087coexv12w1.txt EX-12.1 COMP. OF RATIO OF EARNINGS TO FXD CHARGES EXHIBIT 12.1 RATIO OF EARNINGS TO FIXED CHARGES Set forth below is information concerning our ratio of earnings to fixed charges on a consolidated basis for the period indicated. This ratio shows the extent to which our business generates enough earnings after the payment of all expenses other than interest to make the required interest payments on the notes. For the purposes of computing the ratios of earnings to fixed charges, "earnings" consist of income before taxes and fixed charges. "Fixed charges" consist of interest on all indebtedness and an interest factor attributable to rentals.

Nine Months Ended Fiscal Year Ended December 31, September 30, ------------------------------------------------------------------ 1998 1999 2000 2001 2002 2002 2003 ------------------------------------------------------------------ (in thousands, except for ratios) FIXED CHARGES: Interest expensed ..................................... 28 325 34 -- 17 -- 20 Estimate of interest within rental expenses ........... 254 901 921 1,451 1,512 1,097 1,318 ------------------------------------------------------------------ Total Fixed Charges ................................ 282 1,226 955 1,451 1,529 1,097 1,338 ------------------------------------------------------------------ EARNINGS Pre-tax gain (loss) from continuing operations ........ 2,769 (10,107) 1,501 10,481 5,114 1,823 2,870 Fixed charges ......................................... 282 1,226 955 1,451 1,529 1,097 1,338 ------------------------------------------------------------------ Total earnings (loss) for computation of ratio ..... 3,051 (9,481) 2,456 11,932 6,643 2,920 4,208 ------------------------------------------------------------------ RATIO OF EARNINGS TO FIXED CHARGES .................... 10.8 -- (A) 2.6 8.2 4.3 2.8 3.1

(A) The pre-tax loss from continuing operations for the year ended December 31, 1999 is not sufficient to cover fixed charges by a total of approximately $10.7 million. As a result, the ratio of earnings to fixed charges has not been computed for this period. EX-23.1 7 b49087coexv23w1.txt EX-23.1 CONSENT OF PRICEWATERHOUSE COOPERS LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated January 15, 2003 relating to the financial statements, which appears in Concord Communications, Inc.'s Annual Report on Form 10-K as of and for the year ended December 31, 2002. We also consent to the reference to us under the headings "Experts" in such Registration Statement. /s/ PricewaterhouseCoopers LLP - ------------------------------ PRICEWATERHOUSECOOPERS LLP Boston, Massachusetts January 22, 2004 EX-25.1 8 b49087coexv25w1.txt EX-25.1 ELIGIBILITY OF TRUSTEE ON FORM T-1 EXHIBIT 25.1 REGISTRATION NO. ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) WILMINGTON TRUST COMPANY (Exact name of Trustee as specified in its charter) DELAWARE 51-0055023 (State or other jurisdiction or (I.R.S. Employer Identification No.) incorporation or organization) RODNEY SQUARE NORTH 1100 NORTH MARKET STREET WILMINGTON, DELAWARE 19890 (Address of principal executive offices) CYNTHIA L. CORLISS VICE PRESIDENT AND TRUST COUNSEL WILMINGTON TRUST COMPANY RODNEY SQUARE NORTH WILMINGTON, DELAWARE 19890 (302) 651-8516 (Name, address, including zip code, and telephone number, including area code, of agent of service) CONCORD COMMUNICATIONS, INC. (Exact name of registrants as specified in its charter) MASSACHUSETTS 04-2710876 (State or other jurisdiction or (I.R.S. Employer Identification No.) incorporation or organization) 600 NICKERSON ROAD MARLBORO, MASSACHUSETTS 01752 (Address principal executive offices) JOHN A. BLAESER PRESIDENT AND CHIEF EXECUTIVE OFFICER CONCORD COMMUNICATIONS, INC. 600 NICKERSON ROAD MARLBORO, MASSACHUSETTS 01752 (508) 460-4646 (Name, address, including zip code, and telephone number, including area code, of agent of service) COPIES OF ALL COMMUNICATIONS, INCLUDING ALL COMMUNICATIONS SENT TO THE AGENT FOR SERVICE, SHOULD BE SENT TO: KEVIN M. BARRY, ESQ. TESTA, HURWITZ & THIBEAULT, LLP 125 HIGH STREET BOSTON, MASSACHUSETTS 02110 (617) 248-7000 3.0% CONVERTIBLE SENIOR NOTES DUE 2023 (Title of the Indenture Securities) ================================================================================ ITEM 1. GENERAL INFORMATION. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Federal Deposit Insurance Co. State Bank Commissioner Five Penn Center Dover, Delaware Suite #2901 Philadelphia, PA (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. ITEM 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the trustee, describe each affiliation: Based upon an examination of the books and records of the trustee and upon information furnished by the obligor, the obligor is not an affiliate of the trustee. ITEM 16. LIST OF EXHIBITS. List below all exhibits filed as part of this Statement of Eligibility and Qualification. A. Copy of the Charter of Wilmington Trust Company, which includes the certificate of authority of Wilmington Trust Company to commence business and the authorization of Wilmington Trust Company to exercise corporate trust powers. B. Copy of By-Laws of Wilmington Trust Company. C. Consent of Wilmington Trust Company required by Section 321(b) of Trust Indenture Act. D. Copy of most recent Report of Condition of Wilmington Trust Company. Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust Company, a corporation organized and existing under the laws of Delaware, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 30th day of December, 2003. WILMINGTON TRUST COMPANY [SEAL] Attest: /s/ Kristin F. Long By: /s/ Bruce L. Bisson -------------------------------- ------------------- Assistant Secretary Name: Bruce L. Bisson Title: Vice President EXHIBIT A AMENDED CHARTER WILMINGTON TRUST COMPANY WILMINGTON, DELAWARE AS EXISTING ON MAY 9, 1987 EXHIBIT 25.1 REGISTRATION NO. AMENDED CHARTER OR ACT OF INCORPORATION OF WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act of Incorporation of which company has been from time to time amended and changed by merger agreements pursuant to the corporation law for state banks and trust companies of the State of Delaware, does hereby alter and amend its Charter or Act of Incorporation so that the same as so altered and amended shall in its entirety read as follows: FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY. SECOND: - The location of its principal office in the State of Delaware is at Rodney Square North, in the City of Wilmington, County of New Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose address is Rodney Square North, in said City. In addition to such principal office, the said corporation maintains and operates branch offices in the City of Newark, New Castle County, Delaware, the Town of Newport, New Castle County, Delaware, at Claymont, New Castle County, Delaware, at Greenville, New Castle County Delaware, and at Milford Cross Roads, New Castle County, Delaware, and shall be empowered to open, maintain and operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the City of Wilmington, New Castle County, Delaware, and such other branch offices or places of business as may be authorized from time to time by the agency or agencies of the government of the State of Delaware empowered to confer such authority. THIRD: - (a) The nature of the business and the objects and purposes proposed to be transacted, promoted or carried on by this Corporation are to do any or all of the things herein mentioned as fully and to the same extent as natural persons might or could do and in any part of the world, viz.: (1) To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created. (2) To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere. (3) To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business. (4) To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches. (5) To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property. (6) To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality. (7) To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations. (8) To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere. (9) To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment. (10) And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation. (11) To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital 2 stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein. (b) In furtherance of, and not in limitation, of the powers conferred by the laws of the State of Delaware, it is hereby expressly provided that the said Corporation shall also have the following powers: (1) To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world. (2) To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business. (3) To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated. (4) To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments. (5) To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place. (6) It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers. FOURTH: - (a) The total number of shares of all classes of stock which the Corporation shall have authority to issue is forty-one million (41,000,000) shares, consisting of: (1) One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as "Preferred Stock"); and (2) Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as "Common Stock"). 3 (b) Shares of Preferred Stock may be issued from time to time in one or more series as may from time to time be determined by the Board of Directors each of said series to be distinctly designated. All shares of any one series of Preferred Stock shall be alike in every particular, except that there may be different dates from which dividends, if any, thereon shall be cumulative, if made cumulative. The voting powers and the preferences and relative, participating, optional and other special rights of each such series, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding; and, subject to the provisions of subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of Directors of the Corporation is hereby expressly granted authority to fix by resolution or resolutions adopted prior to the issuance of any shares of a particular series of Preferred Stock, the voting powers and the designations, preferences and relative, optional and other special rights, and the qualifications, limitations and restrictions of such series, including, but without limiting the generality of the foregoing, the following: (1) The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors; (2) The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of stock and whether such dividends shall be cumulative or non-cumulative; (3) The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange; (4) Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed. (5) The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation. (6) The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and (7) The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine. (c) (1) After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article FOURTH), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article FOURTH), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article FOURTH, then and not otherwise the 4 holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors. (2) After distribution in full of the preferential amount, if any, (fixed in accordance with the provisions of section (b) of this Article FOURTH), to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up, of the Corporation, the holders of the Common Stock shall be entitled to receive all of the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders ratably in proportion to the number of shares of Common Stock held by them respectively. (3) Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article FOURTH, each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders. (d) No holder of any of the shares of any class or series of stock or of options, warrants or other rights to purchase shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of the Corporation of any class or series, or carrying any right to purchase stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, whether such holders or others, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. (e) The relative powers, preferences and rights of each series of Preferred Stock in relation to the relative powers, preferences and rights of each other series of Preferred Stock shall, in each case, be as fixed from time to time by the Board of Directors in the resolution or resolutions adopted pursuant to authority granted in section (b) of this Article FOURTH and the consent, by class or series vote or otherwise, of the holders of such of the series of Preferred Stock as are from time to time outstanding shall not be required for the issuance by the Board of Directors of any other series of Preferred Stock whether or not the powers, preferences and rights of such other series shall be fixed by the Board of Directors as senior to, or on a parity with, the powers, preferences and rights of such outstanding series, or any of them; provided, however, that the Board of Directors may provide in the resolution or resolutions as to any series of Preferred Stock adopted pursuant to section (b) of this Article FOURTH that the consent of the holders of a majority (or such greater proportion as shall be therein fixed) of the outstanding shares of such series voting thereon shall be required for the issuance of any or all other series of Preferred Stock. (f) Subject to the provisions of section (e), shares of any series of Preferred Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. (g) Shares of Common Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. (h) The authorized amount of shares of Common Stock and of Preferred Stock may, without a class or series vote, be increased or decreased from time to time by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote thereon. 5 FIFTH: - (a) The business and affairs of the Corporation shall be conducted and managed by a Board of Directors. The number of directors constituting the entire Board shall be not less than five nor more than twenty-five as fixed from time to time by vote of a majority of the whole Board, provided, however, that the number of directors shall not be reduced so as to shorten the term of any director at the time in office, and provided further, that the number of directors constituting the whole Board shall be twenty-four until otherwise fixed by a majority of the whole Board. (b) The Board of Directors shall be divided into three classes, as nearly equal in number as the then total number of directors constituting the whole Board permits, with the term of office of one class expiring each year. At the annual meeting of stockholders in 1982, directors of the first class shall be elected to hold office for a term expiring at the next succeeding annual meeting, directors of the second class shall be elected to hold office for a term expiring at the second succeeding annual meeting and directors of the third class shall be elected to hold office for a term expiring at the third succeeding annual meeting. Any vacancies in the Board of Directors for any reason, and any newly created directorships resulting from any increase in the directors, may be filled by the Board of Directors, acting by a majority of the directors then in office, although less than a quorum, and any directors so chosen shall hold office until the next annual election of directors. At such election, the stockholders shall elect a successor to such director to hold office until the next election of the class for which such director shall have been chosen and until his successor shall be elected and qualified. No decrease in the number of directors shall shorten the term of any incumbent director. (c) Notwithstanding any other provisions of this Charter or Act of Incorporation or the By-Laws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, this Charter or Act of Incorporation or the By-Laws of the Corporation), any director or the entire Board of Directors of the Corporation may be removed at any time without cause, but only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose. (d) Nominations for the election of directors may be made by the Board of Directors or by any stockholder entitled to vote for the election of directors. Such nominations shall be made by notice in writing, delivered or mailed by first class United States mail, postage prepaid, to the Secretary of the Corporation not less than 14 days nor more than 50 days prior to any meeting of the stockholders called for the election of directors; provided, however, that if less than 21 days' notice of the meeting is given to stockholders, such written notice shall be delivered or mailed, as prescribed, to the Secretary of the Corporation not later than the close of the seventh day following the day on which notice of the meeting was mailed to stockholders. Notice of nominations which are proposed by the Board of Directors shall be given by the Chairman on behalf of the Board. (e) Each notice under subsection (d) shall set forth (i) the name, age, business address and, if known, residence address of each nominee proposed in such notice, (ii) the principal occupation or employment of such nominee and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee. (f) The Chairman of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. (g) No action required to be taken or which may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied. 6 SIXTH: - The Directors shall choose such officers, agents and servants as may be provided in the By-Laws as they may from time to time find necessary or proper. SEVENTH: - The Corporation hereby created is hereby given the same powers, rights and privileges as may be conferred upon corporations organized under the Act entitled "An Act Providing a General Corporation Law", approved March 10, 1899, as from time to time amended. EIGHTH: - This Act shall be deemed and taken to be a private Act. NINTH: - This Corporation is to have perpetual existence. TENTH: - The Board of Directors, by resolution passed by a majority of the whole Board, may designate any of their number to constitute an Executive Committee, which Committee, to the extent provided in said resolution, or in the By-Laws of the Company, shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, and shall have power to authorize the seal of the Corporation to be affixed to all papers which may require it. ELEVENTH: - The private property of the stockholders shall not be liable for the payment of corporate debts to any extent whatever. TWELFTH: - The Corporation may transact business in any part of the world. THIRTEENTH: - The Board of Directors of the Corporation is expressly authorized to make, alter or repeal the By-Laws of the Corporation by a vote of the majority of the entire Board. The stockholders may make, alter or repeal any By-Law whether or not adopted by them, provided however, that any such additional By-Laws, alterations or repeal may be adopted only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class). FOURTEENTH: - Meetings of the Directors may be held outside of the State of Delaware at such places as may be from time to time designated by the Board, and the Directors may keep the books of the Company outside of the State of Delaware at such places as may be from time to time designated by them. FIFTEENTH: - (a) (1) In addition to any affirmative vote required by law, and except as otherwise expressly provided in sections (b) and (c) of this Article FIFTEENTH: (A) any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or (B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or (C) the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or 7 (D) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or (E) any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder, shall require the affirmative vote of the holders of at least two-thirds of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, considered for the purpose of this Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that some lesser percentage may be specified, by law or in any agreement with any national securities exchange or otherwise. (2) The term "business combination" as used in this Article FIFTEENTH shall mean any transaction which is referred to in any one or more of clauses (A) through (E) of paragraph 1 of the section (a). (b) The provisions of section (a) of this Article FIFTEENTH shall not be applicable to any particular business combination and such business combination shall require only such affirmative vote as is required by law and any other provisions of the Charter or Act of Incorporation or By-Laws if such business combination has been approved by a majority of the whole Board. (c) For the purposes of this Article FIFTEENTH: (1) A "person" shall mean any individual, firm, corporation or other entity. (2) "Interested Stockholder" shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on such business combination, or immediately prior to the consummation of any such transaction: (A) is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or (B) is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or (C) is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. (3) A person shall be the "beneficial owner" of any Voting Shares: (A) which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or 8 (B) which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or (C) which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of capital stock of the Corporation. (4) The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise. (5) "Affiliate" and "Associate" shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981. (6) "Subsidiary" shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term "Subsidiary" shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. (d) majority of the directors shall have the power and duty to determine for the purposes of this Article FIFTEENTH on the basis of information known to them, (1) the number of Voting Shares beneficially owned by any person (2) whether a person is an Affiliate or Associate of another, (3) whether a person has an agreement, arrangement or understanding with another as to the matters referred to in paragraph (3) of section (c), or (4) whether the assets subject to any business combination or the consideration received for the issuance or transfer of securities by the Corporation, or any Subsidiary has an aggregate fair market value of $1,000,000 or more. (e) Nothing contained in this Article FIFTEENTH shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law. SIXTEENTH: Notwithstanding any other provision of this Charter or Act of Incorporation or the By-Laws of the Corporation (and in addition to any other vote that may be required by law, this Charter or Act of Incorporation by the By-Laws), the affirmative vote of the holders of at least two-thirds of the outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) shall be required to amend, alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or Act of Incorporation. SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Laws as the same exists or may hereafter be amended. (b) Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a Director of the Corporation existing hereunder with respect to any act or omission occurring prior to the time of such repeal or modification." 9 EXHIBIT B BY-LAWS WILMINGTON TRUST COMPANY WILMINGTON, DELAWARE AS EXISTING ON JANUARY 16, 2003 EXHIBIT 25.1 REGISTRATION NO. BY-LAWS OF WILMINGTON TRUST COMPANY ARTICLE I STOCKHOLDERS' MEETINGS Section 1. Annual Meeting. The annual meeting of stockholders shall be held on the third Thursday in April each year at the principal office at the Company or at such other date, time or place as may be designated by resolution by the Board of Directors. Section 2. Special Meetings. Special meetings of stockholders may be called at any time by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President. Section 3. Notice. Notice of all meetings of the stockholders shall be given by mailing to each stockholder at least ten (10) days before said meeting, at his last known address, a written or printed notice fixing the time and place of such meeting. Section 4. Quorum. A majority in the amount of the capital stock of the Company issued and outstanding on the record date, as herein determined, shall constitute a quorum at all meetings of stockholders for the transaction of any business, but the holders of a smaller number of shares may adjourn from time to time, without further notice, until a quorum is secured. At each annual or special meeting of stockholders, each stockholder shall be entitled to one vote, either in person or by proxy, for each share of stock registered in the stockholder's name on the books of the Company on the record date for any such meeting as determined herein. ARTICLE 2 DIRECTORS Section 1. Management. The affairs and business of the Company shall be managed by or under the direction of the Board of Directors. Section 2. Number. The authorized number of directors that shall constitute the Board of Directors shall be fixed from time to time by or pursuant to a resolution passed by a majority of the Board of Directors within the parameters set by the Charter of the Company. No more than two directors may also be employees of the Company or any affiliate thereof. Section 3. Qualification. In addition to any other provisions of these Bylaws, to be qualified for nomination for election or appointment to the Board of Directors, a person must have not attained the age of sixty-nine years at the time of such election or appointment, provided however, the Nominating and Corporate Governance Committee may waive such qualification as to a particular candidate otherwise qualified to serve as a director upon a good faith determination by such committee that such a waiver is in the best interests of the Company and its stockholders. The Chairman of the Board and the Chief Executive Officer shall not be qualified to continue to serve as directors upon the termination of their service in those offices for any reason. Section 4. Meetings. The Board of Directors shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members, or at the call of the Chairman of the Board of Directors, the Chief Executive Officer or the President. Section 5. Special Meetings. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board, the Chief Executive Officer or the President, and shall be called upon the written request of a majority of the directors. Section 6. Quorum. A majority of the directors elected and qualified shall be necessary to constitute a quorum for the transaction of business at any meeting of the Board of Directors. Section 7. Notice. Written notice shall be sent by mail to each director of any special meeting of the Board of Directors, and of any change in the time or place of any regular meeting, stating the time and place of such meeting, which shall be mailed not less than two days before the time of holding such meeting. Section 8. Vacancies. In the event of the death, resignation, removal, inability to act or disqualification of any director, the Board of Directors, although less than a quorum, shall have the right to elect the successor who shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred, and until such director's successor shall have been duly elected and qualified. Section 9. Organization Meeting. The Board of Directors at its first meeting after its election by the stockholders shall appoint an Executive Committee, an Audit Committee, a Compensation Committee and a Nominating and Corporate Governance Committee, and shall elect from its own members a Chairman of the Board, a Chief Executive Officer and a President, who may be the same person. The Board of Directors shall also elect at such meeting a Secretary and a Chief Financial Officer, who may be the same person, and may appoint at any time such committees as it may deem advisable. The Board of Directors may also elect at such meeting one or more Associate Directors. The Board of Directors, the Executive Committee or another committee designated by the Board of Directors may elect or appoint such other officers as they may deem advisable. Section 10. Removal. The Board of Directors may at any time remove, with or without cause, any member of any committee appointed by it or any associate director or officer elected by it and may appoint or elect his successor. Section 11. Responsibility of Officers. The Board of Directors may designate an officer to be in charge of such departments or divisions of the Company as it may deem advisable. Section 12. Participation in Meetings. The Board of Directors or any committee of the Board of Directors may participate in a meeting of the Board of Directors or such committee, as the case may be, by conference telephone, video facilities or other communications equipment. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all of the members of the Board of Directors or the committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of the Board of Directors or such committee. ARTICLE 3 COMMITTEES OF THE BOARD OF DIRECTORS Section 1. Executive Committee. (A) The Executive Committee shall be composed of not more than nine (9) members, who shall be selected by the Board of Directors from its own members, and who shall hold office at the pleasure of the Board of Directors. (B) The Executive Committee shall have and may exercise, to the fullest extent permitted by law, all of the powers of the Board of Directors when it is not in session to transact all business for and on behalf of the Company that may be brought before it. (C) The Executive Committee shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members, or at the call of the Chairman of the 2 Executive Committee, the Chairman of the Board, the Chief Executive Officer or the President. The majority of its members shall be necessary to constitute a quorum for the transaction of business. Special meetings of the Executive Committee may be held at any time when a quorum is present. (D) Minutes of each meeting of the Executive Committee shall be kept and submitted to the Board of Directors at its next meeting. (E) In the event of an emergency of sufficient severity to prevent the conduct and management of the affairs and business of the Company by its directors and officers as contemplated by these Bylaws, any two available members of the Executive Committee as constituted immediately prior to such emergency shall constitute a quorum of that Committee for the full conduct and management of the affairs and business of the Company in accordance with the provisions of Article 3 of these Bylaws. In the event of the unavailability, at such time, of a minimum of two members of the Executive Committee, any three available directors shall constitute the Executive Committee for the full conduct and management of the affairs and business of the Company in accordance with the foregoing provisions of this Section. This Bylaw shall be subject to implementation by resolutions of the Board of Directors presently existing or hereafter passed from time to time for that purpose, and any provisions of these Bylaws (other than this Section) and any resolutions which are contrary to the provisions of this Section or to the provisions of any such implementing resolutions shall be suspended during such a disaster period until it shall be determined by any interim Executive Committee acting under this Section that it shall be to the advantage of the Company to resume the conduct and management of its affairs and business under all of the other provisions of these Bylaws. Section 2. Audit Committee. (A) The Audit Committee shall be composed of not more than five (5) members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board. (B) The Audit Committee shall have general supervision over the Audit Services Division in all matters however subject to the approval of the Board of Directors; it shall consider all matters brought to its attention by the officer in charge of the Audit Services Division, review all reports of examination of the Company made by any governmental agency or such independent auditor employed for that purpose, and make such recommendations to the Board of Directors with respect thereto or with respect to any other matters pertaining to auditing the Company as it shall deem desirable. (C) The Audit Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President or a majority of the Committee's members shall deem it to be proper for the transaction of its business. A majority of the Committee's members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee. Section 3. Compensation Committee. (A) The Compensation Committee shall be composed of not more than five (5) members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board of Directors. (B) The Compensation Committee shall in general advise upon all matters of policy concerning compensation, including salaries and employee benefits. (C) The Compensation Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President or a majority of the Committee's members shall deem it to be proper for the transaction of its business. A majority of the Committee's members shall constitute a 3 quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee. Section 4. Nominating and Corporate Governance Committee. (A) The Nominating and Corporate Governance Committee shall be composed of not more than five members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board of Directors. (B) The Nominating and Corporate Governance Committee shall provide counsel and make recommendations to the Chairman of the Board and the full Board with respect to the performance of the Chairman of the Board and the Chief Executive Officer, candidates for membership on the Board of Directors and its committees, matters of corporate governance, succession planning for the Company's executive management and significant shareholder relations issues. (C) The Nominating and Corporate Governance Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President, or a majority of the Committee's members shall deem it to be proper for the transaction of its business. A majority of the Committee's members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee. Section 5. Other Committees. The Company may have such other committees with such powers as the Board may designate from time to time by resolution or by an amendment to these Bylaws. Section 6. Associate Directors. (A) Any person who has served as a director may be elected by the Board of Directors as an associate director, to serve at the pleasure of the Board of Directors. (B) Associate directors shall be entitled to attend all meetings of directors and participate in the discussion of all matters brought to the Board of Directors, but will not have a right to vote. Section 7. Absence or Disqualification of Any Member of a Committee. In the absence or disqualification of any member of any committee created under Article III of these Bylaws, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. ARTICLE 4 OFFICERS Section 1. Chairman of the Board. The Chairman of the Board shall preside at all meetings of the Board of Directors and shall have such further authority and powers and shall perform such duties the Board of Directors may assign to him from time to time. Section 2. Chief Executive Officer. The Chief Executive Officer shall have the powers and duties pertaining to the office of Chief Executive Officer conferred or imposed upon him by statute, incident to his office or as the Board of Directors may assign to him from time to time. In the absence of the Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. Section 3. President. The President shall have the powers and duties pertaining to the office of the President conferred or imposed upon him by statute, incident to his office or as the Board of Directors may assign to 4 him from time to time. In the absence of the Chairman of the Board and the Chief Executive Officer, the President shall have the powers and duties of the Chairman of the Board. Section 4. Duties. The Chairman of the Board, the Chief Executive Officer or the President, as designated by the Board of Directors, shall carry into effect all legal directions of the Executive Committee and of the Board of Directors and shall at all times exercise general supervision over the interest, affairs and operations of the Company and perform all duties incident to his office. Section 5. Vice Presidents. There may be one or more Vice Presidents, however denominated by the Board of Directors, who may at any time perform all of the duties of the Chairman of the Board, the Chief Executive Officer and/or the President and such other powers and duties incident to their respective offices or as the Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or the President or the officer in charge of the department or division to which they are assigned may assign to them from time to time. Section 6. Secretary. The Secretary shall attend to the giving of notice of meetings of the stockholders and the Board of Directors, as well as the committees thereof, to the keeping of accurate minutes of all such meetings, recording the same in the minute books of the Company and in general notifying the Board of Directors of material matters affecting the Company on a timely basis. In addition to the other notice requirements of these Bylaws and as may be practicable under the circumstances, all such notices shall be in writing and mailed well in advance of the scheduled date of any such meeting. He shall have custody of the corporate seal, affix the same to any documents requiring such corporate seal, attest the same and perform other duties incident to his office. Section 7. Chief Financial Officer. The Chief Financial Officer shall have general supervision over all assets and liabilities of the Company. He shall be custodian of and responsible for all monies, funds and valuables of the Company and for the keeping of proper records of the evidence of property or indebtedness and of all transactions of the Company. He shall have general supervision of the expenditures of the Company and periodically shall report to the Board of Directors the condition of the Company, and perform such other duties incident to his office or as the Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or the President may assign to him from time to time. Section 8. Controller. There may be a Controller who shall exercise general supervision over the internal operations of the Company, including accounting, and shall render to the Board of Directors or the Audit Committee at appropriate times a report relating to the general condition and internal operations of the Company and perform other duties incident to his office. There may be one or more subordinate accounting or controller officers however denominated, who may perform the duties of the Controller and such duties as may be prescribed by the Controller. Section 9. Audit Officers. The officer designated by the Board of Directors to be in charge of the Audit Services Division of the Company, with such title as the Board of Directors shall prescribe, shall report to and be directly responsible to the Audit Committee and the Board of Directors. There shall be an Auditor and there may be one or more Audit Officers, however denominated, who may perform all the duties of the Auditor and such duties as may be prescribed by the officer in charge of the Audit Services Division. Section 10. Other Officers. There may be one or more officers, subordinate in rank to all Vice Presidents with such functional titles as shall be determined from time to time by the Board of Directors, who shall ex officio hold the office of Assistant Secretary of the Company and who may perform such duties as may be prescribed by the officer in charge of the department or division to which they are assigned. 5 Section 11. Powers and Duties of Other Officers. The powers and duties of all other officers of the Company shall be those usually pertaining to their respective offices, subject to the direction of the Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or the President and the officer in charge of the department or division to which they are assigned. Section 12. Number of Offices. Any one or more offices of the Company may be held by the same person, except that (A) no individual may hold more than one of the offices of Chief Financial Officer, Controller or Audit Officer and (B) none of the Chairman of the Board, the Chief Executive Officer or the President may hold any office mentioned in Section 12(A). ARTICLE 5 STOCK AND STOCK CERTIFICATES Section 1. Transfer. Shares of stock shall be transferable on the books of the Company and a transfer book shall be kept in which all transfers of stock shall be recorded. Section 2. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the Company by the Chairman of the Board, the Chief Executive Officer or the President or a Vice President, and by the Secretary or an Assistant Secretary, of the Company, certifying the number of shares owned by him in the Company. The corporate seal affixed thereto, and any of or all the signatures on the certificate, may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Company with the same effect as if he were such officer, transfer agent or registrar at the date of issue. Duplicate certificates of stock shall be issued only upon giving such security as may be satisfactory to the Board of Directors or the Executive Committee. Section 3. Record Date. The Board of Directors is authorized to fix in advance a record date for the determination of the stockholders entitled to notice of, and to vote at, any meeting of stockholders and any adjournment thereof, or entitled to receive payment of any dividend, or to any allotment of rights, or to exercise any rights in respect of any change, conversion or exchange of capital stock, or in connection with obtaining the consent of stockholders for any purpose, which record date shall not be more than 60 nor less than 10 days preceding the date of any meeting of stockholders or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining such consent. ARTICLE 6 SEAL The corporate seal of the Company shall be in the following form: Between two concentric circles the words "Wilmington Trust Company" within the inner circle the words "Wilmington, Delaware." ARTICLE 7 FISCAL YEAR The fiscal year of the Company shall be the calendar year. 6 ARTICLE 8 EXECUTION OF INSTRUMENTS OF THE COMPANY The Chairman of the Board, the Chief Executive Officer, the President or any Vice President, however denominated by the Board of Directors, shall have full power and authority to enter into, make, sign, execute, acknowledge and/or deliver and the Secretary or any Assistant Secretary shall have full power and authority to attest and affix the corporate seal of the Company to any and all deeds, conveyances, assignments, releases, contracts, agreements, bonds, notes, mortgages and all other instruments incident to the business of this Company or in acting as executor, administrator, guardian, trustee, agent or in any other fiduciary or representative capacity by any and every method of appointment or by whatever person, corporation, court officer or authority in the State of Delaware, or elsewhere, without any specific authority, ratification, approval or confirmation by the Board of Directors or the Executive Committee, and any and all such instruments shall have the same force and validity as though expressly authorized by the Board of Directors and/or the Executive Committee. ARTICLE 9 COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES Directors and associate directors of the Company, other than salaried officers of the Company, shall be paid such reasonable honoraria or fees for attending meetings of the Board of Directors as the Board of Directors may from time to time determine. Directors and associate directors who serve as members of committees, other than salaried employees of the Company, shall be paid such reasonable honoraria or fees for services as members of committees as the Board of Directors shall from time to time determine and directors and associate directors may be authorized by the Company to perform such special services as the Board of Directors may from time to time determine in accordance with any guidelines the Board of Directors may adopt for such services, and shall be paid for such special services so performed reasonable compensation as may be determined by the Board of Directors. ARTICLE 10 INDEMNIFICATION Section 1. Persons Covered. The Company shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding") by reason of the fact that he, or a person for whom he is the legal representative, is or was a director of the Company or is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust, enterprise or non-profit entity that is not a subsidiary or affiliate of the Company, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person. The Company shall be required to indemnify such a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors. The Company may indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or threatened to be made a party or is otherwise involved in any proceeding by reason of the fact that he, or a person for whom he is the legal representative, is or was an officer, employee or agent of the Company or a director, officer, employee or agent of a subsidiary or affiliate of the Company, against all liability and loss suffered and expenses reasonably incurred by such person. The Company may indemnify any such person in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors. Section 2. Advance of Expenses. The Company shall pay the expenses incurred in defending any proceeding involving a person who is or may be indemnified pursuant to Section 1 in advance of its final disposition, 7 provided, however, that the payment of expenses incurred by such a person in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by that person to repay all amounts advanced if it should be ultimately determined that the person is not entitled to be indemnified under this Article 10 or otherwise. Section 3. Certain Rights. If a claim under this Article 10 for (A) payment of expenses or (B) indemnification by a director or person who is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust, enterprise or nonprofit entity that is not a subsidiary or affiliate of the Company, including service with respect to employee benefit plans, is not paid in full within sixty days after a written claim therefor has been received by the Company, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action, the Company shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law. Section 4. Non-Exclusive. The rights conferred on any person by this Article 10 shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Charter or Act of Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise. Section 5. Reduction of Amount. The Company's obligation, if any, to indemnify any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, joint venture, trust, enterprise or nonprofit entity. Section 6. Effect of Modification. Any amendment, repeal or modification of the foregoing provisions of this Article 10 shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such amendment, repeal or modification. ARTICLE 11 AMENDMENTS TO THE BYLAWS These Bylaws may be altered, amended or repealed, in whole or in part, and any new Bylaw or Bylaws adopted at any regular or special meeting of the Board of Directors by a vote of a majority of all the members of the Board of Directors then in office. ARTICLE 12 MISCELLANEOUS Whenever used in these Bylaws, the singular shall include the plural, the plural shall include the singular unless the context requires otherwise and the use of either gender shall include both genders. 8 EXHIBIT C SECTION 321(b) CONSENT Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust Company hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor. WILMINGTON TRUST COMPANY Dated: December 30, 2003 By: /s/ Bruce L. Bisson ------------------- Name: Bruce L. Bisson Title: Vice President EXHIBIT D NOTICE This form is intended to assist state nonmember banks and savings banks with state publication requirements. It has not been approved by any state banking authorities. Refer to your appropriate state banking authorities for your state publication requirements. REPORT OF CONDITION Consolidating domestic subsidiaries of the WILMINGTON TRUST COMPANY of WILMINGTON - ------------------------ ---------- Name of Bank City in the State of DELAWARE, at the close of business on September 30, 2003.

Thousands of dollars ASSETS Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coins.............................................. 230,570 Interest-bearing balances........................................................................ 0 Held-to-maturity securities............................................................................... 3,535 Available-for-sale securities............................................................................. 1,495,921 Federal funds sold in domestic offices.................................................................... 762,660 Securities purchased under agreements to resell........................................................... 21,100 Loans and lease financing receivables: Loans and leases held for sale .................................................................. 0 Loans and leases, net of unearned income ........................................................ 5,590,617 LESS: Allowance for loan and lease losses ....................................................... 82,006 Loans and leases, net of unearned income, allowance, and reserve................................. 5,508,611 Assets held in trading accounts........................................................................... 0 Premises and fixed assets (including capitalized leases).................................................. 142,808 Other real estate owned................................................................................... 1,605 Investments in unconsolidated subsidiaries and associated companies....................................... 2,749 Customers' liability to this bank on acceptances outstanding.............................................. 0 Intangible assets: a. Goodwill...................................................................................... 157 b. Other intangible assets....................................................................... 11,997 Other assets.............................................................................................. 168,077 Total assets.............................................................................................. 8,349,790

CONTINUED ON NEXT PAGE EXHIBIT 25.1 REGISTRATION NO. LIABILITIES Deposits: In domestic offices....................................................................................... 6,657,553 Noninterest-bearing ............................................................................. 1,437,091 Interest-bearing ................................................................................ 5,220,462 Federal funds purchased in domestic offices............................................................... 63,534 Securities sold under agreements to repurchase............................................................ 256,775 Trading liabilities (from Schedule RC-D).................................................................. 0 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases:............ 620,438 Bank's liability on acceptances executed and outstanding.................................................. 0 Subordinated notes and debentures......................................................................... 0 Other liabilities (from Schedule RC-G).................................................................... 112,978 Total liabilities......................................................................................... 7,711,278 EQUITY CAPITAL Perpetual preferred stock and related surplus............................................................. 0 Common Stock.............................................................................................. 500 Surplus (exclude all surplus related to preferred stock).................................................. 112,358 a. Retained earnings...................................................................................... 538,018 b. Accumulated other comprehensive income................................................................. (12,364) Total equity capital...................................................................................... 638,512 Total liabilities, limited-life preferred stock, and equity capital....................................... 8,349,790 GRAPHIC 9 b49087cob4908700.gif GRAPHIC begin 644 b49087cob4908700.gif M1TE&.#EA+0%!`/<````Q6@`Q8S%*8S%*:SE*:TI:V-SA&-SC&MS MC'-[C'.$E'N$E(2,G(R,I8RWM[>WM[>Y][GY^?GY^?G[^?O[^_O[^_O M]^_W]_?W]___________________________________________________ M____________________________________________________________ M____________________________________________________________ M____________________________________________________________ M____________________________________________________________ M____________________________________________________________ M____________________________________________________________ M____________________________________________________________ M____________________________________________________________ M____________________________________________________________ M____________________________________________________________ M____________________________________________________________ M____________________________________________________________ M____________________________________________________________ M_____________________RP`````+0%!```(_@!7"!Q(L*#!@P@3*ES(L*'# MAQ`C2IQ(L:+%BQ@S:MS(L:/'CR!#BAQ)LJ3)DRA3JES)LJ7+ES!CRIQ)LZ;- MFSASZMS)LZ?/GT"#"AU*M*C1HTB3*EW*M*G3IU"C2IU*M:K5JUBS:MW*M:O7 MK2;-G"I<[?%!!\42$P8,/:)C,^N.) 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EX-4.3

                                                                     EXHIBIT 4.3

                          CONCORD COMMUNICATIONS, INC.,

                                    AS ISSUER

                  --------------------------------------------

                            WILMINGTON TRUST COMPANY,
                                   AS TRUSTEE

                  --------------------------------------------

                 UP TO $86,250,000 AGGREGATE PRINCIPAL AMOUNT OF
                     3.0% CONVERTIBLE SENIOR NOTES DUE 2023

                  --------------------------------------------

                                    INDENTURE
                          DATED AS OF DECEMBER 8, 2003

                  --------------------------------------------




                                TABLE OF CONTENTS



                                                                                                        PAGE
                                                                                                     
ARTICLE I            DEFINITIONS AND INCORPORATION BY REFERENCE.....................................      1

         Section 1.1.       Definitions.............................................................      1

         Section 1.2.       Incorporation by Reference of Trust Indenture Act.......................      9

         Section 1.3.       Rules of Construction...................................................     10

         Section 1.4.       Acts of Holders.........................................................     10

ARTICLE II           THE SECURITIES.................................................................     11

         Section 2.1.       Form and Dating.........................................................     11

         Section 2.2.       Execution and Authentication............................................     12

         Section 2.3.       Registrar, Paying Agent and Conversion Agent............................     13

         Section 2.4.       Paying Agent to Hold Cash and Securities in Trust.......................     14

         Section 2.5.       Holder Lists............................................................     14

         Section 2.6.       Transfer and Exchange...................................................     15

         Section 2.7.       Replacement Securities..................................................     16

         Section 2.8.       Outstanding Securities; Determinations of Holders' Action...............     16

         Section 2.9.       Temporary Securities....................................................     17

         Section 2.10.      Cancellation............................................................     18

         Section 2.11.      Persons Deemed Owners...................................................     18

         Section 2.12.      Additional Transfer and Exchange Requirements...........................     18

         Section 2.13.      CUSIP Numbers...........................................................     24

         Section 2.14.      Ranking.................................................................     24


                                       i



                                TABLE OF CONTENTS
                                   (CONTINUED)



                                                                                                        PAGE
                                                                                                     
ARTICLE III          REDEMPTION.....................................................................     25

         Section 3.1.       The Company's Right to Redeem; Notice to Trustee........................     25

         Section 3.2.       Selection of Securities to Be Redeemed..................................     25

         Section 3.3.       Notice of Redemption....................................................     26

         Section 3.4.       Effect of Notice of Redemption..........................................     27

         Section 3.5.       Deposit of Redemption Price.............................................     27

         Section 3.6.       Securities Redeemed in Part.............................................     27

         Section 3.7.       Repayment to the Company................................................     27

         Section 3.8.       No Sinking Fund.........................................................     27

ARTICLE IV           PURCHASE AT THE OPTION OF HOLDERS ON SPECIFIC DATES............................     28

         Section 4.1.       Optional Put............................................................     28

         Section 4.2.       Effect of Purchase Notice; Withdrawal of Purchase Notice................     30

         Section 4.3.       Deposit of Purchase Price...............................................     31

         Section 4.4.       Securities Purchased in Part............................................     31

         Section 4.5.       Covenant to Comply With Securities Laws Upon Purchase of Securities.....     32

         Section 4.6.       Repayment to the Company................................................     32

         Section 4.7.       No Purchase Upon Event of Default.......................................     32

ARTICLE V            PURCHASE AT THE OPTION OF HOLDERS UPON A DESIGNATED EVENT......................     32

         Section 5.1.       Designated Event Put....................................................     32

         Section 5.2.       Effect of Designated Event Purchase Notice..............................     35


                                       ii



                                TABLE OF CONTENTS
                                   (CONTINUED)



                                                                                                        PAGE
                                                                                                     
         Section 5.3.       Deposit of Designated Event Purchase Price..............................     36

         Section 5.4.       Securities Purchased in Part............................................     36

         Section 5.5.       Covenant to Comply With Securities Laws Upon Purchase of Securities.....     37

         Section 5.6.       Repayment to the Company................................................     37

ARTICLE VI           COVENANTS......................................................................     37

         Section 6.1.       Payment of Securities...................................................     37

         Section 6.2.       SEC and Other Reports to the Trustee....................................     38

         Section 6.3.       Compliance Certificate..................................................     39

         Section 6.4.       Further Instruments and Acts............................................     39

         Section 6.5.       Maintenance of Office or Agency of the Trustee, Registrar, Paying
                            Agent and Conversion Agent..............................................     39

         Section 6.6.       Delivery of Information Required Under Rule 144A........................     40

         Section 6.7.       Waiver of Stay, Extension or Usury Laws.................................     40

         Section 6.8.       Statement by Officers as to Default.....................................     40

ARTICLE VII          SUCCESSOR CORPORATION..........................................................     41

         Section 7.1.       When Company May Merge or Transfer Assets...............................     41

ARTICLE VIII         DEFAULTS AND REMEDIES..........................................................     42

         Section 8.1.       Events of Default.......................................................     42

         Section 8.2.       Acceleration............................................................     44

         Section 8.3.       Other Remedies..........................................................     44

         Section 8.4.       Waiver of Past Defaults.................................................     44


                                       iii



                                TABLE OF CONTENTS
                                   (CONTINUED)



                                                                                                        PAGE
                                                                                                     
         Section 8.5.       Control by Majority.....................................................     45

         Section 8.6.       Limitation on Suits.....................................................     45

         Section 8.7.       Rights of Holders to Receive Payment or to Convert......................     46

         Section 8.8.       Collection Suit by Trustee..............................................     46

         Section 8.9.       Trustee May File Proofs of Claim........................................     46

         Section 8.10.      Priorities..............................................................     47

         Section 8.11.      Undertaking for Costs...................................................     47

ARTICLE IX           TRUSTEE........................................................................     47

         Section 9.1.       Duties of Trustee.......................................................     47

         Section 9.2.       Rights of Trustee.......................................................     49

         Section 9.3.       Individual Rights of Trustee............................................     50

         Section 9.4.       Trustee's Disclaimer....................................................     50

         Section 9.5.       Notice of Defaults......................................................     50

         Section 9.6.       Reports by Trustee to Holders...........................................     51

         Section 9.7.       Compensation and Indemnity..............................................     51

         Section 9.8.       Replacement of Trustee..................................................     52

         Section 9.9.       Successor Trustee by Merger.............................................     53

         Section 9.10.      Eligibility; Disqualification...........................................     53

         Section 9.11.      Preferential Collection of Claims Against Company.......................     53

ARTICLE X            DISCHARGE OF INDENTURE.........................................................     53

         Section 10.1.      Discharge of Liability on Securities....................................     53


                                       iv



                                TABLE OF CONTENTS
                                   (CONTINUED)



                                                                                                        PAGE
                                                                                                     
         Section 10.2.      Repayment to the Company................................................     54

ARTICLE XI           AMENDMENTS.....................................................................     54

         Section 11.1.      Without Consent of Holders..............................................     54

         Section 11.2.      With Consent of Holders.................................................     55

         Section 11.3.      Compliance with Trust Indenture Act.....................................     56

         Section 11.4.      Revocation and Effect of Consents, Waivers and Actions..................     56

         Section 11.5.      Notation on or Exchange of Securities...................................     57

         Section 11.6.      Trustee to Sign Supplemental Indentures.................................     57

         Section 11.7.      Effect of Supplemental Indentures.......................................     57

ARTICLE XII          CONVERSION.....................................................................     57

         Section 12.1.      Conversion Right........................................................     57

         Section 12.2.      Conversion Procedures; Conversion Rate; Fractional Shares...............     59

         Section 12.3.      Adjustment of Conversion Rate...........................................     61

         Section 12.4.      Consolidation or Merger of the Company..................................     69

         Section 12.5.      Notice of Adjustment....................................................     71

         Section 12.6.      Notice in Certain Events................................................     71

         Section 12.7.      Company To Reserve Stock:  Registration; Listing........................     72

         Section 12.8.      Taxes on Conversion.....................................................     72

         Section 12.9.      Conversion After Regular Record Date....................................     73

         Section 12.10.     Company Determination Final.............................................     73

         Section 12.11.     Responsibility of Trustee for Conversion Provisions.....................     73


                                       v


                                TABLE OF CONTENTS
                                   (CONTINUED)



                                                                                                        PAGE
                                                                                                     
         Section 12.12.     Unconditional Right of Holders to Convert...............................     73

         Section 12.13.     Option to Satisfy Conversion Obligation with Cash, Common Stock or
                            Combination Thereof.....................................................     74

ARTICLE XIII         MISCELLANEOUS..................................................................     76

         Section 13.1.      Trust Indenture Act Controls............................................     76

         Section 13.2.      Notices.................................................................     76

         Section 13.3.      Communication by Holders with Other Holders.............................     77

         Section 13.4.      Certificate and Opinion as to Conditions Precedent......................     77

         Section 13.5.      Statements Required in Certificate or Opinion...........................     77

         Section 13.6.      Separability Clause.....................................................     78

         Section 13.7.      Rules by Trustee, Paying Agent, Conversion Agent, Registrar.............     78

         Section 13.8.      Legal Holidays..........................................................     78

         Section 13.9.      Governing Law; Submission to Jurisdiction; Service of Process...........     78

         Section 13.10.     No Recourse Against Others..............................................     79

         Section 13.11.     Successors..............................................................     79

         Section 13.12.     Multiple Originals......................................................     79


EXHIBIT A      Form of Security
EXHIBIT B    Form of Certificate to be Delivered by Transferee in Connection
               with Transfers to Institutional Accredited Investors
EXHIBIT C    Form of Restrictive Legend for Common Stock Issues Upon Conversion

                                       vi



INDENTURE, dated as of December 8, 2003, between CONCORD COMMUNICATIONS, INC., a
Massachusetts corporation (the "COMPANY"), and Wilmington Trust Company, a
Delaware banking corporation, as Trustee (the "TRUSTEE").

Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Company's 3.0% Convertible
Senior Notes due 2023:

                                   ARTICLE I

                   DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.1. Definitions.

"ADDITIONAL INTEREST" has the meaning set forth in the Registration Rights
Agreement. All references herein or in the Securities to interest accrued or
payable as of any date shall include any Additional Interest accrued or payable
as of such date as provided in the Registration Rights Agreement.

"ADDITIONAL SHARES" has the meaning set forth in the Registration Rights
Agreement.

"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 or cause the direction of 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 set forth in Section 2.1(b).

"APPLICABLE PROCEDURES" means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of the Depositary for such Security, in each case to the extent
applicable to such transaction and as in effect from time to time.

"APPLICABLE STOCK" means (a) the Common Stock and (b) in the event of a merger,
consolidation or other similar transaction involving the Company that is
otherwise permitted hereunder in which the Company is not the surviving
corporation, the common stock of such surviving corporation or its direct or
indirect, as applicable, parent corporation.

"BANKRUPTCY LAW" means Title 11, United States Code, or any similar United
States federal or state law for the relief of debtors.

"BOARD OF DIRECTORS" means either the board of directors of the Company or any
duly authorized committee of such board.

"BOARD RESOLUTION" means a resolution of the Board of Directors.

"BUSINESS DAY" means each day of the year other than a Saturday or a Sunday or
other day on which banking institutions in the City of New York are required or
authorized by law, regulation or executive order to close.

"CASH" means such coin or currency of the United States as at any time of
payment is legal tender for the payment of public and private debts.

"CASH SETTLEMENT AVERAGING PERIOD" has the meaning set forth in Section
12.13(a).

"CERTIFICATED SECURITIES" means Securities that are in substantially the form
attached hereto as Exhibit A and that do not include the information called for
by footnotes 1 and 2 thereof.

"CLOSING SALE PRICE" of a share of Applicable Stock on any date means the
closing per share sale price (or, if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) on such date as reported
by the Nasdaq National Market system or, if the shares of Applicable Stock are
not quoted on the Nasdaq National Market system, as reported on a national
securities exchange. If the Applicable Stock is not listed for trading on a
national securities exchange and not quoted by the Nasdaq National Market on the
relevant date, the "Closing Sale Price" shall be the last quoted bid for the
Applicable Stock in the over-the-counter market on the relevant date as reported
by the National Quotation Bureau or similar organization. If the Applicable
Stock is not so quoted, the "Closing Sale Price" shall be the average of the
midpoint of the last bid and ask prices for the Applicable Stock on the relevant
date from each of at least three nationally recognized independent investment
banking firms selected by us for this purpose.

"CODE" means the Internal Revenue Code of 1986, as amended.

"COMMON STOCK" means the authorized common stock, $0.01 par value per share, of
the Company or



any other shares of Equity Interest of the Company into which such Common Stock
shall be reclassified or changed.

"COMPANY" means the party named as the "Company" in the first paragraph of this
Indenture until a successor replaces it pursuant to the applicable provisions of
this Indenture and, thereafter, means such successor. The foregoing sentence
shall likewise apply to any subsequent successor or successors to such
successors.

"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order signed in
the name of the Company by any two Officers, at least one of whom is the Chief
Executive Officer or the Chief Financial Officer.

"CONVERSION AGENT" has the meaning set forth in Section 2.3.

"CONVERSION NOTICE" has the meaning set forth in Section 12.2(b).

"CONVERSION PERIOD" means the period from and including the 30th Trading Day in
a fiscal quarter of the Company to, but not including, the 30th Trading Day (or
if that day is not a Trading Day, then the next Trading Day) in the immediately
following fiscal quarter of the Company.

"CONVERSION PRICE" means, at any time, $1,000 divided by the Conversion Rate in
effect at such time, rounded to two decimal places (rounded up if the third
decimal place thereof is 5 or more and otherwise rounded down).

"CONVERSION RATE" means the number of shares of Common Stock issuable upon
conversion of each $1,000 of Principal Amount of Securities, which is initially
37.2148 shares, subject to adjustments as set forth in this Indenture.

"CONVERSION SETTLEMENT STOCK PRICE" means the arithmetic average of the Closing
Prices of Common Stock during the Cash Settlement Averaging Period.

"CORPORATE TRUST OFFICE" means the principal office of the Trustee at which at
any time its corporate trust business shall be administered, which office at the
date hereof is located at 1100 North Market Street, Rodney Square North,
Wilmington, DE 19890-1615, 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 a
successor Trustee may designate from time to time by notice to the Holders and
the Company).

"CURRENT MARKET PRICE" has the meaning set forth in Section 12.3(g).

"CUSTODIAN" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.

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

"DEPOSITARY" means, with respect to any Global Securities, a securities clearing
agency that is registered as such under the Exchange Act and is designated by
the Company to act as Depositary for such Global Securities (or any successor
securities clearing agency so registered), which shall initially be DTC.

"DESIGNATED EVENT" means the occurrence of any of the following events: (i) any
"person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), is or becomes the "beneficial owner" (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that a Person shall be deemed to have
beneficial ownership of all shares that such Person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 50% of the total outstanding Voting
Stock of the Company; (ii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors (together with any new directors whose election to such Board of
Directors or whose nomination for election by the stockholders of the Company,
was approved by a vote of at least 66-2/3% of the directors then still in office
who were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of such Board of Directors then in office; (iii) the
Company consolidates with or merges with or into any Person or conveys,
transfers, sells or otherwise disposes of or leases all or substantially all of
its assets to any Person, or any corporation consolidates with or merges into or
with the Company, in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Company is changed into or exchanged for cash,
securities or other property, other than any such transaction where the
outstanding Voting Stock of the Company is not changed or exchanged at all
(except to the extent necessary to reflect a change in the jurisdiction of
incorporation of the Company) or where (A) the outstanding Voting Stock of the
Company is changed into or exchanged for cash, securities and other property
(other than Equity Interest of the surviving corporation) and (B) the
stockholders of the Company immediately before such transaction constituting a

                                       2


change of control own, directly or indirectly, immediately following such
transaction, more than 50% of the total outstanding Voting Stock of the
surviving corporation; (iv) the Company or any Designated Subsidiary is
liquidated or dissolved or adopts a plan of liquidation or dissolution other
than in a transaction which complies with the provisions described under Article
VII; or (v) the Company's Common Stock ceases to be quoted on the Nasdaq
National Market or listed on a national securities exchange or traded on an
established automated over-the-counter trading market in the United States.

A "Designated Event" shall not be deemed to have occurred if either:

                           (1)      the last Closing Sale Price of the Common
         Stock for each of at least five Trading Days within:

         (i)      the period of the ten consecutive Trading Days immediately
after the later of the Designated Event or the public announcement of the
Designated Event, in the case of a Designated Event resulting solely from a
Designated Event in clause (i) of the definition of Designated Event; or

         (ii)     the period of the ten consecutive Trading Days immediately
preceding the Designated Event, in the case of a Designated Event resulting from
a Designated Event in clauses (ii), (iii) or (iv) of the definition of
Designated Event;

         is at least equal to 105% of the quotient where the numerator is the
         Principal Amount and the denominator is the Conversion Rate in effect
         on each of such five Trading Days, with such calculation being made for
         each Trading Day; or

                           (2)      in the case of a merger or consolidation
         described in clause (iii) of the definition of Designated Event, at
         least 95% of the consideration, excluding cash payments for fractional
         shares and cash payments pursuant to dissenters' approval rights, in
         the merger or consolidation constituting the Designated Event, consists
         of common stock traded on a U.S. national securities exchange or quoted
         on the Nasdaq National Market (or which shall be so traded or quoted
         when issued or exchanged in connection with such Designated Event) and
         as a result of such transaction or transactions the Securities become
         convertible solely into such common stock.

"DESIGNATED EVENT PURCHASE DATE" has the meaning set forth in Section 5.1(a).

"DESIGNATED EVENT PURCHASE NOTICE" has the meaning set forth in Section 5.1(c).

"DESIGNATED EVENT PURCHASE PRICE" has the meaning set forth in Section 5.1(a).

"DESIGNATED SUBSIDIARY" means any existing or future, direct or indirect,
Subsidiary of the Company that would constitute a "significant subsidiary" as
such term is defined under Rule 1.02 of Regulation S-X.

"DISTRIBUTED ASSETS" has the meaning set forth in Section 12.3(d).

"DTC" means The Depository Trust Company, a New York corporation.

"EDGAR" has the meaning set forth in Section 6.2(b).

"EQUITY INTEREST" of any Person means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or interests
in (however designated) corporate stock or other equity participations,
including partnership interests, whether general or limited, of such Person.

"EVENT OF DEFAULT" has the meaning set forth in Section 8.1.

"EXCESS AMOUNT" has the meaning set forth in Section 12.13(a).

"EXCHANGE ACT" means the United States Securities Exchange Act of 1934, as
amended.

"EX-DIVIDEND TIME" means, with respect to any issuance or distribution on Common
Stock, the first Trading Day on which the Common Stock trades regular way on the
principal securities market on which the Common Stock is then traded without the
right to receive such issuance or distribution.

"EXPIRATION TIME" has the meaning set forth in Section 12.3(e).

"FAIR MARKET VALUE" has the meaning set forth in Section 12.3(g).

"GLOBAL SECURITIES" means Securities that are in substantially the form attached
hereto as Exhibit A and that include the information called for by footnotes 1
and 3 thereof and that are deposited with the Depositary or its custodian and
registered in the name of, the Depositary or its nominee.

"HOLDER" means a person in whose name a Security is registered on the
Registrar's books.

"INDEBTEDNESS" means, with respect to any Person, without duplication, any
liability of such Person:

                  (a)      for borrowed money;

                                       3


                  (b)      evidenced by bonds, debentures, notes;

                  (c)      in respect of letters of credit or bankers
         acceptances or similar instruments (or reimbursement obligations with
         respect thereto);

                  (d)      to pay the deferred purchase price of property or
         services, except trade accounts payable arising in the ordinary course
         of business;

                  (e)      as lessee, the obligations of which are capitalized
         in accordance with generally accepted accounting principles; and

                  (f)      for Indebtedness of others guaranteed by such Person
         or for which such Person is legally responsible or liable (whether by
         agreement to purchase indebtedness of, or to supply funds or to invest
         in, others).

The amount of Indebtedness of any Person at any date shall be (i) the
outstanding principal amount of all unconditional obligations described above,
as such amount would be reflected on a balance sheet prepared in accordance with
United States generally accepted accounting principles, and the maximum
liability at such date of such Person for any contingent obligations described
above, (ii) the accreted value thereof, in the case of any Indebtedness issued
with original issue discount, and (iii) the principal amount thereof, together
with any interest thereon that is more than 30 days past due, in the case of any
other Indebtedness.

"INDENTURE" means this Indenture, as amended or supplemented from time to time
in accordance with the terms hereof, including the provisions of the TIA that
are explicitly incorporated in this Indenture by reference to the TIA.

"INTEREST PAYMENT DATE" has the meaning set forth in Exhibit A attached hereto.

"ISSUE DATE" of any Security means the date on which such Security was
originally issued or deemed issued as set forth on the face of the Security.

"LEGAL HOLIDAY" means any day other than a Business Day.

"MARKET PRICE" means the average of the Closing Sale Prices of one share of
Applicable Stock for the 20-Trading Day period immediately preceding and
including the Business Day immediately preceding the Purchase Date or Designated
Event Purchase Date, as the case may be (or if the Business Day immediately
preceding the Purchase Date or Designated Event Purchase Date, as the case may
be, is not a Trading Day, then on the last Trading Day immediately preceding the
Business Day), appropriately adjusted to take into account the occurrence,
during the period commencing on the first of such Trading Days during such
20-Trading Day period and ending on the Purchase Date or Designated Event
Purchase Date, as the case may be, of any event described in Section 12.3 or
Section 12.4.

"NON-ELECTING SHARE" has the meaning set forth Section 12.4.

"OFFICER" means the Chief Executive Officer, the President, the Chief Financial
Officer, any Vice President, the Treasurer, or the Clerk of the Company.

"OFFICERS' CERTIFICATE" means a written certificate containing the information
specified in Section 13.4 and Section 13.5, signed in the name of the Company by
any two Officers, at least one of whom is the Chief Executive Officer or the
Chief Financial Officer, and delivered to the Trustee. An Officers' Certificate
given pursuant to Section 6.3 shall be signed by the Chief Financial Officer and
one other Officer.

"OPINION OF COUNSEL" means a written opinion containing the information
specified in Section 13.4 and Section 13.5, from legal counsel. The counsel may
be an employee of, or counsel to, the Company.

"PAYING AGENT" has the meaning set forth in Section 2.3.

"PERSON" or "PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof (and for purposes of the definition of "Designated Event"
shall also have the meaning set forth in such definition).

"PRINCIPAL AMOUNT" of a Security means the principal amount of the Security as
set forth on the face of the Security.

"PURCHASE DATE" has the meaning set forth in Section 4.1(a).

                                       4


"PURCHASE NOTICE" has the meaning set forth in Section 4.1(c).

"PURCHASE PRICE" has the meaning set forth in Section 4.1(a).

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

"RECORD DATE" has the meaning set forth in Section 12.3(g).

"REDEMPTION DATE" means, when used with respect to any Security to be redeemed,
the date fixed for redemption pursuant to this Indenture.

"REDEMPTION PRICE" shall mean an amount equal to 100% of the Principal Amount of
the Securities to be redeemed plus any accrued and unpaid interest (including
Additional Interest, if any) to, but excluding, the Redemption Date.

"REFERENCE PERIOD" has the meaning set forth in Section 12.3(d).

"REGISTRAR" has the meaning set forth in Section 2.3.

"REGISTER" has the meaning set forth in Section 2.3.

"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement, dated
December 8, 2003, between the Company and Bear, Stearns & Co. Inc., as amended
or supplemented from time to time.

"REGULAR RECORD DATE" has the meaning set forth in Exhibit A attached hereto.

"RELIANCE LETTER" means a letter from legal counsel to the Company authorizing
the Trustee to rely on certain provisions contained in that certain legal
opinion of such counsel, dated as of December 8, 2003, delivered to Bear,
Stearns & Co. Inc.

"RESPONSIBLE OFFICER" means, when used with respect to the Trustee, the officer
within the corporate trust department of the Trustee, including any vice
president, assistant vice president or assistant treasurer 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, or to whom any
corporate trust matter is referred because of such person's knowledge of and
familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.

"RESTRICTED CERTIFICATED SECURITY" means a Certificated Security which is a
Transfer Restricted Security.

"RESTRICTED GLOBAL SECURITY" means a Global Security that is a Transfer
Restricted Security.

"RESTRICTED SECURITY" means a Restricted Certificated Security or a Restricted
Global Security.

"RULE 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.

"SEC" means the United States Securities and Exchange Commission, or any
successor thereto.

"SECURITIES" means any of the Company's 3.0% Convertible Senior Notes due 2023,
as amended or supplemented from time to time, issued under this Indenture.

"SECURITIES ACT" means the United States Securities Act of 1933, as amended, or
any successor statute thereto.

"SPECIAL RECORD DATE" has the meaning set forth in Exhibit A attached hereto.

"SPIN-OFF" has the meaning set forth in Section 12.3(d).

"STATED MATURITY", when used with respect to any Security, means December 15,
2023.

"SUBSIDIARY" means any person of which at least a majority of the outstanding
Voting Stock shall at the time directly or indirectly be owned or controlled by
the Company or by one or more Subsidiaries or by the Company and one or more
Subsidiaries.

"TIA" means the United States Trust Indenture Act of 1939 as in effect on the
date of this Indenture, provided, however, that in the event the TIA is amended
after such date, TIA means, to the extent required by any such amendment, the
TIA as so amended.

"TRADING DAY" means a day during which trading in securities generally occurs on
the Nasdaq National Market system or, if the Applicable Stock is not quoted on
the Nasdaq National Market system, on the principal U.S. national or regional
securities exchange on which the Applicable Stock is then listed or, if the
Applicable Stock is not listed on a U.S. national or regional securities
exchange, and not quoted on the Nasdaq National Market system, on the principal
other market on which the Applicable Stock is then traded (provided that no day
on which trading of the Applicable Stock is suspended on such exchange or other
trading market will count as a Trading Day).

"TRANSFER CERTIFICATE" has the meaning set forth in Section 2.12(f).

"TRANSFER RESTRICTED SECURITY" has the meaning set forth in Section 2.12(f).

"TRIGGER EVENT" has the meaning set forth in Section 12.3(d).


                                       5

"TRUSTEE" means the party named as the "Trustee" in the first paragraph of this
Indenture until a successor replaces it pursuant to the applicable provisions of
this Indenture and, thereafter, shall mean such successor. The foregoing
sentence shall likewise apply to any subsequent such successor or successors.

"UNRESTRICTED CERTIFICATED SECURITY" means a Certificated Security that is not a
Transfer Restricted Security.

"UNRESTRICTED GLOBAL SECURITY" means a Global Security that is not a Transfer
Restricted Security.

"VOTING STOCK" of a person means the Equity Interest of such person of the class
or classes pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such person (irrespective of whether or not
at the time the Equity Interest of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).

"WHOLLY OWNED SUBSIDIARY" means a Subsidiary all the Equity Interest of which is
owned by the Company or another Wholly Owned Subsidiary, other than directors'
qualifying shares.

Section 1.2. Incorporation by Reference of Trust Indenture Act.

Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:

"COMMISSION" means the SEC.

"INDENTURE SECURITIES" means the Securities.

"INDENTURE SECURITY HOLDER" means a Holder.

"INDENTURE TO BE QUALIFIED" means this Indenture.

"INDENTURE TRUSTEE" or "institutional trustee" means the Trustee.

"OBLIGOR" on the indenture securities means the Company.

All other TIA terms used but not defined in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.

Section 1.3. Rules of Construction.

Unless the context otherwise requires:

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

                  (b)      an accounting term not otherwise defined has the
         meaning assigned to it in accordance with accounting principles
         generally accepted in the United States as in effect from time to time;

                  (c)      "or" is not exclusive;

                  (d)      "including" means including, without limitation; and

                  (e)      words in the singular include the plural, and words
         in the plural include the singular.

Section 1.4. Acts of Holders.

(a)  Any request, demand, authorization, direction, notice, consent, waiver or
     other action provided by this Indenture to be given or taken by the Holders
     may be embodied in and evidenced by one or more instruments of
     substantially similar tenor signed by such Holders in person or by an 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, as described in Section 13.2. Such instrument or
     instruments (and the action embodied therein and evidenced thereby) are
     herein sometimes referred to as the "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 conclusive in favor of the Trustee and the Company, if
     made in the manner provided in this Section 1.4.

                                       6


(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 such officer the execution thereof.
     Where such execution is by a signer acting in a capacity other than such
     signer's individual capacity, such certificate or affidavit shall also
     constitute sufficient proof of such signer's authority, if it so states.
     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 deems sufficient.

(c)  The principal amount and certificate number of any Security and the
     ownership of Securities shall be proved by the Register maintained by the
     Registrar for the Securities.

(d)  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.

(e)  If the Company shall solicit from the Holders any request, demand,
     authorization, direction, notice, consent, waiver or other Act, the Company
     may, at its option, by or pursuant to a Board Resolution, fix in advance a
     record date for the determination of Holders entitled to give such request,
     demand, authorization, direction, notice, consent, waiver or other Act, but
     the Company shall have no obligation to do so. If such a record date is
     fixed, such request, demand, authorization, direction, notice, consent,
     waiver or other Act may be given before or after such record date, but only
     the Holders of record at the close of business on such record date shall be
     deemed to be Holders for the purposes of determining whether Holders of the
     requisite proportion of outstanding Securities have authorized or agreed or
     consented to such request, demand, authorization, direction, notice,
     consent, waiver or other Act, and for that purpose the outstanding
     Securities shall be computed as of such record date; provided that no such
     authorization, agreement or consent by the Holders on such record date
     shall be deemed effective unless it shall become effective pursuant to the
     provisions of this Indenture not later than six months after the record
     date.

                                   ARTICLE II

                                 THE SECURITIES

Section 2.1. Form and Dating.

The Securities shall be designated as the "3.0% Convertible Senior Notes due
2023" of the Company. The aggregate principal amount of Securities outstanding
at any time may not exceed $86,250,000 except as provided in Section 2.7.

The Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A attached hereto, which is incorporated in
and made a part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage (provided that any
such notation, legend or endorsement required by usage is in a form acceptable
to the Company). The Company shall provide any such notations, legends or
endorsements to the Trustee in writing. Each Security shall be dated the date of
its authentication.

(a)  Restricted Global Securities. All of the Securities are being offered and
     sold within the United States to QIBs in reliance on Rule 144A and shall be
     issued, initially in the form of one or more Restricted Global Securities,
     which shall be deposited with the Trustee at its Corporate Trust Office, as
     custodian for the Depositary and registered in the name of DTC or the
     nominee thereof, duly executed by the Company and authenticated by the
     Trustee as hereinafter provided. The aggregate principal amount of the
     Restricted Global Securities may from time to time be increased or
     decreased by adjustments made on the records of the Trustee and the
     Depositary as hereinafter provided.

                                       7


(b)  Global Securities in General. Each Global Security shall represent such of
     the outstanding Securities as shall be specified therein and each shall
     provide that it shall initially represent the aggregate amount of
     outstanding Securities stated thereon, but that the aggregate amount of
     outstanding Securities represented thereby may from time to time be reduced
     or increased, as appropriate, to reflect exchanges, redemptions,
     repurchases and conversions of such Securities.

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

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

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

Section 2.2. Execution and Authentication.

The Securities shall be executed on behalf of the Company by any Officer. The
signature of the Officer on the Securities may be manual or facsimile.

A Security bearing the manual or facsimile signature of an individual who was at
the time of the execution of the Security an Officer shall bind the Company,
notwithstanding that such individual has ceased to hold such office(s) prior to
the authentication and delivery of such Securities or did not hold such
office(s) at the date of authentication of such Securities.

No Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.

The Trustee shall authenticate and deliver the Securities for original issuance
in an aggregate principal amount of up to $86,250,000 upon one or more Company
Orders without any further action by the Company (other than as contemplated
below and in Section 13.4 and Section 13.5). The aggregate principal amount due
at the Stated Maturity of the Securities outstanding at any time may not exceed
the amount set forth in the foregoing sentence except as provided in Section
2.7. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall receive and shall be fully protected in relying upon:

                  (a)      a copy of the Board Resolution in or pursuant to
         which the terms and form of the Securities were established, the
         issuance and sale of the Securities was authorized, this Indenture was
         authorized and specified Officers were authorized to establish the form
         and determine the terms of the Securities and the form of this
         Indenture, to execute the Securities and this Indenture on behalf of
         the Company and to take any other necessary actions relating thereto
         and evidence of any actions taken by authorized Officers pursuant to
         that Board Resolution, certified by the Clerk, an Assistant Clerk or
         the General Counsel of the Company to have been duly adopted by the
         Board of Directors or taken by any authorized Officer and to be in full
         force and effect as of the date of such certificate; and

                  (b)      an Officer's Certificate delivered in accordance with
         to Section 13.4 and Section 13.5.

                                       8


The Trustee shall act as the initial authenticating agent. Thereafter, the
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.

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

Section 2.3. Registrar, Paying Agent and Conversion Agent.

Pursuant to Section 6.5, the Company shall maintain an office or agency where
Securities may be presented for registration of transfer or for exchange
("REGISTRAR"), an office or agency where Securities may be presented for
redemption, repurchase or payment ("PAYING AGENT"), an office or agency where
Securities may be presented for conversion ("CONVERSION AGENT") and an office or
agency where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. Pursuant to Section 6.5, the
Company shall at all times maintain a Registrar, Paying Agent, Conversion Agent
and an office or agency where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served in the Borough of
Manhattan, New York City. The Registrar shall keep a register of the Securities
(the "REGISTER") and of their transfer and exchange.

The Company may have one or more co-registrars, one or more additional paying
agents and one or more additional conversion agents. The term Paying Agent
includes any additional paying agent, including any named pursuant to Section
6.5. The term Conversion Agent includes any additional conversion agent,
including any named pursuant to Section 6.5.

The Company shall enter into an appropriate limited agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-registrar (in each case, if such
Registrar, agent or co-registrar is a Person other than the Trustee). Each such
agreement shall implement the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee of the name and address of any such
agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 9.7. The Company or any Subsidiary or an Affiliate of either
of them may act as Paying Agent, Registrar, Conversion Agent or co-registrar
and, if the Company fails to maintain a Conversion Agent, the Company shall act
as such.

The Company hereby initially appoints the Trustee as Registrar, Paying Agent and
Conversion Agent in connection with the Securities. The initial office of the
Registrar, Paying Agent and Conversion Agent shall be the office of the Trustee
that is located in the Borough of Manhattan, New York City, which office on the
date hereof is 520 Madison Avenue, 33rd Floor, New York, NY 10022.

Section 2.4. Paying Agent to Hold Cash and Securities in Trust.

Except as otherwise provided herein, prior to 10:00 a.m., New York City time, on
each due date of payments in respect of any Security, the Company shall deposit
with the Paying Agent, cash (in immediately available funds if deposited on the
due date) or number of shares of Applicable Stock, as applicable, sufficient to
make such payments when so becoming due. 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 cash and Applicable
Stock held by the Paying Agent for the making of payments in respect of the
Securities and shall notify the Trustee of any default by the Company in making
any such payment. If the Company, a Subsidiary or an Affiliate of either of them
acts as Paying Agent, it shall segregate the money and Applicable Stock held by
it as Paying Agent and hold it as a separate trust fund. The Company at any time
may require a Paying Agent to pay all cash and Applicable Stock held by it to
the Trustee, and to account for any funds and Applicable Stock disbursed by it,
and the Trustee may at any time during the continuance of any such default, upon
the written request to the Paying Agent, require such Paying Agent to forthwith
pay to the Trustee all cash and Applicable Stock so held in trust. Upon doing
so, the Paying Agent shall have no further liability for the cash or Applicable
Stock.

Section 2.5. Holder Lists.

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

                                       9

reasonably require of the names and addresses of Holders.

Section 2.6. Transfer and Exchange.

(a)  Subject to compliance with any applicable additional requirements contained
     in Section 2.12, when a Security is presented to the Registrar with a
     request to register a transfer thereof or to exchange such Security for an
     equal principal amount of Securities of other authorized denominations, the
     Registrar shall register the transfer or make the exchange as requested;
     provided, however, that every Security presented or surrendered for
     registration of transfer or exchange shall be duly endorsed or accompanied
     by an assignment form and, if applicable, a transfer certificate, each in
     the form included in Exhibit A attached hereto and in form satisfactory to
     the Registrar and each duly executed by the Holder thereof or its attorney
     duly authorized in writing. To permit registration of transfers and
     exchanges, upon surrender of any Security for registration of transfer or
     exchange at an office or agency maintained for such purpose pursuant to
     Section 2.3, the Company shall execute, and the Trustee shall authenticate,
     Securities of a like aggregate principal amount at the Registrar's request.
     Any transfer or exchange shall be without charge, except that the Company
     or the Registrar may require payment of a sum sufficient to pay all taxes,
     assessments or other governmental charges that may be imposed in connection
     with the transfer or exchange of the Securities from the Holder requesting
     such transfer or exchange.

     Neither the Company, the Registrar nor the Trustee shall be required to
     exchange or register a transfer of (i) any Securities selected for
     redemption (except, in the case of Securities to be redeemed in part, the
     portion thereof not to be redeemed), or (ii) any Securities in respect of
     which a Purchase Notice or a Designated Event Purchase Notice has been
     given and not withdrawn by the Holder thereof in accordance with the terms
     of this Indenture (except, in the case of Securities to be repurchased in
     part, the portion thereof not to be repurchased), or (iii) any Securities
     surrendered for conversion (except, in the case of Securities to be
     converted in part, the portion thereof not to be converted).

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

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

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

Section 2.7. Replacement Securities.

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

In case any such mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, or is about to be redeemed by the Company
pursuant to Article III or repurchased by the Company pursuant to Article IV or
Article V, the Company in its discretion may, instead of issuing a new

                                       10


Security, pay, redeem or repurchase such Security, as the case may be.

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

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

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

Section 2.8. Outstanding Securities; Determinations of Holders' Action.

Securities outstanding at any time are all the Securities authenticated by the
Trustee, except for

(a)  those cancelled by it,

(b)  those paid, redeemed or repurchased pursuant to Section 2.7,

(c)  those delivered to it for cancellation, and

(d)  those described in this Section 2.8 as not outstanding.

A Security does not cease to be outstanding because the Company or an Affiliate
thereof holds the Security; provided, however, that in determining whether the
Holders of the requisite principal amount of Securities have given or concurred
in any request, demand, authorization, direction, notice, consent, waiver, or
other Act hereunder, Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or 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, waiver or other Act, only Securities
which a Responsible Officer of the Trustee actually knows to be so owned shall
be so disregarded. Subject to the foregoing, only Securities outstanding at the
time of such determination shall be considered in any such determination.

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

If the Paying Agent holds, in accordance with the terms of this Indenture, prior
to 10:00 a.m., New York City time, on a Redemption Date, a Purchase Date, a
Designated Event Purchase Date or Stated Maturity, as the case may be, cash or
securities, if permitted hereunder, sufficient to pay Securities payable on that
date, then on such Redemption Date, Purchase Date, Designated Event Purchase
Date or Stated Maturity, as the case may be, such Securities shall cease to be
outstanding and interest and Additional Interest, if any, on such Securities
shall cease to accrue.

If a Security is converted in accordance with Article XII, then from and after
the time of conversion on the date of conversion, such Security shall cease to
be outstanding and interest and Additional Interest, if any, on such Security
shall cease to accrue.

Section 2.9. Temporary Securities.

Pending the preparation of definitive Securities, the Company may execute, and
upon Company Order, the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
Officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities.

If temporary Securities are issued, the Company shall cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be

                                       11


exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 2.3, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations. 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 definitive
Securities.

Section 2.10. Cancellation.

All Securities surrendered for payment, repurchase by the Company pursuant to
Article IV or Article V, conversion, redemption or registration of transfer or
exchange shall, if surrendered to any person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it or, if
surrendered to the Trustee, shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee. The Company may not issue new Securities to replace Securities
it has paid or delivered to the Trustee for cancellation or that any Holder has
converted pursuant to Article XII No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section 2.10,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of by the Trustee in accordance with the
Trustee's customary procedure.

Section 2.11. Persons Deemed Owners.

Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee, any Paying Agent and any agent of the Company, the Trustee
or the Paying Agent may treat the person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment
(whether in cash or Applicable Stock) of principal of, Redemption Price,
Purchase Price or Designated Event Purchase Price, and interest and Additional
Interest, if any, on, the Security, for the purpose of receiving cash or
Applicable Stock upon conversion and for all other purposes whatsoever, whether
or not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
Section 2.12. Additional Transfer and Exchange Requirements.

(a)  Transfer and Exchange of Global Securities.

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

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

                                       12


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

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

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

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

     (i)  shall be duly endorsed or accompanied by a written instrument of
          transfer in accordance with the proviso to the first paragraph of
          Section 2.6; and

     (ii) in the case of a Restricted Certificated Security, such request shall
          be accompanied by the following additional information and documents,
          as applicable:

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

          (B)  if such Restricted Certificated Security is being transferred to
               a person the Holder reasonably believes is a QIB in accordance
               with Rule 144A or pursuant to an effective registration statement
               under the Securities Act, a certification to that effect from
               such Holder (in substantially the form set forth in the Transfer
               Certificate); or

          (C)  if such Restricted Certificated Security is being transferred
               pursuant to an exemption from the registration requirements of
               the Securities Act in accordance with Rule 144 or to an
               institutional "accredited investor" (as defined in Rule
               501(a)(1), (2), (3) or (7) of Regulation D under the Securities
               Act) pursuant to and in compliance with an exemption from the
               registration requirements under the Securities Act, a
               certification to that effect from the Holder (in substantially
               the form set forth in the Transfer Certificate) and, in the case
               of a transfer to an institutional accredited investor, a
               certificate containing certain representations and warranties (in
               substantially the form set forth in Exhibit B) and, in either
               case, if the Company or the Registrar so requests, a customary
               Opinion of Counsel, certificates and other information reasonably
               acceptable to the Company and the Registrar to the effect that
               such transfer does not require registration under the Securities
               Act.

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

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

     (ii) if such beneficial interest is being transferred pursuant to an
          exemption from the registration requirements of the Securities Act in
          accordance with Rule 144, a certification to that effect from the
          Holder (in substantially the form set forth in the Transfer
          Certificate) and, if the Company or the Trustee so requests, a
          customary Opinion

                                       13


     of Counsel, certificates and other information reasonably acceptable to the
     Company and the Trustee to the effect that such transfer does not require
     registration under the Securities Act,

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

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

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

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

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

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

     (1)  shall be duly endorsed or accompanied by a written instrument of
          transfer in accordance with the proviso to the first paragraph of
          Section 2.6;

                                       14

     (2)  in the case of a Restricted Certificated Security to be transferred
          for a beneficial interest in an Unrestricted Global Security, such
          request shall be accompanied by the following additional information
          and documents, as applicable:

          (i)  if such Restricted Certificated Security is being transferred
               pursuant to an effective registration statement under the
               Securities Act, a certification to that effect from such Holder
               (in substantially the form set forth in the Transfer
               Certificate); or

          (ii) if such Restricted Certificated Security is being transferred
               pursuant to an exemption from the registration requirements of
               the Securities Act in accordance with Rule 144, a certification
               to that effect from such Holder (in substantially the form set
               forth in the Transfer Certificate) and, if the Company or the
               Registrar so requests, a customary Opinion of Counsel,
               certificates and other information reasonably acceptable to the
               Company and the Trustee to the effect that such transfer does not
               require registration under the Securities Act;

     (3)  in the case of a Restricted Certificated Security to be transferred or
          exchanged for a beneficial interest in a Restricted Global Security,
          such request shall be accompanied by a certification from such Holder
          (in substantially the form set forth in the Transfer Certificate) to
          the effect that such Restricted Certificated Security is being
          transferred to a person the Holder reasonably believes is a QIB
          (which, in the case of an exchange, shall be such Holder) in
          accordance with Rule 144A;

     (4)  in the case of an Unrestricted Certificated Security to be transferred
          or exchanged for a beneficial interest in an Unrestricted Global
          Security, such request need not be accompanied by any additional
          information or documents; and

     (5)  in the case of an Unrestricted Certificated Security to be transferred
          or exchanged for a beneficial interest in a Restricted Global
          Security, such request shall be accompanied by a certification from
          such Holder (in substantially, the form set forth in the Transfer
          Certificate) to the effect that such Unrestricted Certificated
          Security is being transferred to a person the Holder reasonably
          believes is a QIB (which, in the case of an exchange, shall be such
          Holder) in accordance with Rule 144A.

(f)  Legends.

     (1)  Except as permitted by the following paragraphs (2), (3) and (4), each
          Global Security and Certificated Security (and all Securities issued
          in exchange therefor or upon registration of transfer or replacement
          thereof) shall bear a legend in substantially the form called for by
          footnote 2 to Exhibit A attached hereto (each a "TRANSFER RESTRICTED
          SECURITY"), for so long as it is required by this Indenture to bear
          such legend. Each Transfer Restricted Security shall have attached
          thereto a certificate (a "TRANSFER CERTIFICATE") in substantially the
          form called for by footnote 4 to Exhibit A attached hereto.

     (2)  Upon any sale or transfer of a Transfer Restricted Security (x) after
          the expiration of the holding period applicable to sales of the
          Securities under Rule 144(k) of the Securities Act, (y) pursuant to
          Rule 144 or (z) pursuant to an effective registration statement under
          the Securities Act:

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

          (ii) in the case of any beneficial interest in a Restricted Global
               Security, the Trustee shall permit the beneficial owner thereof
               to transfer such beneficial interest to a transferee who shall
               take such interest in the form of a

                                       15

               beneficial interest in an Unrestricted Global Security and shall
               rescind any restriction on transfer of such beneficial interest;
               provided, that such Unrestricted Global Security shall continue
               to be subject to the provisions of Section 2.12(a)(ii); and
               provided, further, that the owner of such beneficial interest
               shall, in connection with such transfer, comply with the other
               applicable provisions of this Section 2.12.

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

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

     (5)  Until the expiration of the holding period applicable to sales of the
          Securities under Rule 144(k) of the Securities Act or a transfer
          pursuant to Rule 144 or pursuant to an effective registration
          statement under the Securities Act, the Applicable Stock issued upon
          conversion of the Securities shall bear the legend in substantially
          the form called for by Exhibit C attached hereto.

(g)  Transfers to the Company. Nothing contained in this Indenture or in the
     Securities shall prohibit the sale or other transfer of any Securities
     (including beneficial interests in Global Securities) to the Company or any
     of its Subsidiaries, which Securities shall thereupon be cancelled in
     accordance with Section 2.10.

(h)  Amendments to Rule 144(k). Notwithstanding any other provision in this
     Indenture, if Rule 144(k) as promulgated under the Securities Act is
     amended to shorten the two-year period under Rule 144(k), then the
     references to "two years" in the restrictive legend of each Transfer
     Restricted Security and footnote one to Exhibit A shall be deemed to refer
     to such shorter period, from and after receipt by the Trustee of the
     documents described in Section 2.12(e)(2) from the Company or from a Holder
     of a Transfer Restricted Security; provided that, Transfer Restricted
     Security shall not be deemed to refer to such shorter period if to do so
     would be prohibited by, or would otherwise cause a violation of, the U.S.
     federal securities laws applicable at the time. As soon as practicable
     after a Responsible Officer of the Company receives notice of the
     effectiveness of any such amendment to shorten the two-year period under
     Rule 144(k), unless causing the Transfer Restricted Securities to refer to
     such shorter period would otherwise be prohibited by, or would otherwise
     cause a violation of, the U.S. federal securities laws applicable at the
     time, the Company will provide to the Trustee the documents described in
     Section 2.12(e)(2) respecting the effectiveness of such amendment.

Section 2.13. CUSIP Numbers.

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

Section 2.14. 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 shall constitute a senior unsecured general obligation
of the Company, ranking equally in right of payment with other existing and
future senior unsecured Indebtedness of the Company and ranking senior in right
of payment to any future Indebtedness of the Company that is expressly made
subordinate to the Securities by the terms of such Indebtedness.

                                       16


                                  ARTICLE III

                                   REDEMPTION

Section 3.1. The Company's Right to Redeem; Notice to Trustee.

Prior to December 15, 2008, the Securities shall not be redeemable at the
Company's option. On or after December 15, 2008, the Company, at its option, may
redeem the Securities in accordance with this Article III for cash at any time
as a whole, or from time to time in part, at the Redemption Price.

In the event that the Company elects to redeem the Securities on a date that is
after any Regular Record Date but on or before the corresponding Interest
Payment Date, the Company shall be required to pay any accrued and unpaid
interest and Additional Interest, if any, to the holder of the redeemed Security
and not the Holder on the corresponding Regular Record Date.

If the Company elects to redeem Securities, it shall notify the Trustee in
writing of the Redemption Date, the principal amount of Securities to be
redeemed and the Redemption Price. The Company shall give this notice to the
Trustee by a Company Order at least 30 days before the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee).

Section 3.2. Selection of Securities to Be Redeemed.

If fewer than all of the outstanding Securities are to be redeemed, unless the
procedures of the Depositary provide otherwise, the Trustee shall select the
Securities to be redeemed by lot or on a pro rata basis or by another method the
Trustee considers fair and appropriate. The Trustee shall make the selection
within five Business Days after it receives the notice provided for in Section
3.1 from outstanding Securities not previously called for redemption.

Securities and portions of Securities that the Trustee selects shall be in
principal amounts of $1,000 or an integral multiple of $1,000. Provisions of
this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall notify the
Company promptly of the Securities or portions of the Securities to be redeemed.

Securities and portions of Securities that are to be redeemed are convertible by
the Holder until 5:00 p.m., New York City time, on the second Business Day
immediately preceding the Redemption Date. If any Security selected for partial
redemption is converted in part before termination of the conversion right with
respect to the portion of the Security so selected, the converted portion of
such Security shall be deemed (so far as may be) to be the portion selected for
redemption and the Trustee shall select additional Securities to be redeemed in
the manner provided in the first paragraph of this Section 3.2 in an amount
equal to the Securities that would have been redeemed but for their conversion
prior to the termination of their conversion right. Securities which have been
converted during a selection of Securities to be redeemed may be treated by the
Trustee as outstanding for the purpose of such selection.

Section 3.3. Notice of Redemption.

At least 20 calendar days but not more than 60 calendar days before a Redemption
Date, the Company shall mail a notice of redemption by first-class mail, postage
prepaid, to each Holder of Securities to be redeemed. The notice of redemption
shall identify the Securities to be redeemed and shall state:

          (a)  the Redemption Date;

          (b)  the Redemption Price;

          (c)  the Conversion Rate and any adjustments thereto;

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

          (e)  that Securities called for redemption may be converted at any
     time prior to 5:00 p.m., New York City time, on the second Business Day
     preceding the Redemption Date;

                                       17


          (f)  that Holders who want to convert their Securities must satisfy
     the requirements set forth in Article XII;

          (g)  that Securities called for redemption must be surrendered to the
     Paying Agent to collect the Redemption Price;

          (h)  if fewer than all of the outstanding Securities are to be
     redeemed, the certificate numbers, if any, and principal amounts of the
     particular Securities to be redeemed;

          (i)  that, unless the Company defaults in making payment of such
     Redemption Price, interest and Additional Interest, if any, on Securities
     called for redemption shall cease to accrue on and after the Redemption
     Date;

          (j)  the CUSIP number(s) of the Securities; and

          (k)  any other information the Company wants to present.

At the Company's request, the Trustee shall give the notice of redemption in the
Company's name and at the Company's expense; provided, however, that the Company
makes such request at least five Business Days (unless a shorter period shall be
satisfactory to the Trustee) prior to the date by which such notice of
redemption must be given to Holders in accordance with this Section 3.3;
provided, further, that the text of the notice of redemption shall be prepared
by the Company.

Section 3.4. Effect of Notice of Redemption.

Once notice of redemption is given, Securities called for redemption become due
and payable on the Redemption Date and at the Redemption Price, except for
Securities which are converted in accordance with the terms of this Indenture.
Upon surrender to the Paying Agent, such Securities shall be paid at the
Redemption Price.

Section 3.5. Deposit of Redemption Price.

Prior to 10:00 a.m., New York City time, on the applicable Redemption Date, the
Company shall deposit with the Paying Agent (or if the Company or a Subsidiary
or an Affiliate of either of them is acting as the Paying Agent, shall segregate
and hold in trust as provided in Section 2.4) an amount of cash (in immediately
available funds if deposited on the Redemption Date) sufficient to pay the
aggregate Redemption Price of all Securities or portions thereof which are to be
redeemed as of such Redemption Date other than Securities or portions of
Securities called for redemption which on or prior thereto have been delivered
by the Company to the Trustee for cancellation or have been converted.

If the Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m.,
New York City time, on the applicable Redemption Date, cash sufficient to pay
the Redemption Price of any Securities for which notice of redemption is given,
then, on such Redemption Date, such Securities shall cease to be outstanding and
interest and Additional Interest, if any, on such Securities shall cease to
accrue, whether or not such Securities are delivered to the Paying Agent, and
the rights of the Holders in respect thereof shall terminate (other than the
right to receive the Redemption Price upon delivery of such Securities).

Section 3.6. Securities Redeemed in Part.

Any Certificated Security which is to be redeemed only in part shall be
surrendered at the office of the Paying Agent and the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such Security,
without charge, a new Security or Securities, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to the unredeemed
portion of the Security surrendered.

Section 3.7. Repayment to the Company.

To the extent that the aggregate amount of cash deposited by the Company
pursuant to Section 3.5 exceeds the aggregate Redemption Price of the Securities
or portions thereof which the Company is

                                       18


redeeming as of the Redemption Date, then, promptly after the Redemption Date,
the Paying Agent shall return any such excess to the Company together with
interest, if any, thereon.

Section 3.8. No Sinking Fund.

The Securities shall not have a sinking fund.

                                   ARTICLE IV

                        PURCHASE AT THE OPTION OF HOLDERS
                                ON SPECIFIC DATES

Section 4.1. Optional Put.

(a)  Each Holder shall have the right, at the Holder's option, but subject to
     the provisions of this Section 4.1, to require the Company to purchase, and
     upon the exercise of such right, the Company shall purchase, all of such
     Holder's Securities not theretofore called for redemption, or any portion
     of the Principal Amount thereof that is equal to $1,000 or an integral
     multiple thereof, as directed by such Holder pursuant to this Section 4.1,
     on each of December 15, 2008, December 15, 2013 and December 15, 2018 (each
     a "PURCHASE DATE"). The Company shall be required to purchase such
     Securities at a purchase price in cash equal to 100% of the Principal
     Amount plus any accrued and unpaid cash interest (including any Additional
     Interest) to, but excluding, the Purchase Date (the "PURCHASE PRICE"). In
     the event that a Holder elects to require the Company to purchase such
     Holder's Securities, the Company shall be required to pay accrued and
     unpaid interest and Additional Interest, if any, to the holder of the
     repurchased Securities and not to the Holder on the Regular Record Date.

(b)  No later than 22 Business Days prior to each Purchase Date, the Company
     shall mail a written notice of the purchase right by first class mail to
     the Trustee (and the Paying Agent if the Trustee is not then acting as a
     Paying Agent) and to each Holder at its address shown in the Register of
     the Registrar, and to beneficial owners as required by applicable law. The
     notice shall include a form of Purchase Notice to be completed by the
     Holder and shall briefly state, as applicable:

     (i)    the date by which the Purchase Notice must be delivered to the
            Paying Agent in order for a Holder to exercise the purchase right
            pursuant to this Section 4.1;

     (ii)   the Purchase Date;

     (iii)  the Purchase Price;

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

     (v)    the Conversion Rate and any adjustments thereto;

     (vi)   that the Securities as to which a Purchase Notice has been given may
            be converted into Common Stock if they are otherwise convertible
            pursuant to Article XII of this Indenture only if the Purchase
            Notice has been withdrawn in accordance with the terms of this
            Indenture;

     (vii)  that the Securities must be surrendered to the Paying Agent to
            collect payment;

     (viii) that the Purchase Price for any Security as to which a Purchase
            Notice has been duly given and not withdrawn shall be paid promptly
            following the later of the Purchase Date and the time of surrender
            of such Security as described in Section 4.1(b)(vii);

     (ix)   the procedures the Holder must follow to exercise its rights under
            this Section 4.1 and a brief description of such rights;

                                       19

     (x)    briefly, the conversion rights of the Securities, if any, and that
            the Holder must satisfy the requirements set forth in the Indenture
            in order to convert the Securities;

     (xi)   the procedures for withdrawing a Purchase Notice, including a form
            of notice of withdrawal;

     (xii)  that, unless the Company defaults in making payment of such Purchase
            Price, interest (including any Additional Interest), if any, on
            Securities surrendered for purchase by the Company shall cease to
            accrue on and after the Purchase Date; and

     (xiii) the CUSIP number(s) of the Securities.

            At the Company's request, the Trustee shall give the notice of
            purchase right in the Company's name and at the Company's expense;
            provided, however, that the Company makes such request at least five
            Business Days (unless a shorter period shall be satisfactory to the
            Trustee) prior to the date by which such notice of purchase right
            must be given to the Holders in accordance with this Section 4.1(b);
            provided, further, that the text of the notice of purchase right
            shall be prepared by the Company.

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

            Simultaneously with delivering the written notice pursuant to this
            Section 4.1(b), the Company shall publish a notice containing all
            information specified in such written notice in a newspaper of
            general circulation in New York, New York, or publish such
            information on the Company's website, or through such other public
            medium that reasonably could be expected to inform Holders of such
            information.

(c)  A Holder may exercise its rights specified in clause (a) of this Section
     4.1 upon delivery of a written notice (which shall be in substantially the
     form included on the reverse side of the Securities entitled "Option of
     Holder to Elect Purchase" hereto and which may be delivered by letter,
     overnight courier, hand delivery, facsimile transmission or in any other
     written form and, in the case of Global Securities, may be delivered
     electronically or by other means in accordance with the Depositary's
     customary procedures) of the exercise of such rights (a "PURCHASE NOTICE")
     to the Paying Agent at any time from the opening of business on the date
     that is 22 Business Days prior to the relevant Purchase Date until the
     close of business on the second Business Day prior to such Purchase Date.

     The Purchase Notice delivered by a Holder shall state (i) the relevant
     Purchase Date, (ii) if certificated Securities, the certificate number or
     numbers of the Security or Securities which the Holder shall deliver to be
     purchased (if not certificated, the notice must comply with Applicable
     Procedures), (iii) the portion of the Principal Amount of the Security
     which the Holder shall deliver to be purchased, which portion must be
     $1,000 or an integral multiple thereof, and (iv) that such Security shall
     be purchased pursuant to the terms and conditions specified in the
     Securities and this Indenture.

     Delivery of a Security to the Paying Agent by book-entry transfer or
     physical delivery prior to, on or after the applicable Purchase Date
     (together with all necessary endorsements) at the offices of the Paying
     Agent is a condition to receipt by the Holder of the Purchase Price
     therefor; provided, however, that such Purchase Price shall be so paid
     pursuant to this Section 4.1 only if the Security so delivered to the
     Paying Agent shall conform in all respects to the description thereof in
     the related Purchase Notice, as determined by the Company.

     The Company shall purchase from the Holder thereof, pursuant to this
     Section 4.1, a portion of a Security if the Principal Amount of such
     portion is $1,000 or an integral multiple of $1,000. Provisions of this
     Indenture that apply to the purchase of all of a Security pursuant to
     Section 4.1 through Section 4.7 also apply to the purchase of such portion
     of such Security.

     The Paying Agent shall promptly notify the Company of the receipt by it of
     any Purchase Notice or written withdrawal thereof.

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

                                       20


Section 4.2. Effect of Purchase Notice; Withdrawal of Purchase Notice.

(a)  Upon receipt by the Paying Agent of the Purchase Notice specified in
     Section 4.1(c), the Holder of the Security in respect of which such
     Purchase Notice was given shall (unless such Purchase Notice is withdrawn
     as specified in the following paragraph) thereafter be entitled to receive
     solely the Purchase Price with respect to such Security. Such Purchase
     Price shall be paid to such Holder, subject to receipt of cash by the
     Paying Agent, promptly following the later of (a) the Purchase Date with
     respect to such Security (provided the conditions in Section 4.1(c) have
     been satisfied) and (b) the time of book-entry transfer or delivery of such
     Security to the Paying Agent by the Holder thereof in the manner required
     by Section 4.1(c). Securities in respect of which a Purchase Notice has
     been given by the Holder thereof may not be converted pursuant to Article
     XII on or after the date of the delivery of such Purchase Notice unless
     such Purchase Notice has first been validly withdrawn as specified in the
     following paragraph.

(b)  A Purchase Notice may be withdrawn by means of a written notice (which may
     be delivered by letter, overnight courier, hand delivery, facsimile
     transmission or in any other written form and, in the case of Global
     Securities, may be delivered electronically or by other means in accordance
     with the Depositary's customary procedures) of withdrawal delivered by the
     Holder to the Paying Agent at any time prior to the close of business on
     the Business Day immediately preceding the Purchase Date, specifying (a)
     the Principal Amount of the Security or portion thereof (which must be a
     Principal Amount of $1,000 or an integral multiple of $1,000 in excess
     thereof) with respect to which such notice of withdrawal is being
     submitted, (b) if certificated Securities have been issued, the certificate
     numbers of the withdrawn Securities, or if not certificated, such notice
     must comply with Applicable Procedures, and (c) the Principal Amount, if
     any, which remains subject to the Purchase Notice. If a Purchase Notice has
     been properly withdrawn pursuant to this Section 4.2(b) prior to the
     Purchase Date, the Company shall not be obligated to purchase those
     Securities so identified in such notice of withdrawal.

Section 4.3. Deposit of Purchase Price.

Prior to 10:00 a.m., New York City time, on the applicable Purchase Date, the
Company shall deposit with the Paying Agent (or if the Company or a Subsidiary
or an Affiliate of either of them is acting as the Paying Agent, shall segregate
and hold in trust as provided in Section 2.4) an amount of cash (in immediately
available funds if deposited on such Business Day) sufficient to pay the
aggregate Purchase Price of all the Securities or portions thereof which are to
be purchased as of such Purchase Date.

If the Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m.,
New York City time, on the applicable Purchase Date, cash sufficient to pay the
Purchase Price of any Securities for which a Purchase Notice has been tendered
and not withdrawn pursuant to Section 4.2(b), then, on such Purchase Date, such
Securities shall cease to be outstanding and interest and Additional Interest,
if any, on such Securities shall cease to accrue, whether or not such Securities
are delivered to the Paying Agent, and the rights of the Holders in respect
thereof shall terminate (other than the right to receive the Purchase Price upon
delivery of such Securities).

The Company shall publicly announce the Principal Amount of Securities purchased
on the applicable Purchase Date on such date or as soon as practicable
thereafter, by publishing a notice containing such information in a newspaper of
general circulation in New York, New York or by publishing such information on
the Company's website, or through such other public medium that reasonably could
be expected to inform Holders of such information.

Section 4.4. Securities Purchased in Part.

Any Certificated Security which is to be purchased only in part shall be
surrendered at the office of the Paying Agent (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 such Holder's attorney duly authorized in writing) and promptly after
the applicable Purchase Date the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without charge, a new
Security or Securities, of any authorized denomination or denominations as may
be requested by such Holder, in aggregate principal amount equal to, and in
exchange for, the portion of the Principal Amount of the Security so surrendered
that is not purchased.

                                       21



Section 4.5. Covenant to Comply With Securities Laws Upon Purchase of
Securities.

When complying with the provisions of Section 4.1 hereof (provided that such
offer or purchase constitutes an "issuer tender offer" for purposes of Rule
13e-4 (which term, as used herein, includes any successor provision thereto)
under the Exchange Act at the time of such offer or purchase), and subject to
any exemptions available under applicable law, the Company shall:

                  (a) if applicable, comply with Rule 13e-4 and Rule 14e-1 (or
         any successor provision) under the Exchange Act;

                  (b) file the related Schedule TO (or any successor schedule,
         form or report) if required under the Exchange Act; and

                  (c) otherwise comply with all United States federal and state
         securities laws so as to permit the rights and obligations under this
         Article IV to be exercised in the time and in the manner specified
         therein.

Section 4.6. Repayment to the Company.

To the extent that the aggregate amount of cash deposited by the Company
pursuant to Section 4.3 exceeds the aggregate Purchase Price of the Securities
or portions thereof which the Company is obligated to purchase as of the
applicable Purchase Date, then, promptly after such Purchase Date, the Paying
Agent shall return any such excess to the Company, together with interest, if
any, thereon.

Section 4.7. No Purchase Upon Event of Default.

There shall be no purchase of any Securities pursuant to this Article IV if
there has occurred (prior to, on or after, as the case may be, the giving by
each of the Holders of such Securities of the required Purchase Notice but, in
any event, prior to the applicable Purchase Date) and is continuing, as of such
Purchase Date, an Event of Default (other than a default in the payment of the
Purchase Price with respect to such Securities). The Paying Agent shall promptly
return to the respective Holders thereof any Securities (a) with respect to
which a Purchase Notice has been delivered in compliance with this Indenture, or
(b) held by it during the continuance of an Event of Default (other than a
default in the payment of the Purchase Price with respect to such Securities),
in which case, upon such return, the Purchase Notice with respect thereto shall
be deemed to have been withdrawn.

                                   ARTICLE V

                        PURCHASE AT THE OPTION OF HOLDERS
                             UPON A DESIGNATED EVENT

Section 5.1. Designated Event Put.

(a)  In the event that a Designated Event shall occur at any time prior to
     December 15, 2023, each Holder shall have the right, at the Holder's
     option, but subject to the provisions of this Section 5.1, to require the
     Company to purchase, and upon the exercise of such right, the Company shall
     purchase, all of such Holder's Securities not theretofore called for
     redemption, or any portion of the Principal Amount thereof that is equal to
     $1,000 or an integral multiple thereof, as directed by such Holder pursuant
     to this Section 5.1, on the date designated by the Company (the "DESIGNATED
     EVENT PURCHASE DATE") that is a Business Day no later than 35 Business Days
     after the date of notice pursuant to Section 5.1(b) of the occurrence of a
     Designated Event (subject to extension to comply with applicable law). The
     Company shall be required to purchase such Securities at a purchase price
     in cash equal to 100% of the Principal Amount plus any accrued and unpaid
     interest (including any Additional Interest) to, but excluding, the
     Designated Event Purchase Date (the "DESIGNATED EVENT PURCHASE PRICE"). In
     the event that a Designated Event Purchase Date is a date that is after any
     Regular Record Date but on or before the corresponding Interest Payment
     Date, the Company shall be required to pay accrued and unpaid interest and
     Additional Interest, if any, to the holder of the repurchased Security and
     not the Holder on the Regular Record Date.

                                       22


(b)  No later than 20 calendar days after the occurrence of a Designated Event,
     the Company shall mail a written notice of the Designated Event by first
     class mail to the Trustee (and the Paying Agent if the Trustee is not then
     acting as Paying Agent) and to each Holder at its address shown in the
     Register of the Registrar, and to beneficial owners as required by
     applicable law. The notice shall include a form of Designated Event
     Purchase Notice to be completed by the Holder and shall briefly state, as
     applicable:

     (i)    the date of such Designated Event and, briefly, the events causing
            such Designated Event;

     (ii)   the date by which the Designated Event Purchase Notice must be
            delivered to the Paying Agent in order for a Holder to exercise the
            purchase right pursuant to this Section 5.1;

     (iii)  the Designated Event Purchase Date;

     (iv)   the Designated Event Purchase Price;

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

     (vi)   the Conversion Rate and any adjustments thereto;

     (vii)  that the Securities as to which a Designated Event Purchase Notice
            has been given may be converted into Common Stock pursuant to
            Article XII of this Indenture only if the Designated Event Purchase
            Notice has been withdrawn in accordance with the terms of this
            Indenture;

     (viii) that the Securities must be surrendered to the Paying Agent to
            collect payment;

     (ix)   that the Designated Event Purchase Price for any Security as to
            which a Designated Event Purchase Notice has been duly given and not
            withdrawn shall be paid promptly following the later of the
            Designated Event Purchase Date and the time of surrender of such
            Security as described in Section 5.1(b)(viii);

     (x)    the procedures the Holder must follow to exercise rights under this
            Section 5.1 and a brief description of such rights;

     (xi)   briefly, the conversion rights of the Securities, and that the
            Holder must satisfy the requirements set forth in the Indenture in
            order to convert the Securities;

     (xii)  the procedures for withdrawing a Designated Event Purchase Notice,
            including a form of notice of withdrawal;

     (xiii) that, unless the Company defaults in making payment of such
            Designated Event Purchase Price, interest (including any Additional
            Interest), if any, on Securities surrendered for purchase by the
            Company shall cease to accrue on and after the Designated Event
            Purchase Date; and

     (xiv)  the CUSIP number(s) of the Securities.

            At the Company's request, the Trustee shall give the notice of
     purchase right in the Company's name and at the Company's expense;
     provided, however, that the Company makes such request at least five
     Business Days (unless a shorter period shall be satisfactory to the
     Trustee) prior to the date by which such notice of purchase right must be
     given to the Holders in accordance with this Section 5.1(b); provided,
     further, that the text of the notice of purchase right shall be prepared by
     the Company.

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

                                       23

     Simultaneously with delivering the written notice pursuant to this Section
     5.1(b), the Company shall publish a notice containing all information
     specified in such written notice in a newspaper of general circulation in
     New York, New York or publish such information on the Company's website, or
     through such other public medium that reasonably could be expected to
     inform Holders of such information.

(c)  A Holder may exercise its rights specified in clause (a) of this Section
     5.1 upon delivery of a written notice (which shall be in substantially the
     form included on the reverse side of the Securities entitled "Option of
     Holder to Elect Purchase" hereto and which may be delivered by letter,
     overnight courier, hand delivery, facsimile transmission or in any other
     written form and, in the case of Global Securities, may be delivered
     electronically or by other means in accordance with the Depositary's
     customary procedures) of the exercise of such rights (a "DESIGNATED EVENT
     PURCHASE NOTICE") to the Paying Agent at any time on or before the 20th
     Business Day after the date of the Company's notice of the Designated Event
     (subject to extension to comply with applicable law).

                  The Designated Event Purchase Notice delivered by a Holder
     shall state (i) the Designated Event Purchase Date, (ii) if certificated
     Securities, the certificate number or numbers of the Security or Securities
     which the Holder shall deliver to be purchased (if not certificated, the
     notice must comply with Applicable Procedures), (iii) the portion of the
     Principal Amount of the Security which the Holder shall deliver to be
     purchased, which portion must be $1,000 or an integral multiple thereof,
     and (iv) that such Security shall be purchased pursuant to the terms and
     conditions specified in the Securities and this Indenture.

                  Delivery of a Security (together with all necessary
     endorsements) to the Paying Agent by book-entry transfer or physical
     delivery prior to, on or after the Designated Event Purchase Date at the
     offices of the Paying Agent is a condition to receipt by the Holder of the
     Designated Event Purchase Price therefor; provided, however, that such
     Designated Event Purchase Price shall be so paid pursuant to this Section
     5.1 only if the Security so delivered to the Paying Agent shall conform in
     all respects to the description thereof in the related Designated Event
     Purchase Notice, as determined by the Company.

                  The Company shall purchase from the Holder thereof, pursuant
     to this Section 5.1, a portion of a Security if the Principal Amount of
     such portion is $1,000 or an integral multiple of $1,000. Provisions of the
     Indenture that apply to the purchase of all of a Security pursuant to
     Section 5.1 through Section 5.6 also apply to the purchase of such portion
     of such Security.

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

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

Section 5.2. Effect of Designated Event Purchase Notice.

(a)  Upon receipt by the Paying Agent of the Designated Event Purchase Notice
     specified in Section 5.1(c), the Holder of the Security in respect of which
     such Designated Event Purchase Notice was given shall (unless such
     Designated Event Purchase Notice is withdrawn as specified in the following
     paragraph) thereafter be entitled to receive the Designated Event Purchase
     Price with respect to such Security. Such Designated Event Purchase Price
     shall be paid to such Holder, subject to receipt of cash by the Paying
     Agent, promptly following the later of (a) the Designated Event Purchase
     Date with respect to such Security (provided the conditions in Section
     5.1(c) have been satisfied) and (b) the time of book-entry transfer or
     delivery of such Security to the Paying Agent by the Holder thereof in the
     manner required by Section 5.1(c). Securities in respect of which a
     Designated Event Purchase Notice has been given by the Holder thereof may
     not be converted pursuant to Article XII on or after the date of the
     delivery of such Designated Event Purchase Notice unless such Designated
     Event Purchase Notice has first been validly withdrawn as specified in the
     following paragraph.

(b)  A Designated Event Purchase Notice may be withdrawn by means of a written
     notice (which may be delivered by letter, overnight courier, hand delivery,
     facsimile transmission or in any other written form and, in the case of
     Global Securities, may be delivered electronically or by other means in
     accordance with the Depositary's customary procedures) of withdrawal
     delivered by the Holder to the Paying Agent at any time prior to the close
     of business on the Business Day immediately preceding the Designated Event
     Purchase Date, specifying (a) the Principal Amount of the Security or
     portion thereof (which must be a Principal Amount of $1,000 or an integral

                                       24


     multiple of $1,000 in excess thereof) with respect to which such notice of
     withdrawal is being submitted, (b) if certificated Securities have been
     issued, the certificate numbers of the withdrawn Securities, or if not
     certificated, such notice must comply with Applicable Procedures, and (c)
     the Principal Amount, if any, which remains subject to the Designated Event
     Purchase Notice. If a Designated Event Purchase Notice has been properly
     withdrawn pursuant to this Section 5.2(b) prior to the Designated Event
     Purchase Date, the Company shall not be obligated to purchase those
     Securities so identified in such notice of withdrawal.

Section 5.3. Deposit of Designated Event Purchase Price.

Prior to 10:00 a.m., New York City time, on the applicable the Designated Event
Purchase Date or the Business Day following the Designated Event Purchase Date,
the Company shall deposit with the Paying Agent (or if the Company or a
Subsidiary or an Affiliate of either of them is acting as the Paying Agent,
shall segregate and hold in trust as provided in Section 2.4) an amount of cash
(in immediately available funds if deposited on such Business Day) sufficient to
pay the aggregate Designated Event Purchase Price of all the Securities or
portions thereof which are to be purchased as of such Designated Event Purchase
Date.

If the Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m.,
New York City time, on the applicable Designated Event Purchase Date, cash
sufficient to pay the Designated Event Purchase Price of any Securities for
which a Designated Event Purchase Notice has been tendered and not withdrawn
pursuant to Section 5.2(b), then, on such Designated Event Purchase Date, such
Securities shall cease to be outstanding and interest and Additional Interest,
if any, on such Securities shall cease to accrue, whether or not such Securities
are delivered to the Paying Agent, and the rights of the Holders in respect
thereof shall terminate (other than the right to receive the Designated Event
Purchase Price upon delivery of such Securities).

The Company shall publicly announce the Principal Amount of Securities purchased
as a result of such Designated Event on or as soon as practicable after the
Designated Event Purchase Date by publishing a notice containing such
information in a newspaper of general circulation in New York, New York or by
publishing such information on the Company's website, or through such other
public medium that reasonably could be expected to inform Holders of such
information.

Section 5.4. Securities Purchased in Part.

Any Certificated Security that is to be purchased only in part shall be
surrendered at the office of the Paying Agent (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 such Holder's attorney duly authorized in writing) and promptly after
the Designated Event Purchase Date the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security, without charge, a
new Security or Securities, of any authorized denomination or denominations as
may be requested by such Holder, in aggregate Principal Amount equal to, and in
exchange for, the portion of the Principal Amount of the Security so surrendered
that is not purchased.

Section 5.5. Covenant to Comply With Securities Laws Upon Purchase of
Securities.

When complying with the provisions of Section 5.1 hereof (provided that such
offer or purchase constitutes an "issuer tender offer" for purposes of Rule
13e-4 (which term, as used herein, includes any successor provision thereto)
under the Exchange Act at the time of such offer or purchase), and subject to
any exemptions available under applicable law, the Company shall:

                  (a)      if applicable, comply with Rule 13e-4 and Rule 14e-1
         (or any successor provision) under the Exchange Act;

                  (b)      file the related Schedule TO (or any successor
         schedule, form or report) if required under the Exchange Act; and

                  (c)      otherwise comply with all United States federal and
         state securities laws so as to permit the rights and obligations under
         this Article V to be exercised in the time and in the manner specified
         therein.

                                       25


Section 5.6. Repayment to the Company.

To the extent that the aggregate amount of cash deposited by the Company
pursuant to Section 5.3 exceeds the aggregate Designated Event Purchase Price of
the Securities or portions thereof which the Company is obligated to purchase as
of the Designated Event Purchase Date then, promptly after the Designated Event
Purchase Date, the Paying Agent shall return any such excess to the Company
together with interest, if any, thereon.

                                   ARTICLE VI

                                    COVENANTS

Section 6.1. Payment of Securities.

The Company shall pay interest on the Securities as provided in the Securities.
The Company shall promptly make all payments in respect of the Securities on the
dates and in the manner provided in the Securities or pursuant to this
Indenture. Principal amount, Redemption Price, Purchase Price and Designated
Event Purchase Price and accrued and unpaid interest and Additional Interest, if
any, shall be considered paid on the applicable date due if by 10:00 a.m., New
York City time, on such date the Paying Agent holds, in accordance with this
Indenture, cash or securities, if permitted hereunder, sufficient to pay all
such amounts then due. The Company shall, to the fullest extent permitted by
law, pay interest on overdue principal and overdue installments of interest and
Additional Interest, if any, at the rate borne by the Securities per annum. All
references in this Indenture or the Securities to interest shall be deemed to
include Additional Interest, if any, payable pursuant to the Registration Rights
Agreement.

Payment of the principal of and interest and Additional Interest, if any, on the
Securities shall be in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts
or in Applicable Stock, as the case may be.

Subject to Section 3.1, Section 4.1 and and Section 5.1, the Company shall pay
interest and Additional Interest, if any, on the Securities to the Person in
whose name the Securities are registered at the close of business on the Regular
Record Date next preceding the corresponding Interest Payment Date. Any such
interest and Additional Interest, if any, not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and may be paid (a) to the Person in whose name the Securities are
registered at the close of business on a Special Record Date for the payment of
such defaulted interest and Additional Interest, if any, to be fixed by the
Trustee, notice whereof shall be given to the Holders not less than 10 calendar
days prior to such Special Record Date or (b) at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities may be listed, and upon such notice as may be required by
such exchange.

The Holder must surrender the Securities to the Paying Agent to collect payment
of principal. Payment of interest and Additional Interest, if any, on
Certificated Securities in the aggregate principal amount of $5,000,000 or less
shall be made by check mailed to the address of the Person entitled thereto as
such address appears in the Register, and payment of interest and Additional
Interest, if any, on Certificated Securities in aggregate principal amount in
excess of $5,000,000 shall be made by wire transfer in immediately available
funds at the election of such Holder. Notwithstanding the foregoing, so long as
the Securities are registered in the name of a Depositary or its nominee, all
payments with respect to the Securities shall be made by wire transfer of
immediately available funds to the account of the Depositary or its nominee.

Section 6.2. SEC and Other Reports to the Trustee.

(a)  The Company shall ensure delivery to the Trustee within 15 calendar days
     after it files such annual and quarterly reports, information, documents
     and other reports with the SEC, copies of its annual report and of the
     information, documents and other reports (or copies of such portions of any
     of the foregoing as the SEC may by rules and regulations prescribe) which
     the Company is required to file with the SEC pursuant to Section 13 or
     15(d) of the Exchange Act in accordance with TIA Section 314(a). In the
     event the Company is at any time no longer subject to the reporting
     requirements of Section 13 or 15(d) of the Exchange Act, it shall continue
     to provide the Trustee with reports containing substantially the same
     information as would have been required to be filed with the SEC had the
     Company continued to have been subject to such reporting requirements. In
     such

                                       26


     event, such reports shall be provided at the times the Company would have
     been required to provide reports had it continued to have been subject
     to such reporting requirements. The Company also shall comply with the
     other provisions of TIA Section 314(a). Delivery of such reports,
     information and documents to the Trustee is for informational purposes only
     and the Trustee's receipt of such shall not constitute constructive notice
     of any information contained therein or determinable from information
     contained therein, including the Company's compliance with any of its
     covenants hereunder (as to which the Trustee is entitled to rely
     conclusively on Officers' Certificates). The Trustee shall have no duty or
     responsibility to review such reports, information or documents.

(b)  The Company intends to file the reports referred to in paragraph (a) above
     in this Section 6.2 hereof with the SEC in electronic form pursuant to
     Regulation S-T of the SEC using the SEC's Electronic Data Gathering,
     Analysis and Retrieval ("EDGAR") system. The Company shall notify the
     Trustee in the manner prescribed herein of each such filing. The Trustee is
     hereby authorized and directed to access the EDGAR system for purposes of
     retrieving the reports so filed. Compliance with the foregoing shall
     constitute delivery by the Company of such reports to the Trustee in
     compliance with the provisions of TIA Section 314(a). The Trustee shall
     have no duty to search for or obtain any electronic or other filings that
     the Company makes with the SEC, regardless of whether such filings are
     periodic, supplemental or otherwise. Delivery of the reports, information
     and documents to the Trustee pursuant to this Section 6.2(b) shall be
     solely for the purposes of compliance with this Section 6.2(b) and with TIA
     Section 314(a). The Trustee's receipt of such reports, information and
     documents shall not constitute notice to it of the consent thereof or of
     any matter determinable from the content thereof, including the Company's
     compliance with any of its covenants hereunder, as to which the Trustee is
     entitled to rely upon Officers' Certificates.

Section 6.3. Compliance Certificate.

The Company shall deliver to the Trustee within 120 calendar days after the end
of each fiscal year of the Company an Officers' Certificate, stating whether or
not to the knowledge of the signers thereof, the Company is in compliance with
all conditions and covenants under this Indenture.

Section 6.4. Further Instruments and Acts.

Upon request of the Trustee, or as otherwise necessary, 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.

Section 6.5. Maintenance of Office or Agency of the Trustee, Registrar, Paying
Agent and Conversion Agent.

The Company shall maintain in the Borough of Manhattan, New York, New York, an
office or agency of the Trustee, Registrar, Paying Agent and Conversion Agent
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer, exchange, redemption,
repurchase or conversion and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The office of
Wilmington Trust Company located in New York City at 520 Madison Avenue, 33rd
Floor, New York, NY 10022, shall initially be such office or agency for all of
the aforesaid purposes. The Company shall give prompt written notice to the
Trustee of the location, and of any change in the location, of any such office
or agency (other than a change in the location of the office of the Trustee). If
at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13.2.

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 shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, New York, New York, for such purposes.

                                       27


Section 6.6. Delivery of Information Required Under Rule 144A.

At any time when the Company is not subject to Section 13 or 15(d) of the
Exchange Act, upon the request of a Holder or any beneficial owner of Securities
or holder or beneficial owner of Common Stock issued upon conversion thereof,
the Company shall promptly furnish or cause to be furnished the information
required pursuant to Rule 144A(d)(4) under the Securities Act to such Holder or
any beneficial owner of Securities or holder or beneficial owner of Common
Stock, or to a prospective purchaser of any such security designated by any such
holder, as the case may be, to the extent required to permit compliance by such
Holder or holder with Rule 144A under the Securities Act in connection with the
resale of any such security. Whether a person is a beneficial owner shall be
determined by the Company to the Company's reasonable satisfaction.

Section 6.7. Waiver of Stay, Extension or Usury Laws.

The Company covenants (to the extent that it may lawfully do so) that it shall
not at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the principal amount,
Redemption Price, Purchase Price or Designated Event Purchase Price in respect
of Securities, or any interest and Additional Interest, if any, on such amounts,
as contemplated herein, 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 shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.

Section 6.8. Statement by Officers as to Default.

The Company shall deliver to the Trustee, as soon as practicable and in any
event within five Business Days after the Company becomes aware of the
occurrence of any Default or Event of Default, an Officers' Certificate setting
forth the details of such Default or Event of Default and the action which the
Company proposes to take with respect thereto.

                                  ARTICLE VII

                              SUCCESSOR CORPORATION

Section 7.1. When Company May Merge or Transfer Assets.

The Company shall not consolidate with or merge with or into any other person or
convey, transfer, sell, lease or otherwise dispose of all or substantially all
of its properties and assets to any person, unless:

                  (a)      either (i) the Company shall be the continuing
         corporation or (ii) the Person (if other than the Company) formed by
         such consolidation or into which the Company is merged or the Person
         which acquires by conveyance, transfer, sale, lease or other
         disposition all or substantially all of the properties and assets of
         the Company substantially as an entirety (1) shall be organized and
         validly existing under the laws of the United States or any State
         thereof or the District of Columbia and (2) shall expressly assume, by
         an indenture supplemental hereto, executed and delivered to the
         Trustee, in form reasonably satisfactory to the Trustee, all of the
         obligations of the Company under the Securities and this Indenture;

                  (b)      immediately after giving effect to such transaction,
         no Default shall have occurred and be continuing; and

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

                                       28


For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of the properties and assets of one or more Subsidiaries, which, if
such assets were owned by the Company, together with the assets of all of the
other Subsidiaries of the Company, would constitute all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company unless such
transfer is to the Company or another Subsidiary. The successor Person formed by
such consolidation or into which the Company is merged or the successor Person
to which such conveyance, transfer, sale, 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, sale, lease or other disposition and any obligations 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 11.6, the Company, the Trustee and the successor Person shall
enter into a supplemental indenture to evidence the succession and substitution
of such successor Person and such discharge and release of the Company.

                                  ARTICLE VIII

                              DEFAULTS AND REMEDIES

Section 8.1. Events of Default.

So long as any Securities are outstanding, each of the following shall be an
"EVENT OF DEFAULT":

                  (a)      the Company defaults in the payment of the principal
         amount of any Security when the same becomes due and payable as therein
         provided or as provided in this Indenture, whether at Stated Maturity
         or by declaration of acceleration;

                  (b)      the Company defaults in the payment of any accrued
         and unpaid interest on any Security and Additional Interest, if any, in
         each case, when due and payable, and such default shall continue for a
         period of 30 days;

                  (c)      the Company fails to convert any portion of the
         principal amount of any Security following the exercise by the Holder
         of the right to convert such Security into Common Stock pursuant to and
         in accordance with Article XII unless the Company elects pursuant to
         Section 12.13, to deliver, in lieu of Common Stock, cash or a
         combination of cash and Common Stock, and fails to deliver such cash or
         such combination of cash and Common Stock;

                  (d)      the Company defaults in its obligation to redeem any
         Security, or any portion thereof, called for redemption by the Company
         pursuant to and in accordance with Article III and;

                  (e)      the Company defaults in its obligation to purchase
         any Security, or any portion thereof, upon the exercise by the Holder
         of such Holder's right to require the Company to purchase such
         Securities pursuant to and in accordance with Article IV or Article V;

                  (f)      the Company defaults in its obligation to provide
         notice in the event of a Designated Event in accordance with Section
         5.1(b);

                  (g)      there shall be a default in the performance, or
         breach, of any covenant or agreement of the Company under this
         Indenture (other than a default in the performance or breach of a
         covenant or agreement which is specifically dealt with in clause (a),
         (b), (d) or (e)) and such default or breach shall continue for a period
         of 60 days after written notice has been given, by certified mail, (1)
         to the Company by the Trustee or (2) to the Company and the Trustee by
         the Holders of at least 25% in aggregate principal amount of the
         Securities then outstanding;

                                       29

                  (h)      there shall have occurred a default under any credit
         agreement, mortgage, indenture or instrument under which there may be
         issued or by which there may be secured or evidenced any Indebtedness
         of the Company or any of its Subsidiaries whether such Indebtedness now
         exists, or is created after the date of this Indenture, which default
         (i) involves the failure to pay principal of or any premium or interest
         on such Indebtedness in an amount in excess of $7.5 million when such
         Indebtedness becomes due and payable at the stated maturity thereof,
         and such default shall continue after any applicable grace period or
         (ii) results in the acceleration of such Indebtedness unpaid prior to
         the stated maturity thereof (without such acceleration being rescinded
         or annulled) and, in the case of (ii), the principal amount of such
         Indebtedness, together with the principal amount of any other
         Indebtedness so unpaid at its stated maturity or the stated maturity of
         which has been so accelerated, aggregates $10,000,000 or more;

                  (i)      there shall be a failure by the Company or any of its
         Subsidiaries to pay final judgments not covered by insurance
         aggregating in excess of $7,500,000, which judgments are not paid,
         discharged or stayed for a period of 60 calendar days; and

                  (j)      the Company or any Designated Subsidiary, or any
         group of two or more Subsidiaries that, taken as a whole, would
         constitute a Designated Subsidiary, pursuant to or under or within the
         meaning of any Bankruptcy Law:

          (i)   commences a voluntary case or proceeding;

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

          (iii) consents to the appointment of a Custodian of it or for any
                substantial part of its property;

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

          (v)   files a petition in bankruptcy or answer or consent seeking
                reorganization or relief; or

          (vi)  consents to the filing of such petition or the appointment of or
                taking possession by a Custodian; or

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

          (i)   is for relief against the Company or any Designated Subsidiary
                in an involuntary case or proceeding, or adjudicates the Company
                or any Designated Subsidiary insolvent or bankrupt;

          (ii)  appoints a Custodian of the Company or any Designated Subsidiary
                or for any substantial part of the property of either; or

          (iii) orders the winding up or liquidation of the Company or any
                Designated Subsidiary,

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

Section 8.2. Acceleration.

If an Event of Default (other than an Event of Default specified in Section
8.1(j) or Section 8.1(k) with respect to the Company) occurs and is continuing
(including an Event of Default specified in Section 8.1(j) or Section 8.1(k)
with respect to one or more Designated Subsidiaries), the Trustee by notice to
the Company, or the Holders of at least 25% in aggregate principal amount of the
Securities at the time outstanding by notice to the Company and the Trustee, may
declare the principal amount plus accrued and unpaid interest and Additional
Interest, if any, on all the Securities to be immediately due and payable.

                                       30


Upon such a declaration, such accelerated amount shall be due and payable
immediately.

If an Event of Default specified in Section 8.1(j) or Section 8.1(k) occurs with
respect to the Company and is continuing, the principal amount plus accrued and
unpaid interest and Additional Interest, if any, on all the Securities shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holders.

The Holders of a majority in aggregate principal amount of the Securities at the
time outstanding, by notice to the Trustee (and without notice to any other
Holder) may rescind an acceleration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
have been cured or waived except nonpayment of the principal amount plus accrued
and unpaid interest and Additional Interest, if any, that have become due solely
as a result of acceleration and if all amounts due to the Trustee under Section
9.7 have been paid. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.

Section 8.3. Other Remedies.

If an Event of Default occurs and is continuing, the Trustee may, but shall not
be obligated to, pursue any available remedy to collect the payment of the
principal amount plus accrued and unpaid interest and Additional Interest, if
any, on the Securities or to enforce the performance of any provision of the
Securities or this Indenture.

The Trustee may maintain a proceeding even if the Trustee does not possess any
of the Securities or does not produce any of the Securities in the proceeding. 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
constitute a waiver of, or acquiescence in, the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.

Section 8.4. Waiver of Past Defaults.

Subject to Section 8.7 and Section 11.2, the Holders of a majority in aggregate
principal amount of the Securities at the time outstanding, by notice to the
Trustee (and without notice to any other Holder), may waive an existing Default
and its consequences except:

                  (a)      an Event of Default described in Section 8.1(a),
         Section 8.1(b), Section 8.1(d) or Section 8.1(e);

                  (b)      a Default which constitutes a failure to convert any
         Security in accordance with the terms of Article XII; or

                  (c)      a Default in respect of any provision of this
         Indenture or the Securities, which, under Section 11.2, cannot be
         amended or modified without the consent of each Holder affected
         thereby.

When a Default is waived, it is deemed cured, but no such waiver shall extend to
any subsequent or other Default or impair any consequent right. This Section 8.4
shall be in lieu of Section 316(a)1(B) of the TIA and such Section 316(a)1(B) is
hereby expressly excluded from this Indenture, as permitted by the TIA.

Section 8.5. Control by Majority.

The Holders of a majority in aggregate principal amount of the Securities at the
time outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee
determines in good faith is prejudicial to the rights of other Holders or would
involve the Trustee in personal liability unless the Trustee is provided
indemnity satisfactory to it. This Section 8.5 shall be in lieu of Section
316(a)1(A) of the TIA and such Section 316(a)1(A) is hereby expressly excluded
from this Indenture, as permitted by the TIA.

Section 8.6. Limitation on Suits.

A Holder may not pursue any remedy with respect to this Indenture or the
Securities unless:

                  (a)      the Holder gives to the Trustee written notice
         stating that an Event of Default is continuing;

                                       31


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

                  (c)      such Holder or Holders provide to the Trustee
         security or indemnity satisfactory to the Trustee against any loss,
         liability or expense;

                  (d)      the Trustee does not comply with the request within
         60 days after receipt of such notice, request and offer of security or
         indemnity; and

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

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

Section 8.7. Rights of Holders to Receive Payment or to Convert.

Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of the principal amount, Redemption Price, Purchase Price,
Designated Event Purchase Price or interest and Additional Interest, if any, in
respect of the Securities held by such Holder, on or after the respective due
dates expressed in the Securities and in this Indenture, and to convert such
Securities in accordance with Article XII, or to bring suit for the enforcement
of any such payment on or after such respective dates or the right to convert,
is absolute and unconditional and shall not be impaired or affected adversely
without the consent of such Holder.

Section 8.8. Collection Suit by Trustee.

If an Event of Default described in Section 8.1(a), Section 8.1(b), Section
8.1(d) or Section 8.1(e) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or another obligor on the Securities for the whole amount owing with respect to
the Securities and the amounts provided for in Section 9.7.

Section 8.9. Trustee May File Proofs of Claim.

In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal amount, Redemption
Price, Purchase Price, Designated Event Purchase Price or interest and
Additional Interest, if any, in respect of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
any such amount) shall be entitled and empowered, by intervention in such
proceeding or otherwise:

                  (a)      to file and prove a claim for the whole amount of the
         principal amount, Redemption Price, Purchase Price, Designated Event
         Purchase Price, or interest and Additional Interest, if any, and to
         file such other papers or documents as may be necessary or advisable in
         order to have the claims of the Trustee (including any claim for the
         reasonable compensation, expenses, disbursements and advances of the
         Trustee, its agents and counsel or any other amounts due the Trustee
         under Section 9.7) and of the Holders allowed in such judicial
         proceeding, and

                  (b)      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
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 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 9.7.

                                       32


Nothing contained herein 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.

Section 8.10. Priorities.

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

                  FIRST: to the Trustee for amounts due under Section 9.7;

                  SECOND: to Holders for amounts due and unpaid on the
         Securities for the principal amount, Redemption Price, Purchase Price,
         Designated Event Purchase Price or interest and Additional Interest, if
         any, as the case may be, ratably, without preference or priority of any
         kind, according to such amounts due and payable on the Securities; and

                  THIRD:  the balance, if any, to the Company.

The Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 8.10. At least 10 calendar days prior to such record
date, the Trustee shall mail to each Holder and the Company a notice that states
the record date, the payment date and the amount to be paid.

Section 8.11. Undertaking for Costs.

In any suit for the enforcement of any right or remedy under this Indenture or
in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
(other than the Trustee) in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section 8.11 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 8.7 or a suit by Holders of more than 10%
in aggregate principal amount of the Securities at the time outstanding. This
Section 8.11 shall be in lieu of Section 315(e) of the TIA and such Section
315(e) is hereby expressly excluded from this Indenture, as permitted by the
TIA.

                                   ARTICLE IX

                                     TRUSTEE

Section 9.1. Duties of Trustee.

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

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

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

     (ii) in the absence of bad faith on its part, the Trustee may conclusively
          rely, as to the truth of the statements and the correctness of the
          opinions expressed therein, upon certificates or opinions furnished to
          the Trustee and conforming to the requirements of this Indenture, but
          in the case of any such certificates or opinions which by any
          provision hereof are specifically required to be furnished to the
          Trustee, the Trustee shall examine the certificates and opinions to
          determine whether or not they conform to the requirements of this
          Indenture, but need not confirm or investigate the accuracy of
          mathematical calculations or other facts stated therein.

This Section 9.1(b) shall be in lieu of Section 315(a) of the TIA and such
Section 315(a) is hereby expressly excluded from this Indenture, as permitted by
the TIA.

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

                                       33

     (i)  this clause (c) does not limit the effect of clause (b) of this
          Section 9.1;

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

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

Subparagraphs (c)(i), (ii) and (iii) shall be in lieu of Sections 315(d)(1),
315(d)(2) and 315(d)(3) of the TIA, respectively, and such Sections 315(d)(1),
315(d)(2) and 315(d)(3) are hereby expressly excluded from this Indenture, as
permitted by the TIA.

(d)  The Trustee may refuse to perform any duty or exercise any right or power
     or extend or risk its own funds or otherwise incur any financial liability
     unless it receives indemnity reasonably satisfactory to it against any
     loss, liability or expense.

(e)  Money held by the Trustee in trust hereunder need not be segregated from
     other funds except to the extent required by law. The Trustee (acting in
     any capacity hereunder) shall be under no liability for interest on any
     money received by it hereunder unless otherwise agreed in writing with the
     Company.

(f)  The Trustee shall comply with the reporting requirements set forth in
     Section 313 of the TIA.

Section 9.2. Rights of Trustee.

Subject to its duties and responsibilities under the TIA and this Indenture,

                  (a)      the Trustee may conclusively rely and shall be
         protected in acting or refraining from acting upon any resolution,
         certificate, statement, instrument, opinion, report, notice, request,
         direction, consent, order, bond, debenture, note, other evidence of
         indebtedness or other paper or document believed by it to be genuine
         and to have been signed or presented by the proper party or parties;

                  (b)      whenever in the administration of this Indenture the
         Trustee shall deem it desirable that a matter be proved or established
         prior to taking, suffering or omitting any action hereunder, the
         Trustee (unless other evidence be herein specifically prescribed) may,
         in the absence of bad faith on its part, conclusively rely upon an
         Officers' Certificate;

                  (c)      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 with due care by it hereunder;

                  (d)      the Trustee shall not be liable for any action taken,
         suffered, or omitted to be taken by it in good faith which it
         reasonably believes to be authorized or within its rights or powers
         conferred under this Indenture;

                  (e)      the Trustee may consult with counsel selected by it
         and any advice or Opinion of Counsel shall be full and complete
         authorization and protection in respect of any action taken or suffered
         or omitted by it hereunder in good faith and in reliance on such advice
         or Opinion of Counsel;

                  (f)      the Trustee shall be under no obligation to exercise
         any of the rights or powers vested in it by this Indenture at the
         request, 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 or indemnity satisfactory to it against the
         costs, expenses and liabilities which may be incurred therein or
         thereby;

                                       34


                  (g)      any request or direction of the Company mentioned
         herein shall be sufficiently evidenced by a Company Request or Company
         Order and any resolution of the Board of Directors may be sufficiently
         evidenced by a Board Resolution;

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

                  (i)      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 this Indenture;

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

                  (k)      the Trustee may request that the Company deliver an
         Officers' Certificate setting forth the names of individuals and/or
         titles of officers authorized at such time to take specified actions
         pursuant to this Indenture, which Officers' Certificate may be signed
         by any person authorized to sign an Officers' Certificate, including
         any person specified as so authorized in any such certificate
         previously delivered and not superseded.

Section 9.3. Individual Rights of Trustee.

The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or its Affiliates
with the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar, Conversion Agent or co-registrar may do the same with like rights.
However, the Trustee must comply with Section 9.10 and Section 9.11.

Section 9.4. Trustee's Disclaimer.

The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the Company's use
or application of the proceeds from the Securities, it shall not be responsible
for any statement in any registration statement for the Securities under the
Securities Act or in any offering document for the Securities, this Indenture or
the Securities (other than its certificate of authentication), or the
determination as to which beneficial owners are entitled to receive any notices
hereunder.

Section 9.5. Notice of Defaults.

If a Default occurs and if it is known to the Trustee, the Trustee shall give to
each Holder notice of the Default within 90 calendar days after it occurs or, if
later, within 15 calendar days after it is known to the Trustee, unless such
Default shall have been cured or waived before the giving of such notice.
Notwithstanding the preceding sentence, except in the case of a Default
described in Section 8.1(a), Section 8.1(b), Section 8.1(d) or Section 8.1(e),
the Trustee may withhold the notice if and so long as the Responsible Officer in
good faith determines that withholding the notice is in the interest of the
Holders. The preceding sentence shall be in lieu of the proviso to Section
315(b) of the TIA and such proviso is hereby expressly excluded from this
Indenture, as permitted by the TIA.

                                       35


Section 9.6. Reports by Trustee to Holders.

Within 60 days after each May 15 beginning with the May 15 following the date of
this Indenture, the Trustee shall mail to each Holder a brief report dated as of
such May 15 that complies with TIA Section 313(a), if required by such Section
313(a). The Trustee also shall comply with TIA Section 313(b).

A copy of each report at the time of its mailing to Holders shall be filed with
the SEC and each securities exchange, if any, on which the Securities are
listed. The Company agrees to notify the Trustee promptly whenever the
Securities become listed on any securities exchange and of any delisting
thereof.

Section 9.7. Compensation and Indemnity.

                  The Company agrees to:

                  (a)      pay to the Trustee from time to time such
         compensation as the Company and the Trustee shall from time to time
         agree in writing for all services rendered by it hereunder (which
         compensation shall not be limited (to the extent permitted by law) by
         any provision of law in regard to the compensation of a trustee of an
         express trust);

                  (b)      reimburse the Trustee upon its request for all
         expenses, disbursements and advances incurred or made by the Trustee in
         accordance with any provision of this Indenture (including the
         compensation and the reasonable expenses, advances and disbursements of
         its agents and counsel), except any such expense, disbursement or
         advance as may be attributable to its own negligence or willful
         misconduct; and

                  (c)      fully indemnify the Trustee or any predecessor
         Trustee and their agents for, and to hold them harmless against, any
         and all loss, damage, claim, liability, cost or expense (including
         attorney's fees and expenses, and taxes (other than taxes based upon,
         measured by or determined by the income of the Trustee)) incurred
         without the Trustee's negligent action, negligent failure to act or
         willful misconduct, arising out of or in connection with the acceptance
         or administration of this trust, including the costs and expenses of
         defending itself against any claim (whether asserted by the Company or
         any Holder or any other person) or liability in connection with the
         exercise or performance of any of its powers or duties hereunder, or in
         connection with enforcing the provisions of this Section 9.7.

With regard to its indemnification rights under Section 9.7(c) where the Company
has assumed the defense in any action or proceeding, the Trustee shall have the
right to employ separate counsel in any such action or proceeding and
participate in the investigation and defense thereof, and the Company shall pay
the reasonable fees and expenses of such separate counsel; provided, however,
that the Trustee may only employ separate counsel at the expense of the Company
if in the judgment of the Trustee (i) a conflict of interest exists by reason of
common representation or (ii) there are legal defenses available to the Trustee
that are different from or are in addition to those available to the Company or
if all parties commonly represented do not agree as to the action (or inaction)
of counsel.

To secure the Company's payment obligations in this Section 9.7, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay the principal amount,
Redemption Price, Purchase Price, Designated Event Purchase Price or interest
and Additional Interest, if any, as the case may be, on particular Securities.

The Company's payment obligations pursuant to this Section 9.7 shall survive the
discharge of this Indenture and the resignation or removal of the Trustee. When
the Trustee incurs expenses after the occurrence of a Default specified in
Section 8.1(j) or Section 8.1(k), the expenses including the reasonable charges
and expenses of its counsel, are intended to constitute expenses of
administration under any Bankruptcy Law.

Section 9.8. Replacement of Trustee.

The Trustee may resign by so notifying the Company; provided, however, that no
such resignation shall be effective until a successor Trustee has accepted its
appointment pursuant to this Section 9.8. The

                                       36


Holders of a majority in aggregate principal amount of the Securities at the
time outstanding may remove the Trustee by so notifying the Trustee and the
Company. The Company shall remove the Trustee if:

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

     (b) the Trustee is adjudged bankrupt or insolvent;

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

     (d) the Trustee otherwise becomes incapable of acting.

If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint, by resolution of its
Board of Directors, a successor Trustee.

A successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company satisfactory in form and substance to the
retiring Trustee and the Company. Thereupon the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, upon payment of all the retiring Trustee's fees and expenses
then due and payable and subject to the lien provided for in Section 9.7.

If a successor Trustee does not take office within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of a majority in aggregate principal amount of the Securities at the time
outstanding may petition at the expense of the Company any court of competent
jurisdiction at the expense of the Company for the appointment of a successor
Trustee.

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

Section 9.9. Successor Trustee by Merger.

If the Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.

Section 9.10. Eligibility; Disqualification.

The Trustee and any successor Trustee shall at all times satisfy the
requirements of TIA Sections 310(a)(1) and 310(b). The Trustee (or its parent
holding company) shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. Nothing contained herein shall prevent the Trustee from filing with
the Commission the application referred to in the penultimate paragraph of TIA
Section 310(b). If at any time the Trustee shall cease to 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.

Section 9.11. Preferential Collection of Claims Against Company.

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

                                   ARTICLE X

                             DISCHARGE OF INDENTURE

Section 10.1. Discharge of Liability on Securities.

When (i) the Company delivers to the Trustee all outstanding Securities (other
than Securities replaced or repaid pursuant to Section 2.7) for cancellation or
(ii) all outstanding Securities have become due and payable (whether at the
Stated Maturity or upon acceleration, or on any Redemption Date, Purchase Date
or Designated Event Purchase Date, or upon conversion) and the Company deposits
with the Paying

                                       37


Agent or Conversion Agent cash or Applicable Stock sufficient to pay all amounts
due and owing on all outstanding Securities (other than Securities replaced
pursuant to Section 2.7), and if in either case the Company pays all other sums
payable hereunder by the Company, then this Indenture shall, subject to Section
9.7, cease to be of further effect. The Trustee shall join in the execution of a
document prepared by the Company acknowledging satisfaction and discharge of
this Indenture on demand of the Company accompanied by an Officers' Certificate
and Opinion of Counsel and at the cost and expense of the Company.

Section 10.2. Repayment to the Company.

The Trustee and the Paying Agent shall return to the Company upon written
request any cash or securities held by them for the payment of any amount with
respect to the Securities that remains unclaimed for two years, subject to
applicable unclaimed property law. After return to the Company, Holders entitled
to the cash or securities must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person
and the Trustee and the Paying Agent shall have no further liability to the
Holders with respect to such cash or securities for that period commencing after
the return thereof.

                                   ARTICLE XI

                                   AMENDMENTS

Section 11.1. Without Consent of Holders.

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

                  (a)      add to the covenants of the Company for the benefit
         of the Holders of Securities;

                  (b)      surrender any right or power herein conferred upon
         the Company;

                  (c)      provide for conversion rights of Holders of
         Securities if any reclassification or change of the Common Stock or any
         consolidation, merger or sale of all or substantially all of the
         Company's assets occurs;

                  (d)      provide for the assumption of the Company's
         obligations to the Holders of Securities in the case of a merger,
         consolidation, conveyance, transfer, sale, lease or other disposition
         pursuant to Article VII;

                  (e)      increase the Conversion Rate; provided, however, that
         such increase in the Conversion Rate shall not adversely affect the
         interests of the Holders of Securities (after taking into account tax
         and other consequences of such increase);

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

                  (g)      make any changes or modifications necessary in
         connection with the registration of the Securities under the Securities
         Act as contemplated in the Registration Rights Agreement; provided,
         however, that such action pursuant to this clause (g) does not, in the
         good faith opinion of the Board of Directors (as evidenced by a Board
         Resolution), adversely affect the interests of the Holders of
         Securities in any material respect;

                  (h)      cure any ambiguity, correct or supplement any
         provision herein which may be inconsistent with any other provision
         herein or which is otherwise defective, or to make any other provisions
         with respect to matters or questions arising under this Indenture which
         the Company may deem necessary or desirable and which shall not be
         inconsistent with the provisions of this Indenture; provided,

                                       38


         however, that such action pursuant to this clause (h) does not, in the
         good faith opinion of the Board of Directors (as evidenced by a Board
         Resolution), adversely affect the interests of the Holders of
         Securities in any material respect;

(i)  to evidence the succession of another Person to the Company or any
     other obligor upon the Securities, and the assumption by any such successor
     of the covenants of the Company or such obligor herein and in the
     Securities, in each case in compliance with the provisions of this
     Indenture;

(j)  to evidence and provide the acceptance of the appointment of a successor
     trustee hereunder; or

                  (k)      add or modify any other provisions herein with
         respect to matters or questions arising hereunder which the Company and
         the Trustee may deem necessary or desirable and which shall not
         adversely affect the interests of the Holders of Securities.

Section 11.2. With Consent of Holders.

Except as provided below in this Section 11.2, this Indenture or the Securities
may be amended, modified or supplemented, and noncompliance in any particular
instance with any provision of this Indenture or the Securities may be waived,
in each case with the written consent or affirmative vote of the Holders of at
least a majority of the principal amount of the Securities at the time
outstanding.

Without the written consent or the affirmative vote of each Holder of Securities
affected thereby (in addition to the written consent or the affirmative vote of
the holders of at least a majority of the principal amount of the Securities at
the time outstanding), an amendment or waiver under this Section 11.2 may not:

                  (a)      change the maturity of the principal amount of, or
         the payment date of any installment of interest or Additional Interest,
         if any, on, any Security;

                  (b)      reduce the principal amount of, or interest or
         Additional Interest, if any, on, or the Redemption Price, Purchase
         Price or Designated Event Purchase Price of, any Security;

                  (c)      change the currency of payment of principal amount
         of, or interest or Additional Interest, if any, on, or the Redemption
         Price, Purchase Price or Designated Event Purchase Price of, any
         Security from U.S. Dollars;

                  (d)      impair or adversely affect the rate of accrual of
         interest or Additional Interest, if any, on any Security, or the manner
         of calculation thereof;

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

                  (f)      impair or adversely affect the conversion rights of
         the Holder of the Securities as provided in Article XII;

                  (g)      impair or adversely affect the purchase rights of the
         Holders of the Securities as provided in Article IV or Article V;

                  (h)      modify the optional redemption provisions of Article
         III in a manner adverse to the Holders of the Securities;

                  (i)      reduce the percentage of the principal amount of the
         outstanding Securities the written consent or affirmative vote of whose
         Holders is required for any such supplemental indenture;

                                       39


                  (j)      reduce the percentage of the principal amount of the
         outstanding Securities the written consent or affirmative vote of whose
         Holders is required for any waiver of any past Default provided for in
         this Indenture; or

                  (k)      waive any matter set forth in Section 8.4(a), Section
         8.4(b), or Section 8.4(c).

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

After an amendment under this Section 11.2 becomes effective, the Company shall
mail to each Holder a notice briefly describing the amendment.

Nothing contained in this Section 11.2 shall impair the ability of the Company
and the Trustee to amend this Indenture or the Securities without the consent of
any Holder to provide for the assumption of the Company's obligations to the
Holders of Securities in the case of a merger, consolidation, conveyance,
transfer, sale, lease or other disposition pursuant to Article VII.

Section 11.3. Compliance with Trust Indenture Act.

Every supplemental indenture executed pursuant to this Article shall comply with
the TIA.

Section 11.4. Revocation and Effect of Consents, Waivers and Actions.

Until an amendment, waiver or other action by Holders becomes effective, a
consent thereto by a Holder of a Security hereunder is a continuing consent by
the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same obligation as the consenting Holder's Security,
even if notation of the consent, waiver or action is not made on the Security.
However, any such Holder or subsequent Holder may revoke the consent, waiver or
action as to such Holder's Security or portion of the Security if the Trustee
receives the notice of revocation before the date the amendment, waiver or
action becomes effective. After an amendment, waiver or action becomes
effective, it shall bind every Holder.

Section 11.5. Notation on or Exchange of Securities.

Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article XI may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
outstanding Securities.

Section 11.6. Trustee to Sign Supplemental Indentures.

The Trustee shall sign any supplemental indenture authorized pursuant to this
Article XI if the amendment contained therein does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign such supplemental indenture. In signing such
supplemental indenture the Trustee shall receive, and (subject to the provisions
of Section 9.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that such amendment is authorized
or permitted by this Indenture.

Section 11.7. Effect of Supplemental Indentures.

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

                                       40


                                  ARTICLE XII

                                   CONVERSION

Section 12.1. Conversion Right.

(a)  Subject to and upon compliance with the provisions of this Article XII, a
     Holder of a Security shall have the right, at such Holder's option, to
     convert all or any portion (if the portion to be converted is $1,000 or an
     integral multiple of $1,000) of such Security into Common Stock:

     (i)  during any Conversion Period, and only during such Conversion Period
          commencing after the date hereof, if, on each of at least 20 Trading
          Days in the period of 30 consecutive Trading Days ending on the first
          Trading Day of the Conversion Period, the Closing Sale Price of the
          Common Stock exceeds 120% of the Conversion Price in effect on such
          30th Trading Day of such period;

     (ii) if such Security has been called for redemption pursuant to Article
          III; or

     (iii) as provided in clause (b) of this Section 12.1.

     The Conversion Agent shall, on behalf of the Company, determine on a daily
     basis whether the Securities shall be convertible as a result of the
     occurrence of an event specified in clause (i) above and, if the Securities
     shall be so convertible, the Conversion Agent shall promptly deliver to the
     Company and the Trustee written notice thereof. Whenever the Securities
     shall become convertible pursuant to this Section 12.1, the Company or, at
     the Company's request, the Trustee in the name and at the expense of the
     Company, shall notify the Holders of the event triggering such
     convertibility in the manner provided in Section 13.2, and the Company
     shall also publish such information on the Company's website, or through
     such other public medium that reasonably could be expected to inform
     Holders of such information. Any notice so given shall be conclusively
     presumed to have been duly given, whether or not the Holder receives such
     notice. Securities called for redemption may be converted at any time on
     and after the date that the Company gives notice to the Holders of such
     right until 5:00 p.m., New York city time, on the second Business Day
     preceding the corresponding Redemption Date.

     With respect to any conversion of a Security during a Registration Default
     Period following satisfaction of any of the conditions to conversion
     described in clauses (i) through (iii) above (and during the prescribed
     time periods in respect thereof), a Holder shall be entitled to, subject to
     Section 12.13, 103% of the number of shares of Common Stock that the Holder
     would have otherwise been entitled to upon conversion.

(b)  (i) In the event that:

          (A)  the Company distributes to all holders of its Common Stock rights
               or warrants entitling them (for a period expiring within 60 days
               of the Record Date for such distribution) to subscribe for or
               purchase Common Stock at a price per share of Common Stock less
               than the Closing Sale Price of the Common Stock on the Business
               Day immediately preceding the announcement of such distribution;

          (B)  the Company distributes to all holders of its Common Stock cash
               or other assets, debt securities or rights or warrants to
               purchase its securities, including the declaration of any cash
               dividends, payable quarterly or otherwise, where the Fair Market
               Value (as determined by the Board of Directors) of such
               distribution per share of Common Stock exceeds 10% of the Closing
               Sale Price of the Common Stock on the Business Day immediately
               preceding the date of declaration of such distribution; or

          (C)  a Designated Event occurs,

     then, in each case, the Securities may be surrendered for conversion at any
     time on and after the date that the Company gives notice to the Holders of
     such right, which shall be, in the case of (A) or (B), not less than 15
     Business Days prior to the Ex-Dividend Time for such distribution, or, in
     the case of (C), within 15 Business

                                       41

     Days after the occurrence of the Designated Event, until 5:00 p.m., New
     York City time, on the earlier of the Business Day immediately preceding
     the Ex-Dividend Time and the date the Company announces that such
     distribution shall not take place in the case of (A) or (B), or within 20
     Business Days of the Company's delivery of the notice of the Designated
     Event in the case of (C); provided, however, that in the case of (A) or
     (B), a Holder of Securities may not surrender Securities for conversion if
     the Holder shall otherwise participate in such distribution without
     conversion.

     (ii) In addition, in the event that the Company consolidates with or merges
          into another corporation, or is a party to a binding share exchange
          pursuant to which the Common Stock would be converted into cash,
          securities or other property as set forth in Section 12.4, then the
          Securities may be surrendered for conversion at any time from and
          after the date which is 15 calendar days prior to the date announced
          by the Company as the anticipated effective time of such transaction
          until 15 calendar days after the actual date of such transaction.

Section 12.2. Conversion Procedures; Conversion Rate; Fractional Shares.

(a)  Subject to Section 12.13, each Security shall be convertible at the office
     of the Conversion Agent into fully paid and nonassessable shares of Common
     Stock (calculated to the nearest 1/10,000th of a share).

     The Conversion Agent shall notify the Company when it receives a Conversion
     Notice. Pursuant to Section 12.13, the Company shall determine the number
     of shares of Common Stock and/or the amount of cash, if any, that the
     Holder that submitted the Conversion Notice is entitled to receive upon
     surrender of the Securities covered by that Conversion Notice. If the
     Company elects to settle in Common Stock only, a certificate for the number
     of full shares of Common Stock into which the Securities are converted (and
     cash in lieu of fractional shares) shall be delivered to such Holder,
     assuming all of the other requirements have been satisfied by such Holder,
     as soon as practicable after the Company issues its notification of its
     chosen method of settlement, in accordance with Section 12.13. If the
     Company elects to settle in cash or a combination of cash and Common Stock,
     the cash and, if applicable, a certificate for the number of full shares of
     Common Stock into which the Securities are converted (and cash in lieu of
     fractional shares) shall be delivered to such Holder, assuming all of the
     other requirements have been satisfied by such Holder, in accordance with
     Section 12.13. Notwithstanding the foregoing, the Company shall not be
     required to deliver certificates for Common Stock while the stock transfer
     books for such stock or the security register are duly closed for any
     purpose, but certificates for Common Stock shall be issued and delivered as
     soon as practicable after the opening of such books or security register.

     No cash payment of accrued and unpaid interest or Additional Interest shall
     be paid by the Company on a converted Security, except as described in
     Section 12.9. Accrued and unpaid interest and Additional Interest, if any,
     shall be deemed to be paid in full with the shares of Common Stock issued
     or cash paid upon conversion, rather than deemed cancelled, extinguished or
     forfeited.

     If the Common Stock, cash or combination of Common Stock and cash received
     upon conversion of a Security pursuant to this Article XII does not include
     cash sufficient to comply with the United States federal withholding tax
     obligations imposed by the Code with respect to accrued and unpaid interest
     on the Securities payable to the beneficial owner of such Security, the
     Company may, to the extent required by applicable law, recoup or set-off
     such liability against either the Common Stock to be issued upon conversion
     to such beneficial owner or any actual cash dividends or distributions
     subsequently made with respect to such Common Stock to such beneficial
     owner.

     In the event of a Designated Event, if a Holder has submitted any or all of
     its Securities for repurchase, a Holder's conversion rights on the
     Securities so subject to repurchase shall expire at 5:00 p.m., New York
     City time, on the Business Day immediately preceding the Designated Event
     Purchase Date. Notwithstanding the foregoing, a Security in respect of
     which a Holder has delivered a Designated Event Purchase Notice exercising
     such Holder's right to require the Company to repurchase such Security may
     be converted only if such Designated Event Purchase Notice is withdrawn in
     accordance with Section 4.2(b) prior to 5:00 p.m., New York City time, on
     the Business Day immediately preceding the Designated Event Purchase Date.

(b)  Before any Holder shall be entitled to convert the same into Common Stock,
     such Holder shall, in the case of Global Securities, comply with the
     Applicable Procedures of the Depositary in effect at that time, and in the
     case of Certificated Securities, surrender such Securities, duly endorsed
     to the Company or in blank, at the office of the Conversion Agent, and
     shall give written notice to the Company at said office or place in the
     form of the

                                       42


     Conversion Notice attached to the Security (the "CONVERSION NOTICE") that
     such Holder elects to convert the same and shall state in writing therein
     the principal amount of Securities to be converted (in whole or in part so
     long as the principal amount to be converted is in multiples of $1,000
     principal amount) and the name or names (with addresses) in which such
     Holder wishes the certificate or certificates for Common Stock to be
     issued.

     Before any such conversion, a Holder also shall pay all funds required, if
     any, relating to interest or Additional Interest, if any, on the
     Securities, as provided in Section 12.9 and all taxes or duties, if any, as
     provided in Section 12.8.

     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 that shall be
     deliverable 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.

     If Common Stock to be issued upon conversion of a Restricted Security are
     to be issued in the name of a Person other than the Holder of such
     Restricted Security, such Holder shall deliver to the Conversion Agent a
     certification in substantially the form set forth in a Transfer Certificate
     dated the date of surrender of such Restricted Security and signed by such
     Holder, as to compliance with the restrictions on transfer applicable to
     such Restricted Security. The Company shall not be required to issue Common
     Stock upon conversion of any such Restricted Security to a Person other
     than the Holder if such Restricted Security is not so accompanied by a
     properly completed certification, and the Registrar shall not be required
     to register Common Stock upon conversion of any such Restricted Security in
     the name of a Person other than the Holder if such Restricted Security is
     not so accompanied by a properly completed certification.

(c)  A Security shall be deemed to have been converted immediately prior to 5:00
     p.m., New York City time, on the date on which all of the conversion
     requirements set forth in Section 12.2(b) have been satisfied, and the
     person or persons entitled to receive the Common Stock issuable upon such
     conversion shall be treated for all purposes as the record Holder or
     Holders of such Common Stock as of 5:00 p.m., New York City time, on such
     date.

(d)  In case any Certificated Security shall be surrendered for partial
     conversion, the Company shall execute and the Trustee shall authenticate
     and deliver to or upon the written order of the Holder of the Security so
     surrendered, without charge to such Holder (subject to the provisions of
     Section 12.8), a new Security or Securities in authorized denominations in
     an aggregate principal amount equal to the unconverted portion of the
     surrendered Certificated Securities.

Section 12.3. Adjustment of Conversion Rate.

The Conversion Rate shall be adjusted from time to time as follows:

(a)  In case the Company shall, at any time or from time to time while any of
     the Securities are outstanding, pay a dividend or make a distribution in
     Common Stock to all or substantially all holders of its outstanding Common
     Stock, then the Conversion Rate in effect immediately prior to the close of
     business on the Record Date fixed for the determination of stockholders
     entitled to receive such dividend or other distribution shall be adjusted
     so that the Holder of any Security thereafter surrendered for conversion
     shall be entitled to receive that number of shares of Common Stock which it
     would have received had such Security been converted immediately prior to
     the happening of such event as well as such additional shares it would have
     received as a result of such event. Such adjustment shall become effective
     immediately prior to the opening of business on the day following the
     Record Date fixed for such determination. If any dividend or distribution
     of the type described in this Section 12.3(a) is declared but not so paid
     or made, the Conversion Rate shall again be adjusted to the Conversion Rate
     which would then be in effect if such dividend or distribution had not been
     declared.

(b)  In case the Company shall, at any time or from time to time while any of
     the Securities are outstanding, subdivide its outstanding shares of Common
     Stock into a greater number of Common Stock or combine its outstanding
     shares of Common Stock into a smaller number of Common Stock, then the
     Conversion Rate in effect immediately prior to the close of business on the
     day upon which such subdivision or combination becomes effective shall be
     adjusted so that the Holder of any Security thereafter surrendered for
     conversion shall be entitled to receive that number of shares of Common
     Stock which it would have received had such Security

                                       43


     been converted immediately prior to the happening of such event as well as
     such additional shares as it would have received as a result of such event.

     Such adjustment shall become effective immediately prior to the opening of
     business on the day following the day upon which such subdivision or
     combination becomes effective.

(c)  In case the Company shall, at any time or from time to time while any of
     the Securities are outstanding, issue rights or warrants for a period
     expiring within 60 days (other than any rights or warrants referred to in
     Section 12.3(d)) to all or substantially all holders of its outstanding
     Common Stock entitling them to subscribe for or purchase Common Stock (or
     securities convertible into or exchangeable or exercisable for Common
     Stock), at a price per share of Common Stock (or having a conversion,
     exchange or exercise price per share of Common Stock) less than the Closing
     Sale Price of the Common Stock on the Business Day immediately preceding
     the date of announcement of such issuance (treating the conversion,
     exchange or exercise price per share of Common Stock of the securities
     convertible, exchangeable or exercisable into Common Stock as equal to (x)
     the sum of (i) the price for a unit of the security convertible into or
     exchangeable or exercisable for Common Stock and (ii) any additional
     consideration initially payable upon the conversion of or exchange or
     exercise for such security into Common Stock divided by (y) the number of
     shares of Common Stock initially underlying such convertible, exchangeable
     or exercisable security), then the Conversion Rate shall be adjusted by
     multiplying the Conversion Rate in effect at the opening of business on the
     date after such date of announcement by a fraction:

                  (i)      the numerator of which shall be the number of shares
         of Common Stock outstanding at the close of business on the date of
         announcement, plus the total number of additional shares of Common
         Stock so offered for subscription or purchase (or into which the
         convertible, exchangeable or exercisable securities so offered are
         convertible, exchangeable or exercisable); and

                  (ii)     the denominator of which shall be the number of
         shares of Common Stock outstanding on the close of business on the date
         of announcement, plus the number of shares of Common Stock (or
         convertible, exchangeable or exercisable securities) which the
         aggregate offering price of the total number of shares of Common Stock
         (or convertible, exchangeable or exercisable securities) so offered for
         subscription or purchase (or the aggregate conversion, exchange or
         exercise price of the convertible, exchangeable or exercisable
         securities so offered) would purchase at such Closing Sale Price of the
         Common Stock.

     Such adjustment shall become effective immediately prior to the opening of
     business on the day following the Record Date for such determination. To
     the extent that shares of Common Stock (or securities convertible,
     exchangeable or exercisable into shares of Common Stock) are not delivered
     pursuant to such rights or warrants, upon the expiration or termination of
     such rights or warrants, the Conversion Rate shall be readjusted to the
     Conversion Rate which would then be in effect had the adjustments made upon
     the issuance of such rights or warrants been made on the basis of the
     delivery of only the number of shares of Common Stock (or securities
     convertible, exchangeable or exercisable into shares of Common Stock)
     actually delivered. In the event that such rights or warrants are not so
     issued, the Conversion Rate shall again be adjusted to be the Conversion
     Rate which would then be in effect if the Record Date fixed for the
     determination of stockholders entitled to receive such rights or warrants
     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 Closing Sale Price, and in determining the aggregate offering
     price of such shares of Common Stock, there shall be taken into account any
     consideration received for such rights or warrants, the value of such
     consideration if other than cash, to be determined by the Board of
     Directors.

(d)  (A) In case the Company shall, at any time or from time to time while any
     of the Securities are outstanding, by dividend or otherwise, distribute to
     all or substantially all holders of its outstanding shares of Common Stock
     (including any such distribution made in connection with a consolidation or
     merger in which the Company is the continuing corporation and the shares of
     Common Stock are not changed or exchanged), shares of its capital stock,
     evidences of its Indebtedness or other assets, including securities, but
     excluding (i) dividends or distributions of Common Stock referred to in
     Section 12.3(a), (ii) any rights or warrants referred to in Section

                                       44


     12.3(c), (iii) dividends and distributions paid exclusively in cash
     referred to in Section 12.3(e) and (iv) dividends and distributions of
     stock, securities or other property or assets (including cash) in
     connection with the reclassification, change, merger, consolidation,
     statutory share exchange, combination, sale or conveyance to which Section
     12.4 applies (such capital stock, evidence of its indebtedness, other
     assets or securities being distributed hereinafter in this Section 12.3(d)
     called the "DISTRIBUTED ASSETS"), then, in each such case, subject to
     paragraphs (D) and (E) of this Section 12.3(d), the Conversion Rate shall
     be adjusted by multiplying the Conversion Rate in effect immediately prior
     to the close of business on the Record Date with respect to such
     distribution by a fraction:

                  (i)      the numerator of which shall be the Current Market
         Price; and

                  (ii)     the denominator of which shall be such Current Market
         Price of the Common Stock, less the Fair Market Value on such date of
         the portion of the distributed assets so distributed applicable to one
         share of Common Stock (determined on the basis of the number of shares
         of Common Stock outstanding on the Record Date) on such date.

     Such adjustment shall become effective immediately prior to the opening of
     business on the day following the Record Date for such distribution. In the
     event that such dividend or distribution is not so paid or made, the
     Conversion Rate shall again be adjusted to be the Conversion Rate which
     would then be in effect if such dividend or distribution had not been
     declared.

                           (B)      If the Board of Directors determines the
         Fair Market Value of any distribution for purposes of this Section
         12.3(d) by reference to the actual or when issued trading market for
         any distributed assets comprising all or part of such distribution, it
         must in doing so consider the prices in such market over the same
         period (the "REFERENCE PERIOD") used in computing the Current Market
         Price pursuant to Section 12.3(g) to the extent possible, unless the
         Board of Directors determines in good faith that determining the Fair
         Market Value during the Reference Period would not be in the best
         interest of the Holders.

(C)  In the event any such distribution consists of shares of capital stock of,
     or similar equity interests in, one or more of the Company's Subsidiaries
     (a "SPIN-OFF"), the Fair Market Value of the securities to be distributed
     shall equal the average of the Closing Sale Prices of such securities on
     the principal securities market on which such securities are traded for the
     five consecutive Trading Days commencing on and including the sixth Trading
     Day of those securities after the effectiveness of the Spin-Off, and the
     Current Market Price shall be measured for the same period. In the event,
     however, that an underwritten initial public offering of the securities in
     the Spin-Off occurs simultaneously with the Spin-Off, Fair Market Value of
     the securities distributed in the Spin-Off shall mean the initial public
     offering price of such securities and the Current Market Price shall mean
     the Closing Sale Price for the Common Stock on the same Trading Day.

(D)  Rights or warrants distributed by the Company to all holders of its
     outstanding shares of Common Stock entitling them to subscribe for or
     purchase shares of Equity Interest (either initially or under certain
     circumstances), which rights or warrants, until the occurrence of a
     specified event or events ("TRIGGER EVENT"), (x) are deemed to be
     transferred with such Common Stock, (y) are not exercisable and (z) are
     also issued in respect of future issuances of Common Stock shall be deemed
     not to have been distributed for purposes of this Section 12.3(d) (and no
     adjustment to the Conversion Rate under this Section 12.3(d) shall be
     required) until the occurrence of the earliest Trigger Event. If such right
     or warrant is subject to subsequent events, upon the occurrence of which
     such right or warrant shall become exercisable to purchase different
     distributed assets, evidences of indebtedness or other assets, or entitle
     the holder to purchase a different number or amount of the foregoing or to
     purchase any of the foregoing at a different purchase price, then the
     occurrence of each such event shall be deemed to be the date of issuance
     and Record Date with respect to a new right or warrant (and a termination
     or expiration of the existing right or warrant without exercise by the
     holder thereof). In addition, in the event of any distribution (or deemed
     distribution) of rights or warrants, or any Trigger Event or other event
     (of the type described in the preceding sentence) with respect thereto,
     that resulted in an adjustment to the Conversion Rate under this Section
     12.3(d):

                                       45

                  (iii)    in the case of any such rights or warrants which
         shall all have been redeemed or purchased without exercise by any
         holders thereof, the Conversion Rate shall be readjusted upon such
         final redemption or purchase to give effect to such distribution or
         Trigger Event, as the case may be, as though it were a cash
         distribution, equal to the per share redemption or Purchase Price
         received by a holder of Common Stock with respect to such rights or
         warrants (assuming such holder had retained such rights or warrants),
         made to all holders of Common Stock as of the date of such redemption
         or purchase; and

                  (iv)     in the case of such rights or warrants which shall
         have expired or been terminated without exercise, the Conversion Rate
         shall be readjusted as if such rights and warrants had never been
         issued.

                           (E)      For purposes of this Section 12.3(d) and
         Section 12.3(a), Section 12.3(b) and Section 12.3(c), any dividend or
         distribution to which this Section 12.3(d) is applicable that also
         includes (x) Common Stock, (y) a subdivision or combination of Common
         Stock to which Section 12.3(b) applies or (z) rights or warrants to
         subscribe for or purchase Common Stock to which Section 12.3(c) applies
         (or any combination thereof), shall be deemed instead to be:

                  (v)      a dividend or distribution of the evidences of
         indebtedness, assets, shares of capital stock, rights or warrants,
         other than such Common Stock, such subdivision or combination or such
         rights or warrants to which Section 12.3(a), Section 12.3(b) and
         Section 12.3(c) apply, respectively (and any Conversion Rate adjustment
         required by this Section 12.3(d) with respect to such dividend or
         distribution shall then be made), immediately followed by

                  (vi)     a dividend or distribution of such Common Stock, such
         subdivision or combination or such rights or warrants (and any further
         Conversion Rate adjustment required by Section 12.3(a), Section 12.3(b)
         and Section 12.3(c) with respect to such dividend or distribution shall
         then be made), except:

                           (1)  the Record Date of such dividend or distribution
         shall be substituted as (i) "the date fixed for the determination of
         stockholders entitled to receive such dividend or other distribution,"
         "Record Date fixed for such determinations" and "Record Date" within
         the meaning of Section 12.3(a), (ii) "the day upon which such
         subdivision or combination becomes effective" within the meaning of
         Section 12.3(b), and (iii) as "the Record Date fixed for the
         determination of the stockholders entitled to receive such rights or
         warrants" and such "Record Date" within the meaning of Section 12.3(c);
         and

                           (2)  any reduction or increase in the number of
         shares of Common Stock resulting from such subdivision or combination
         shall be disregarded in connection with such dividend or distribution.

                  (e)  In case the Company shall, at any time or from time to
time after the initial Issue Date while any of the Securities are outstanding,
by dividend or otherwise, distribute to all or substantially all holders of its
outstanding shares of Common Stock, cash (including any quarterly cash
dividends, but excluding any cash that is distributed upon a reclassification,
change, merger, consolidation, statutory share exchange, combination, sale or
conveyance to which Section 12.4 applies or as part of a distribution referred
to in Section 12.3(d)), then, and in each case, immediately after the close of
business on such date, the Conversion Rate shall be adjusted by multiplying the
Conversion Rate in effect immediately prior to the close of business of such
Record Date by a fraction:

                           (A)  the numerator of which shall be equal to the
         Current Market Price on such date; and

                           (B)  the denominator of which shall be equal to the
         Current Market Price on the Record Date, less an amount equal to the
         quotient of (x) the aggregate amount of such cash distribution and (y)
         the number of shares of Common Stock outstanding on the Record Date.

                                       46

         Such adjustment shall become effective immediately prior to the opening
         of business on the day following the Record Date for such distribution.
         In the event that such distribution is not so made, the Conversion Rate
         shall again be adjusted to be the Conversion Rate which would then be
         in effect if such distribution had not been declared.

(f)  In case a tender offer or exchange offer (other than as part of a stock
     option exchange offer) made by the Company or any of its Subsidiaries for
     all or any portion of the Common Stock shall expire, then and in each such
     case, immediately prior to the opening of business on the day after the
     date of the last time (the "EXPIRATION TIME") tenders or exchanges could
     have been made pursuant to such tender offer or exchange offer, the
     Conversion Rate shall be adjusted so that the same shall equal the rate
     determined by multiplying the Conversion Rate in effect immediately prior
     to the close of business on the date of the Expiration Time by a fraction:

                  (A)  the numerator of which shall be the sum of (x) the
         product of (i) the number of shares of Common Stock outstanding
         (excluding any tendered or exchanged shares) at the Expiration Time and
         (ii) the Current Market Price of the Common Stock at the Expiration
         Time, and (y) the Fair Market Value of the aggregate consideration
         payable to stockholders based on acceptance (up to any maximum
         specified in the terms of the tender offer or exchange offer) of all
         shares validly tendered and not withdrawn as of the Expiration Time;
         and

                  (B)  the denominator of which shall be the product of the
         number of shares of Common Stock outstanding (including any tendered or
         exchanged shares) at the Expiration Time and the Current Market Price
         of the Common Stock at the Expiration Time.

Such adjustment (if any) shall become effective immediately prior to the opening
of business on the day following the Expiration Time. In the event that the
Company is obligated to purchase shares pursuant to any such tender offer or
exchange offer, but the Company is permanently prevented by applicable law from
effecting any such purchases or all or a portion of such purchases are
rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate
which would then be in effect if such (or such portion of the) tender offer or
exchange offer had not been made. If the application of this Section 12.3(e) to
any tender offer or exchange offer would result in a decrease in the Conversion
Rate, no adjustment shall be made for such tender offer under this Section
12.3(e).

To the extent the Company has a rights plan in effect upon the conversion of the
Securities, if Holders of the Securities exercising the right of conversion
attaching after the date the rights separate from the underlying Common Stock
are not entitled to receive the rights that would otherwise be attributable to
the Common Stock received upon conversion, the Conversion Rate shall be adjusted
as though the rights were being distributed to holders of Common Stock on the
date of such separation. If such an adjustment is made and the rights are later
redeemed, invalidated or terminated, then a corresponding reversing adjustment
shall be made to the Conversion Rate on an equitable basis.

(g)  For purposes of this Article XII, the following terms shall have the
     meanings indicated:

     "CURRENT MARKET PRICE" on any date means the average of the daily Closing
     Sale Prices per share of Common Stock for the ten consecutive Trading Days
     immediately prior to such date; provided, however, that if:

                  (i)      the "ex" date (as hereinafter defined) for any event
         (other than the issuance or distribution requiring such computation)
         that requires an adjustment to the Conversion Rate pursuant to Section
         12.3(a), Section 12.3(b), Section 12.3(c), Section 12.3(d), Section
         12.3(e) or Section 12.3(f) occurs during such ten consecutive Trading
         Days, the Closing Sale Price for each Trading Day prior to the "ex"
         date for such other event shall be adjusted by multiplying such Closing
         Sale Price by the same fraction by which the Conversion Rate is so
         required to be adjusted as a result of such other event;

                  (ii)     the "ex" date for any event (other than the issuance
         or distribution requiring such computation) that requires an adjustment
         to the Conversion Rate pursuant to Section 12.3(a), Section 12.3(b),
         Section 12.3(c), Section 12.3(d), Section 12.3(e) or Section 12.3(f)
         occurs on or after the "ex" date for the issuance or distribution
         requiring such computation and prior to the day

                                       47


         in question, the Closing Sale Price for each Trading Day on and after
         the "ex" date for such other event shall be adjusted by multiplying
         such Closing Sale Price by the reciprocal of the fraction by which the
         Conversion Rate is so required to be adjusted as a result of such other
         event; and

                  (iii)    the "ex" date for the issuance or distribution
         requiring such computation is prior to the day in question, after
         taking into account any adjustment required pursuant to clause (1) or
         (2) of this proviso, the Closing Sale Price for each Trading Day on or
         after such "ex" date shall be adjusted by adding thereto the amount of
         any cash and the Fair Market Value (as determined by the Board of
         Directors in a manner consistent with any determination of such value
         for purposes of Section 12.3(d), Section 12.3(e) or Section 12.3(f)) of
         the evidences of Indebtedness, shares of capital stock or assets being
         distributed applicable to one share of Common Stock as of the close of
         business on the day before such "ex" date.

     For purposes of any computation under Section 12.3(e), if the "ex" date for
     any event (other than the tender offer requiring such computation) that
     requires an adjustment to the Conversion Rate pursuant to Section 12.3(a),
     Section 12.3(b), Section 12.3(c), Section 12.3(d), Section 12.3(e) or
     Section 12.3(f) occurs on or after the Expiration Time for the tender or
     exchange offer requiring such computation and prior to the day in question,
     the Closing Sale Price for each Trading Day on and after the "ex" date for
     such other event shall be adjusted by multiplying such Closing Sale Price
     by the reciprocal of the fraction by which the Conversion Rate is so
     required to be adjusted as a result of such other event. For purposes of
     this paragraph, the term "ex" date, when used:

                  (iv)     with respect to any issuance or distribution, means
         the first date on which the Common Stock trade regular way on the
         relevant exchange or in the relevant market from which the Closing Sale
         Price was obtained without the right to receive such issuance or
         distribution;

                  (v)      with respect to any subdivision or combination of
         Common Stock, means the first date on which the Common Stock trade
         regular way on such exchange or in such market after the time at which
         such subdivision or combination becomes effective; and

                  (vi)     with respect to any tender offer or exchange offer,
         means the first date on which the Common Stock trade regular way on
         such exchange or in such market after the Expiration Time of such
         offer.

     Notwithstanding the foregoing, whenever successive adjustments to the
     Conversion Rate are called for pursuant to this Section 12.3, such
     adjustments shall be made to the Current Market Price as may be necessary
     or appropriate to effectuate the intent of this Section 12.3 and to avoid
     unjust or inequitable results as determined in good faith by the Board of
     Directors.

     "FAIR MARKET VALUE" means the amount which a willing buyer would pay a
     willing seller in an arm's length transaction (as determined by the Board
     of Directors, whose determination shall be made in good faith and, absent
     manifest error, shall be final and binding on Holders of the Securities).

     "RECORD DATE" means, 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 stockholders 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)  The Company shall be entitled to make such additional adjustments in the
     Conversion Rate, in addition to those required by Section 12.3(a), Section
     12.3(b), Section 12.3(c), Section 12.3(d), Section 12.3(e) or Section
     12.3(f) if the Board of Directors determines that it is advisable, subject
     to compliance with Nasdaq Marketplace Rule 4350(i), in order that any
     dividend or distribution of Common Stock, any subdivision, reclassification
     or combination of Common Stock or any issuance of rights or warrants
     referred to above shall not be taxable to the holders of Common Stock for
     United States federal income tax purposes.

(i)  To the extent permitted by applicable law, the Company may, from time to
     time, increase the Conversion Rate by any amount for any period of time if
     such period is at least 20 calendar days, the increase is irrevocable

                                       48


     during the period and the Board of Directors, in good faith and absent
     manifest error, determines that such increase would be in the best interest
     of the Company, subject to compliance with Nasdaq Marketplace Rule 4350(i).
     Whenever the Conversion Rate is increased pursuant to the preceding
     sentence, the Company shall mail to the Trustee and each Holder at the
     address of such Holder as it appears in the register of the Securities
     maintained by the Registrar, at least 15 calendar days prior to the date
     the increased Conversion Rate takes effect, a notice of the increase
     stating the increased Conversion Rate and the period during which it shall
     be in effect.

(j)  In any case in which this Section 12.3 shall require that any adjustment be
     made effective as of or retroactively immediately following a Record Date,
     the Company may elect to defer (but only for five Trading Days following
     the filing of the notice referred to in Section 12.5) issuing to the Holder
     of any Securities converted after such Record Date the Common Stock
     issuable upon such conversion over and above the Common Stock issuable upon
     such conversion on the basis of the Conversion Rate prior to adjustment;
     provided, however, that the Company shall deliver to such Holder a due bill
     or other appropriate instrument evidencing such Holder's right to receive
     such additional Common Stock upon the occurrence of the event requiring
     such adjustment.

(k)  All calculations under this Section 12.3 shall be made to the nearest cent
     or one-hundredth of a share, with one-half cent and 0.005 of a share,
     respectively, being rounded upward. Notwithstanding any other provision of
     this Section 12.3, the Company shall not be required to make any adjustment
     of the Conversion Rate unless such adjustment would require an increase or
     decrease of at least 1% in the Conversion Rate as last adjusted. Any lesser
     adjustment shall be carried forward and shall be made at the time of and
     together with the next subsequent adjustment which, together with any
     adjustment or adjustments so carried forward, shall amount to an increase
     or decrease of at least 1% in the Conversion Rate as last adjusted. Any
     adjustments under this Section 12.3 shall be made successively whenever an
     event requiring such an adjustment occurs.

(l)  In the event that at any time, as a result of an adjustment made pursuant
     to this Section 12.3, the Holder of any Securities thereafter surrendered
     for conversion shall become entitled to receive any shares of stock of the
     Company other than Common Stock into which the Securities originally were
     convertible, the Conversion Rate of such other shares so receivable upon
     conversion of any such Security shall be subject to adjustment from time to
     time in a manner and on terms as nearly equivalent as practicable to the
     provisions with respect to Common Stock contained in subparagraphs (a)
     through (j) of this Section 12.3, and the provision of Section 12.1,
     Section 12.2 and Section 12.4 through Section 12.9 with respect to the
     Common Stock shall apply on like or similar terms to any such other shares
     and the determination of the Board of Directors as to any such adjustment
     shall be conclusive.

(m)  No adjustment shall be made pursuant to this Section 12.3 if (i) the effect
     thereof would be to reduce the Conversion Price below the par value (if
     any) of the Common Stock or (ii) any dividend, distribution or issuance
     that would otherwise give rise to an adjustment pursuant to this Section
     12.3 is made or paid to the Holders of the Securities.

Section 12.4. Consolidation or Merger of the Company.

If any of the following events occurs, namely:

                  (a)      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 subdivision or combination);

                  (b)      any merger, consolidation, statutory share exchange
         or combination of the Company with another corporation as a result of
         which holders of Common Stock shall be entitled to receive stock,
         securities or other property or assets (including cash) with respect to
         or in exchange for such Common Stock; or

                                       49


                  (c)      any sale or conveyance of the properties and assets
         of the Company as, or substantially as, an entirety to any other
         corporation as a result of which holders of Common Stock shall be
         entitled to receive stock, securities or other property or assets
         (including cash) with respect to or in exchange for such Common Stock;

the Company or the successor or purchasing corporation, as the case may be,
shall execute with the Trustee a supplemental indenture (which shall comply with
the Trust Indenture Act as in force at the date of execution of such
supplemental indenture, if such supplemental indenture is then required to so
comply) providing that such Securities shall be convertible into the kind and
amount of shares of stock and other securities or property or assets (including
cash) which such Holder would have been entitled to receive upon such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance had such Securities been converted into Common
Stock immediately prior to such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance assuming such holder
of Common Stock did not exercise its rights of election, if any, as to the kind
or amount of securities, cash or other property receivable upon such merger,
consolidation, statutory share exchange, sale or conveyance (provided, that if
the kind or amount of securities, cash or other property receivable upon such
merger, consolidation, statutory share exchange, sale or conveyance is not the
same for each share of Common Stock in respect of which such rights of election
shall not have been exercised ("NON-ELECTING SHARE"), then for the purposes of
this Section 12.4, the kind and amount of securities, cash or other property
receivable upon such merger, consolidation, statutory share exchange, sale or
conveyance for each Non-Electing Share shall be deemed to be the kind and amount
so receivable per share by a plurality of the Non-Electing Shares). 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
XII. If, in the case of any such reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance, the
stock or other securities and assets receivable thereupon by a holder of Common
Stock includes shares of stock or other securities and assets of a corporation
other than the successor or purchasing corporation, as the case may be, in such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance, then such supplemental indenture shall also be
executed by such other corporation and shall contain such additional provisions
to protect the interests of the Holders of the Securities as the Board of
Directors shall reasonably consider necessary by reason of the foregoing. The
Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Holder, at the address of such Holder as it appears on the
register of the Securities maintained by the Registrar, within 20 days after
execution thereof. Failure to deliver such notice shall not affect the legality
or validity of such supplemental indenture.

The above provisions of this Section 12.4 shall similarly apply to successive
reclassifications, mergers, consolidations, statutory share exchanges,
combinations, sales and conveyances.

If this Section 12.4 applies to any event or occurrence, Section 12.3 shall not
apply.

Section 12.5. Notice of Adjustment.

Whenever an adjustment in the Conversion Rate with respect to the Securities is
required:

                  (a)      the Company shall forthwith place on file with the
         Trustee and any Conversion Agent for such securities a certificate of
         the Chief Financial Officer of the Company, stating the adjusted
         Conversion Rate determined as provided herein and setting forth in
         reasonable detail such facts as shall be necessary to show the reason
         for and the manner of computing such adjustment; and

                  (b)      a notice stating that the Conversion Rate has been
         adjusted and setting forth the adjusted Conversion Rate shall forthwith
         be given by the Company or, at the Company's request, by the Trustee in
         the name and at the expense of the Company, to each Holder in the
         manner provided in Section 13.2. Any notice so given shall be
         conclusively presumed to have been duly given, whether or not the
         Holder receives such notice.

Section 12.6. Notice in Certain Events.

In case of:

                  (a)      a consolidation or merger to which the Company is a
         party and for which approval of any stockholders of the Company is
         required, or of the sale or conveyance to another Person or entity or
         group

                                       50


         of Persons or entities acting in concert as a partnership, limited
         partnership, syndicate or other group (within the meaning of Rule 13d-3
         under the Exchange Act) of all or substantially all of the property and
         assets of the Company; or

                  (b)      the voluntary or involuntary dissolution, liquidation
         or winding up of the Company; or

                  (c)      any action triggering an adjustment of the Conversion
         Rate referred to in clauses (x) or (y) below;

then, in each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent, and shall cause to be given, to the Holders of the Securities
in the manner provided in Section 13.2, at least 15 days prior to the applicable
date hereinafter specified, a notice stating:

                  (x)      the date on which a record is to be taken for the
         purpose of any distribution or grant of rights or warrants triggering
         an adjustment to the Conversion Rate pursuant to this Article XII, or,
         if a record is not to be taken, the date as of which the holders of
         record of Common Stock entitled to such distribution, rights or
         warrants are to be determined; or

                  (y)      the date on which any reclassification,
         consolidation, merger, sale, conveyance, dissolution, liquidation or
         winding up triggering an adjustment to the Conversion Rate pursuant to
         this Article XII is expected to become effective, and the date as of
         which it is expected that holders of Common Stock of record shall be
         entitled to exchange their shares of Common Stock for securities or
         other property deliverable upon such reclassification, consolidation,
         merger, sale, conveyance, dissolution, liquidation or winding up.

Failure to give such notice or any defect therein shall not affect the legality
or validity of the proceedings described in Section 12.6(a), Section 12.6(b) or
Section 12.6(c).

Section 12.7. Company To Reserve Stock: Registration; Listing.

(a)  The Company shall, prior to issuance of any Securities hereunder, and from
     time to time as may be necessary, reserve and keep available, free from
     preemptive rights, out of its authorized but unissued Common Stock, for the
     purpose of effecting the conversion of the Securities, such number of its
     duly authorized Common Stock as shall from time to time be sufficient to
     effect the conversion of all Securities then outstanding into such Common
     Stock at any time (assuming that, at the time of the computation of such
     number of Common Stock, all such Securities would be held by a single
     Holder). The Company covenants that all Common Stock which may be issued
     upon conversion of Securities shall upon issue be fully paid and
     nonassessable and free from all liens and charges and, except as provided
     in Section 12.8, taxes with respect to the issue thereof.

(b)  If any Common Stock which would be issuable upon conversion of Securities
     hereunder require registration with or approval of any governmental
     authority before such shares or securities may be issued upon such
     conversion, the Company shall use its reasonable best efforts to cause such
     shares or securities to be duly registered or approved, as the case may be.
     The Company further covenants that so long as the Common Stock shall be
     quoted on the Nasdaq National Market system, the Company shall use its
     reasonable best efforts, if permitted by the rules of the Nasdaq National
     Market system, to keep so quoted all Common Stock issuable upon conversion
     of the Securities, and the Company shall use its reasonable best efforts to
     list or obtain approval for the quotation of the Common Stock to be
     delivered upon conversion of the Securities prior to such delivery upon any
     other national securities exchange or quotation system upon which the
     outstanding Common Stock is listed or quoted at the time of such delivery.

Section 12.8. Taxes on Conversion.

The issue of stock certificates on conversion of Securities shall be made
without charge to the converting Holder for any documentary, stamp or similar
issue or transfer taxes in respect of the issue thereof, and the Company shall
pay any and all documentary, stamp or similar issue or transfer taxes that may
be payable in respect of the issue or delivery of Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be required to pay
any such tax which may be payable in respect of any transfer involved in the
issue or delivery of Common Stock or the portion, if any, of the Securities
which

                                       51


are not so converted in a name other than that in which the Securities so
converted were registered, and no such issue or delivery shall be made unless
and until the Person requesting such issue has paid to the Company the amount of
such tax or has established to the satisfaction of the Company that such tax has
been paid.

Section 12.9. Conversion After Regular Record Date.

Except as provided in the succeeding paragraph, the Holder of Securities shall
not be entitled to receive any accrued and unpaid interest or Additional
Interest, if any.

If any Securities are surrendered for conversion subsequent to the close of
business on any Regular Record Date but prior to the opening of business on the
corresponding Interest Payment Date, the Holder of such Securities at the close
of business on such Regular Record Date shall receive the interest and
Additional Interest, if any, payable on such Securities on such Interest Payment
Date notwithstanding the conversion thereof. Securities surrendered for
conversion during the period from the close of business on any Regular Record
Date to the opening of business on the corresponding Interest Payment Date shall
(except in the case of Securities which have been called for redemption on a
Redemption Date within such period) be accompanied by payment by Holders, for
the account of the Company, in New York Clearing House funds or other funds
acceptable to the Company of an amount equal to the interest and Additional
Interest, if any, payable on such interest payment date on the Securities being
surrendered for conversion.

Except as provided in Section 12.2(a) and this Section 12.9, no payment or
adjustment shall be made in respect of dividends or distributions on the Common
Stock issued upon conversion or accrued and unpaid interest or Additional
Interest, if any, on a converted Security.

Section 12.10. Company Determination Final.

Any determination that the Company or the Board of Directors must make pursuant
to this Article XII shall be conclusive if made in good faith and in accordance
with the provisions of this Article, absent manifest error, and set forth in a
Board Resolution.

Section 12.11. Responsibility of Trustee for Conversion Provisions.

The Trustee has no duty to determine when an adjustment under this Article XII
should be made, how it should be made or what it should be. The Trustee makes no
representation as to the validity or value of any securities or assets issued
upon conversion of Securities. The Trustee shall not be responsible for any
failure of the Company to comply with this Article XII. Each Conversion Agent
other than the Company shall have the same protection under this Section 12.11
as the Trustee.

The rights, privileges, protections, immunities and benefits given to the
Trustee under this Indenture including, without limitation, its rights to be
indemnified, are extended to, and shall be enforceable by, other than the
Company, the Trustee in each of its capacities hereunder, and each Paying Agent
or Conversion Agent, other than the Company, acting hereunder.

Section 12.12. Unconditional Right of Holders to Convert.

Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to convert
its Security in accordance with this Article XII and to bring an action against
the Company for the enforcement of any such right to convert, and such rights
shall not be impaired or affected without the consent of such Holder.

Section 12.13. Option to Satisfy Conversion Obligation with Cash, Common Stock
or Combination Thereof.

(a)  If the Company receives any Holder's Conversion Notice on or prior to the
     day that is 31 Trading Days prior to the Stated Maturity (the "FINAL NOTICE
     DATE"), then the Company shall notify the Holder through the Trustee, at
     any time on or before the date that is three Trading Days following receipt
     of the Conversion Notice required pursuant to Section 12.2 (such period,
     the "SETTLEMENT NOTICE PERIOD") of the method the Company chooses to settle
     its obligation upon conversion (the "CONVERSION OBLIGATION"). If the
     Company elects to settle its Conversion Obligation in a combination of cash
     and Common Stock, the Company shall specify both the percentage of the
     principal amount of Securities surrendered for conversion that it will pay
     in cash and the percentage of the excess (the "EXCESS AMOUNT"), if any, of
     the Conversion Obligation relating to the Securities surrendered for
     conversion over the principal amount of the Securities surrendered for
     conversion that it will pay

                                       52


     in cash. The remainder of its Conversion Obligation will be settled in
     shares of Common Stock (except that cash will be paid in lieu of issuing
     any fractional shares). The Company shall treat all Holders converting on
     the same Trading Day in the same manner and the Company shall not have any
     obligation to settle Conversion Obligations arising on different Trading
     Days in the same manner.

                  If the Company timely elects to pay cash for any portion of
the Conversion Obligation, the Holder may retract the Conversion Notice at any
time during the two Trading Day period beginning on the Trading Day after the
Settlement Notice Period (the "CONVERSION RETRACTION PERIOD"); provided, that no
such retraction can be made (and a Conversion Notice shall be irrevocable) if
the Company does not elect to deliver cash in lieu of shares (other than cash in
lieu of fractional shares). Settlement in Common Stock only will occur in
accordance with Section 12.2(a). If the Conversion Notice has not been
retracted, then settlement in cash or in a combination of cash and Common Stock
will, subject to Section 12.13(c), occur on the third Trading Day following the
final Trading Day of the 20 Trading Day period beginning on the third Trading
Day following the final Trading Day of the Conversion Retraction Period (the
"CASH SETTLEMENT AVERAGING PERIOD"), assuming all of the other requirements have
been satisfied by such Holder.

                  Settlement amounts will be computed as follows (subject to the
provisions of the third paragraph of Section 12.1(a) in connection with
conversions during a Registration Default Period):

                           (i)      if the Company elects to satisfy the entire
         Conversion Obligation in Common Stock, the Company shall deliver to
         such Holder a number of shares of Common Stock equal to (1) the
         aggregate original principal amount of Securities to be converted
         divided by 1,000, multiplied by (2) the Conversion Rate;

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

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

                                    (2)      the arithmetic average of the
                  Closing Prices of Common Stock during the Cash Settlement
                  Averaging Period; and

                           (iii)    if the Company elects to satisfy a portion
         of the Conversion Obligation in cash (the "CASH AMOUNT") (excluding any
         cash paid for fractional shares) and a portion of the Conversion
         Obligation in Common Stock, the Company shall deliver to such Holder:

                                    (1)      the Cash Amount equal to the
                  aggregate principal amount of Securities to be converted
                  multiplied by the percentage of such principal amount to be
                  satisfied in cash, and if greater than zero, the product of
                  (x) the amount of cash that would be paid pursuant to clause
                  (ii) above minus the aggregate principal amount of the
                  Securities surrendered for conversion, and (y) the percentage
                  of the Excess Amount to be satisfied in cash; plus

                                    (2)      the number of shares of Common
                  Stock equal to (x) the number of shares of Common Stock that
                  would be issued pursuant to clause (i) above minus (y) the
                  number of shares of Common Stock equal to the quotient of the
                  Cash Amount divided by the arithmetic average of the Closing
                  Sale Prices of the Common Stock during the Cash Settlement
                  Averaging Period.

Notwithstanding the foregoing, a Security in respect of which a Holder has
delivered a Designated Event Purchase Notice exercising such Holder's right to
require the Company to repurchase such Security may be converted as described in
this Section 12.13(a) only if such notice of exercise is withdrawn in accordance
with Section 4.2(b) prior to 5:00 p.m., New York City time, on the Business Day
immediately preceding the Designated Event Purchase Date.

                                       53


(b)  The Company shall settle all of its Conversion Obligations arising after
     the Final Notice Date in the same manner. On or prior to the Final Notice
     Date, the Company shall notify the Holders through the Trustee of the
     method it chooses to settle any Conversion Obligations arising after the
     Final Notice Date. If the Company elects to settle any Conversion
     Obligations arising after the Final Notice Date in a combination of cash
     and Common Stock, the Company shall specify both the percentage of the
     principal amount of Securities surrendered for conversion that it will pay
     in cash and the percentage of the Excess Amount that it will pay in cash.
     The remainder of any Conversion Obligation arising after the Final Notice
     Date shall be settled in shares of Common Stock (except that cash will be
     paid in lieu of issuing any fractional shares). All Conversion Notices
     received after the Final Notice Date shall be irrevocable.

                  (c) Settlement of Conversion Obligations arising after the
Final Notice Date in Common Stock shall occur in accordance with Section
12.2(a). Settlement of Conversion Obligations arising after the Final Notice
Date in cash or in a combination of cash and Common Stock shall occur on the
third Trading Day following the final Trading Day of the Cash Settlement
Averaging Period described in the following sentence. The settlement amount of
Common Stock, cash or combination of cash and Common Stock in satisfaction of
Conversion Obligations arising after the Final Notice Date shall be computed in
the same manner as set forth in Section 12.31(a), except that the "Cash
Settlement Averaging Period" shall be the 20 Trading Day period beginning on the
date that is the 23rd Trading Day prior to the Stated Maturity.

                                  ARTICLE XIII

                                  MISCELLANEOUS

Section 13.1. Trust Indenture Act Controls. If any provision of this Indenture
     limits, qualifies, or conflicts with the duties imposed by Section 318(c)
     of the TIA, such section of the TIA shall control. If any provision of this
     Indenture expressly modifies or excludes any provision of the TIA that may
     be so modified or excluded, the Indenture provision so modifying or
     excluding such provision of the TIA shall be deemed to apply.

Section 13.2. Notices. Any request, demand, authorization, notice, waiver,
     consent or communication shall be in writing and delivered in person
     (including by commercial courier services) or mailed by first-class mail,
     postage prepaid, addressed as follows or transmitted by facsimile
     transmission (confirmed by guaranteed overnight courier) to the following
     facsimile numbers:

     if to the Company:
     CONCORD COMMUNICATIONS, INC.
     400 Nickerson Road
     Marlboro, Massachusetts 01752
     Attention: Chief Financial Officer
     Facsimile No.: (508) 481-9772
     with a copy to:
     TESTA, HURWITZ & THIBEAULT, LLP
     125 High Street
     Boston, Massachusetts 02110
     Attention:  Kevin M. Barry, Esq.
     Facsimile No.: (617) 248-7100

     if to the Trustee:
     WILMINGTON TRUST COMPANY
     1100 North Market Street, Rodney Square North
     Wilmington, DE 19890-1615
     Attention: Corporate Capital Markets
     Facsimile No.: (302) 636-4145

The Company or the Trustee by notice given to the other in the manner provided
above may designate additional or different addresses for subsequent notices or
communications.

                                       54


Any notice or communication given to a Holder shall be mailed to
the Holder, by first-class mail, postage prepaid, at the Holder's address as it
appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed.

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

If the Company mails a notice or communication to the Holders, it shall mail a
copy to the Trustee and each Registrar, Paying Agent, Conversion Agent, or
co-registrar.

Section 13.3. Communication by Holders with Other Holders.

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

Section 13.4.     Certificate and Opinion as to Conditions Precedent.

Upon any request or application by the Company to the Trustee to take any action
under this Indenture (except in connection with the original issuance of
Securities), the Company shall furnish to the Trustee:

                  (a)      an Officers' Certificate stating that, in the opinion
         of the signers, all conditions precedent, if any, provided for in this
         Indenture relating to the proposed action have been complied with; and

                  (b)      an Opinion of Counsel stating that, in the opinion of
         such counsel, all such conditions precedent have been complied with.

Section 13.5. Statements Required in Certificate or Opinion.

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

                  (a)      a statement that each person making such Officers'
         Certificate or Opinion of Counsel has read such covenant or condition;

                  (b)      a brief statement as to the nature and scope of the
         examination or investigation upon which the statements or opinions
         contained in such Officers' Certificate or Opinion of Counsel are
         based;

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

                  (d)      a statement that, in the opinion of such person, such
         covenant or condition has been complied with.

In giving such Opinion of Counsel, counsel may rely as to factual matters on an
Officer's Certificate or on certificates of public officials.

Section 13.6. Separability 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.

Section 13.7. Rules by Trustee, Paying Agent, Conversion Agent, Registrar.

The Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar, the Conversion Agent and the Paying Agent may make reasonable rules
for their functions.

                                       55


Section 13.8. Legal Holidays.

If any specified date (including a date for giving notice) is a Legal Holiday,
the action shall be taken on the next succeeding day that is not a Legal
Holiday, and, if the action to be taken on such date is a payment in respect of
the Securities, no interest, if any, shall accrue for the intervening period.

Section 13.9. Governing Law; Submission to Jurisdiction; Service of Process.

This Indenture shall be governed by, and construed in accordance with, the laws
of the State of New York. The Company submits to the non-exclusive jurisdiction
of the courts of the State of New York and the courts of the United States of
America, in each case located in the Borough of Manhattan, New York, New York
over any suit, action or proceeding arising under or in connection with this
Indenture or the transactions contemplated hereby or the Securities. The Company
waives any objection that it may have to the venue of any suit, action or
proceeding arising under or in connection with this Indenture or the
transactions contemplated hereby or the Securities in the courts of the State of
New York or the courts of the United States of America, in each case located in
the Borough of Manhattan, New York, New York, or that such suit, action or
proceeding brought in the courts of the State of New York or the courts of the
United States of America, in each case located in the Borough of Manhattan, New
York, New York, was brought in an inconvenient court and agrees not to plead or
claim the same.

The Company agrees that service of all writs, process and summonses in any suit,
action or proceeding arising under or in connection with this Indenture or the
transactions contemplated thereby or the Securities against the Company in any
court of the State of New York or any United States Federal court, in each case,
sitting in the Borough of Manhattan, New York, New York, may be made upon CT
Corporation System at 111 Eighth Avenue, New York, New York 10011, whom the
Company irrevocably appoints as its authorized agent for service of process. The
Company represents and warrants that CT Corporation System has agreed to act as
the Company's agent for service of process. The Company agrees that such
appointment shall be irrevocable until the irrevocable appointment by the
Company of a successor in New York, New York as its authorized agent for such
purpose and the acceptance of such appointment by such successor. The Company
further agrees to take any and all action, including the filing of any and all
documents and instruments that may be necessary to continue such appointment in
full force and effect as aforesaid. If CT Corporation System shall cease to act
as the agent for service of process for the Company, the Company shall appoint
without delay, another such agent and provide prompt written notice to the
Trustee of such appointment.

Section 13.10. No Recourse Against Others.

No recourse under or upon any obligation, covenant or agreement contained in
this Indenture, or in any Security, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such, or against any past,
present or future stockholder, officer or director, as such, of the Company or
of any successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders and as part of the consideration for the issue of the
Securities.

Section 13.11. Successors.

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

Section 13.12. Multiple Originals.

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

                                     * * * *
            [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

                                       56


IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed this
Indenture on behalf of the respective parties hereto as of the date first above
written.

                               CONCORD COMMUNICATIONS, INC.

                               By: /s/ Melissa H. Cruz
                                   ---------------------------
                               Name: Melissa H. Cruz
                               Title: Executive Vice President
                                      of Business Services,
                                      Chief Financial Officer
                                      and Treasurer

                           SIGNATURE PAGE TO INDENTURE



                               WILMINGTON TRUST COMPANY
                               As Trustee

                               By: /s/ James J. McGinley
                                   ---------------------------
                               Name: James J. McGinley
                               Title: Authorized Signer

                           SIGNATURE PAGE TO INDENTURE



                                    EXHIBIT A

                           [FORM OF FACE OF SECURITY]

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

[THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF 1933"), OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:

                  (1)      REPRESENTS THAT IT IS (A) A "QUALIFIED INSTITUTIONAL
         BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933 OR (B)
         IT IS AN INSTITUTIONAL INVESTOR THAT IS AN "ACCREDITED INVESTOR" AS
         DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT OF
         1933 (AN "INSTITUTIONAL ACCREDITED INVESTOR");

                  (2)      AGREES THAT IT SHALL NOT WITHIN TWO YEARS AFTER THE
         ORIGINAL ISSUANCE OF THIS SECURITY, RESELL OR OTHERWISE TRANSFER THE
         SECURITY EVIDENCED HEREBY OR THE SHARES OF COMMON STOCK ISSUABLE UPON
         CONVERSION OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
         THEREOF, (B) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A
         "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN, AND IN COMPLIANCE WITH,
         RULE 144A UNDER THE SECURITIES ACT OF 1933, (C) PURSUANT TO THE
         EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
         ACT OF 1933 (IF AVAILABLE), (D) PURSUANT TO AN EXEMPTION FROM THE
         REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933 (IF AVAILABLE)
         TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
         FURNISHES TO AMERICAN STOCK TRANSFER AND TRUST COMPANY, AS TRANSFER
         AGENT (OR ANY SUCCESSOR TRANSFER AGENT, AS APPLICABLE), SUCH
         CERTIFICATIONS AND OPINION OF COUNSEL REQUIRED BY THE COMPANY OR THE
         TRANSFER AGENT OR (E) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
         BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND THAT
         CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND

                  (3)      AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
         THE SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER
         PURSUANT TO CLAUSE 2(C) OR 2(E) ABOVE), A NOTICE SUBSTANTIALLY TO THE
         EFFECT OF THIS LEGEND.] (1)

- -------------------------

(1) This legend should be included only if the Security is a Transfer Restricted
Security.

                                      A-1



[THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION
RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO
COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.](1)

                                      A-2



                          CONCORD COMMUNICATIONS, INC.
                     3.0% CONVERTIBLE SENIOR NOTES DUE 2023

No. ___ CUSIP: 206 186 AA6

CONCORD COMMUNICATIONS, INC., a Massachusetts corporation (the "Company", which
term shall include any successor corporation under the Indenture referred to on
the reverse hereof) promises to pay to _____________________, or registered
assigns, the principal amount of _______________ Dollars ($_________) [, or such
greater or lesser amount as is indicated in the records of the Trustee and the
Depositary,] on December 15, 2023, and to pay interest thereon from December 8,
2003 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, on June 15 and December 15 in each year (each, an
"INTEREST PAYMENT DATE"), commencing on June 15, 2004, at the rate of 3.0% per
annum, until the principal hereof is paid or made available for payment at
December 15, 2023 or upon acceleration, or until such date on which the
Securities are converted, redeemed or purchased as provided herein, and at the
rate of 3.0% per annum on any overdue principal and on any overdue installment
of interest and Additional Interest, if any. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date shall, as
provided in the Indenture (as hereinafter defined), be paid to the Person in
whose name this Security (or one or more predecessor Securities) is registered
at the close of business on the regular record date for such interest, which
shall be the June 1 or December 1 (whether or not a Business Day), as the case
may be, next preceding the corresponding Interest Payment Date (a "REGULAR
RECORD DATE"). Any such interest Additional Interest, if any, not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date and may be paid (a) to the Person in whose name this
Security (or one or more predecessor Securities) is registered at the close of
business on a special record date for the payment of such defaulted interest to
be fixed by the Trustee (a "SPECIAL RECORD DATE"), notice whereof shall be given
to Holders not less than 10 calendar days prior to such Special Record Date, or
(b) at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Reference is hereby made to the further provisions of
this Security set forth on the reverse side of this Security, which further
provisions shall for all purposes have the same effect as if set forth at this
place.

                                      A-3



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

Dated: CONCORD COMMUNICATIONS, INC.

                               By: -

                               Name:______________________________

                               Title:_____________________________

                                      A-4



                     TRUSTEE'S CERTIFICATE OF AUTHENTICATION

This is one of the Securities referred to in the within-mentioned Indenture.

Dated: WILMINGTON TRUST COMPANY,
                                as Trustee

                                By: _

                                      A-5



                          [FORM OF REVERSE OF SECURITY]
                     3.0% CONVERTIBLE SENIOR NOTES DUE 2023

This Security is one of a duly authorized issue of 3.0% Convertible Senior Notes
due 2023 (the "Securities") of CONCORD COMMUNICATIONS, INC., a Massachusetts
corporation (including any successor corporation under the Indenture hereinafter
referred to, the "Company"), issued under an Indenture, dated as of December 8,
2003 (the "Indenture"), between the Company and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as Trustee (the "Trustee"). The terms of the
Security include those stated in the Indenture, those made part of the Indenture
by reference to the Trust Indenture Act of 1939, as amended ("TIA"), and those
set forth in this Security. This Security is subject to all such terms, and
Holders are referred to the Indenture and the TIA for a statement of all such
terms. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Security and the terms of the Indenture,
the terms of the Indenture shall control. Capitalized terms used but not defined
herein have the meanings assigned to them in the Indenture referred to below
unless otherwise indicated.

1. Interest.

Interest on the Securities shall be computed on the basis of a 360-day year of
twelve 30-day months. If this Security is redeemed pursuant to Section 5 of this
Security or the Holder elects to require the Company to purchase this Security
pursuant to Section 6 of this Security, on a date that is after the Regular
Record Date and on or before the corresponding Interest Payment Date, interest
and Additional Interest, if any, accrued and unpaid hereon to, but excluding,
the applicable Redemption Date, Purchase Date or Designated Event Purchase Date
shall be paid to the same Holder to whom the Company pays the principal of this
Security.

Interest and Additional Interest, if any, on Securities converted after the
close of business on a Regular Record Date but prior to the opening of business
on the corresponding Interest Payment Date shall be paid to the Holder of the
Securities on the Regular Record Date but, upon conversion, the Holder must pay
the Company the interest and Additional Interest, if any, which has accrued and
shall be paid on such Interest Payment Date. No such payment need be made with
respect to Securities which shall be converted after a Regular Record Date and
prior to the corresponding Interest Payment Date after being called for
redemption.

Any reference herein to interest accrued or payable as of any date shall include
any Additional Interest accrued or payable on such date as provided in the
Registration Rights Agreement.

2. Method of Payment.

Payment of the principal of and interest and Additional Interest, if any, on the
Securities shall be in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts
or in Applicable Stock, as the case may be. The Holder must surrender the
Securities to the Paying Agent to collect payment of principal. Payment of
interest and Additional Interest, if any, on Certificated Securities shall be
made by check mailed to the address of the Person entitled thereto as such
address appears in the Register and payment of interest and Additional Interest,
if any, on Certificated Securities in aggregate principal amount in excess of
$5,000,000 shall be made by wire transfer in immediately available funds at the
election of such Holder. Notwithstanding the foregoing, so long as the
Securities are registered in the name of a Depositary or its nominee, all
payments with respect to the Securities shall be made by wire transfer of
immediately available funds to the account of the Depositary or its nominee.

3. Paying Agent, Registrar, Conversion Agent.

Initially, Wilmington Trust Company shall act as Paying Agent, Registrar and
Conversion Agent. The Company may appoint and change any Paying Agent, Registrar
and Conversion Agent without notice, other than notice to the Trustee; provided
that the Company shall maintain at least one Paying Agent in Borough of
Manhattan, New York, New York, which shall initially be an office or agency of
the Trustee. The Company or any of its Subsidiaries or any of their Affiliates
may act as Paying Agent, Registrar or Conversion Agent.

4. Indenture.

The Securities are general unsecured obligations of the Company limited to up to
$86,250,000 aggregate

                                      A-6



principal amount. The Indenture does not limit other indebtedness of the
Company, secured or unsecured.

5. Redemption of the Notes by the Company.

The Securities are redeemable for cash at the option of the Company, in whole or
in part, at any time or from time to time on, or after December 15, 2008 upon
not less than 20 calendar days', nor more than 60 calendar days', notice by mail
for a redemption price equal to the principal amount of those Securities plus
accrued and unpaid interest and Additional Interest, if any, on those
Securities, to, but excluding, the Redemption Date.

Notice of redemption pursuant to this Section of this Security shall be mailed
at least 20 calendar days but not more than 60 calendar days before the
Redemption Date to each Holder of Securities to be redeemed at the Holder's
registered address. If cash sufficient to pay the Redemption Price of all
Securities (or portions thereof) to be redeemed on the Redemption Date is
deposited with the Paying Agent prior to 10:00 a.m., New York City time, on the
Redemption Date, then, on such Redemption Date interest and Additional Interest,
if any ceases to accrue on such Securities or portions thereof. Securities in
denominations larger than $1,000 of principal amount may be redeemed in part but
only in integral multiples of $1,000 of principal amount.

6. Purchase by the Company at the Option of the Holder or Upon a Designated
Event.

Subject to the terms and conditions of the Indenture, the Company shall become
obligated to purchase, at the option of the Holder, all or any portion of the
Securities held by such Holder on December 15, 2008, December 15, 2013 and
December 15, 2018 in integral multiples of $1,000 at the Purchase Price in cash.
To exercise such right, a Holder shall deliver to the Paying Agent a Purchase
Notice containing the information set forth in the Indenture, at any time from
the opening of business on the date that is 22 Business Days prior to the
relevant Purchase Date until the close of business on the second Business Day
prior to such Purchase Date, and shall deliver the Securities to the Paying
Agent as set forth in the Indenture.

Subject to the terms and conditions of the Indenture, the Company shall become
obligated to purchase, at the option of the Holder, all or any portion of the
Securities held by such Holder upon a Designated Event in integral multiples of
$1,000 at the Designated Event Purchase Price in cash. To exercise such right, a
Holder shall deliver to the Paying Agent a Designated Event Purchase Notice
containing the information set forth in the Indenture at any time on or before
the 20th Business Day after the date of the Company's notice of the Designated
Event (subject to extension to comply with applicable law), and shall deliver
the Securities to the Paying Agent as set forth in the Indenture.

Holders have the right to withdraw any Purchase Notice or Designated Event
Purchase Notice by delivering to the Paying Agent a written notice of withdrawal
in accordance with the provisions of the Indenture.

If cash sufficient to pay the Purchase Price or Designated Event Purchase Price,
as the case may be, of all Securities or portions thereof to be purchased on the
Purchase Date or the Designated Event Purchase Date, as the case may be, is
deposited with the Paying Agent, at 10:00 a.m., New York City time, on the
Purchase Date or the Designated Event Purchase Date, as the case may be, such
Securities shall cease to be outstanding and interest and Additional Interest,
if any, on such Securities shall cease to accrue and the Holder thereof shall
have no other rights as such other than the right to receive the Purchase Price
or Designated Event Purchase Price upon surrender of such Security.

7. Conversion.

Subject to and in compliance with the provisions of the Indenture (including,
without limitation, the conditions to conversion of this Security set forth in
Section 12.1 thereof), a Holder is entitled, at such Holder's option, to convert
the Holder's Security (or any portion of the principal amount thereof that is
$1,000 or an integral multiple $1,000), into fully paid and nonassessable shares
of Common Stock at the Conversion Rate in effect on the date of conversion.

Upon conversion, the Company shall have the right to deliver, in lieu of shares
of Common Stock, cash or a combination of cash and shares of Common Stock. If
the Company elects to pay cash in lieu of shares, the payment amount shall be
the product of (1) a number equal to (x) the aggregate original principal amount
of Securities to be converted divided by 1,000, multiplied by (y) the Conversion
Rate, and (2) the arithmetic average of the Closing Prices of Common Stock
during the Cash Settlement Averaging Period.

                                      A-7



Until the Securities are surrendered for conversion, the Company shall not be
required to notify Holders of its method for settling the excess amount of its
conversion obligation of the $1,000 principal amount of the Securities.

The Company shall notify Holders of any event triggering the right to convert
the Securities as specified above in accordance with the Indenture.

A Security in respect of which a Holder has delivered a Purchase Notice or
Designated Event Purchase Notice, as the case may be, exercising the right of
such Holder to require the Company to purchase such Security may be converted
only if such Purchase Notice or Designated Event Purchase Notice is withdrawn in
accordance with the terms of the Indenture.

The initial Conversion Rate is 37.2148 shares of Common Stock per $1,000
principal amount of this Security, subject to adjustment in certain events
described in the Indenture. This reflects an initial Conversion Price of
approximately $26.87 per share.

To surrender a Security for conversion, a Holder must, in the case of Global
Securities, comply with the Applicable Procedures of the Depositary in effect at
that time, and in the case of Certificated Securities, (1) surrender the
Security to the Conversion Agent, (2) complete and manually sign the conversion
notice below (or complete and manually sign a facsimile of such notice) and
deliver such notice to the Conversion Agent, (3) if required by the Conversion
Agent, furnish appropriate endorsements and transfer documents and (4) pay all
funds required, if any, relating to interest or Additional Interest, if any, and
any transfer or similar tax or duty, if required.

No fractional share of Common Stock shall be issued upon conversion of any
Security. Instead, the Company shall pay a cash adjustment as provided in the
Indenture.

No payment or adjustment shall be made for accrued and unpaid interest and
Additional Interest, if any, or dividends on the Common Stock, except as
provided in the Indenture.

If the Company (i) is a party to a consolidation, merger or binding share
exchange (ii) reclassifies the Common Stock or (iii) conveys, transfers or
leases its properties and assets substantially as an entirety to any Person, the
right to convert a Security into shares of Common Stock may be changed into a
right to convert it into securities, cash or other assets of the Company or such
other Person, in each case in accordance with the Indenture.

8. Denominations; Transfer; Exchange.

The Securities are in fully registered form, without coupons, in denominations
of $1,000 of principal amount and integral multiples of $1,000. A Holder may
transfer or exchange Securities in accordance with the Indenture. The Registrar
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not transfer or exchange any
Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities in respect of which a Purchase Notice or Designated Event Purchase
Notice has been given and not withdrawn (except, in the case of a Security to be
purchased in part, the portion of the Security not to be purchased) or any
Securities for a period of 15 days before the mailing of a notice of redemption
of Securities to be redeemed.

9. Persons Deemed Owners.

The registered Holder of this Security may be treated as the owner of this
Security for all purposes.

10. Unclaimed Money or Securities.

The Trustee and the Paying Agent shall return to the Company upon written
request any cash or securities held by them for the payment of any amount with
respect to the Securities that remains unclaimed for two years, subject to
applicable unclaimed property law. After return to the Company, Holders entitled
to the money or securities must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.

11. Amendment; Waiver.

Subject to certain exceptions set forth in the Indenture, (i) the Indenture or
the Securities may be amended with the written consent or affirmative vote of
the Holders of at least a majority in aggregate principal amount of the
outstanding Securities and (ii) certain Defaults may be waived with the written
consent or affirmative vote of the Holders of a majority in aggregate principal
amount of the outstanding Securities.

                                      A-8



Without the consent of any Holder, the Company and the Trustee may amend the
Indenture or the Securities to (i) add to the covenants of the Company for the
benefit of the Holders of Securities, (ii) surrender any right or power
conferred upon the Company in the Indenture, (iii) provide for conversion rights
of Holders of Securities if any reclassification or change of the Company's
Common Stock or any consolidation, merger or sale of all or substantially all of
the Company's assets occurs, (iv) provide for the assumption of the Company's
obligations to the Holders of Securities in the case of a merger, consolidation,
conveyance, transfer, sale, lease or other disposition pursuant to Article VII
of the Indenture, (v) increase the Conversion Rate; provided, however, that such
increase in the Conversion Rate shall not adversely affect the interest of the
Holders of Securities (after taking into account tax and other consequences of
such increase), (vi) comply with the requirements of the SEC in order to effect
or maintain the qualification of the Indenture under the TIA, (vii) make any
changes or modifications necessary in connection with the registration of the
Securities under the Securities Act as contemplated in the Registration Rights
Agreement; provided, however, that such action pursuant to this clause does not,
in the good faith opinion of the Board of Directors of the Company (as evidenced
by a Board Resolution) and the Trustee, adversely affect the interests of the
Holders of Securities in any material respect, (viii) cure any ambiguity,
correct or supplement any provision in the Indenture which may be inconsistent
with any other provision therein or which is otherwise defective, or to make any
other provisions with respect to matters or questions arising under the
Indenture which the Company may deem necessary or desirable and which shall not
be inconsistent with the provisions of the Indenture; provided, however, that
such action pursuant to this clause does not, in the good faith opinion of the
Board of Directors of the Company (as evidenced by a Board Resolution) and the
Trustee, adversely affect the interests of the Holders of Securities in any
material respect, (ix) to evidence the succession of another Person to the
Company or any other obligor upon the Securities, and the assumption by any such
successor of the covenants of the Company or such obligor herein and in the
Securities, in each case in compliance with the provisions of the Indenture, (x)
to evidence and provide the acceptance of the appointment of a successor trustee
thereunder and (xi) add or modify any other provisions in the Indenture with
respect to matters or questions arising thereunder which the Company and the
Trustee may deem necessary or desirable and which shall not adversely affect the
interests of the Holders of Securities.

12. Defaults and Remedies.

If any Event of Default other than as a result of certain events of bankruptcy,
insolvency or reorganization of the Company or its Subsidiaries occurs and is
continuing, the principal of all the Securities may be declared due and payable
in the manner and with the effect provided in the Indenture. If an Event of
Default occurs as a result of certain events of bankruptcy, insolvency or
reorganization of the Company or its Subsidiaries, the principal of all the
Securities shall become due and payable immediately without any declaration or
other act on the part of the Trustee or any Holder, all as and to the extent
provided in the Indenture.

13. Trustee Dealings with the Company.

Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.

14. Calculations in Respect of Securities.

The Company or its agents shall be responsible for making all calculations
called for under the Securities including, but not limited to, determination of
the Market Price and Closing Sale Price of the Applicable Stock, the number of
shares of Applicable Stock and/or the amount of cash issuable or payable upon
conversion and the amounts of interest and Additional Interest, if any, on the
Securities. Any calculations made in good faith and without manifest error shall
be final and binding on Holders of the Securities. The Company or its agents
shall be required to deliver to the Trustee a schedule of its calculations and
the Trustee shall be entitled to conclusively rely upon the accuracy of such
calculations without independent verification.

15. No Recourse Against Others.

No recourse under or upon any obligation, covenant or agreement contained in the
Indenture, or in this

                                      A-9



Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future stockholder,
officer or director, as such, of the Company or of any successor, either
directly or through the Company or any successor, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the Holders and as
part of the consideration for the issue of the Securities.

16. Authentication.

This Security shall not be valid until an authorized signatory of the Trustee
signs, manually or by facsimile, the Trustee's Certificate of Authentication on
the other side of this Security.

17. Abbreviations.

Customary abbreviations may be used in the name of a Holder or an assignee, such
as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN
(=joint tenants with right of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).

18. INDENTURE TO CONTROL; GOVERNING LAW.

IN THE CASE OF ANY CONFLICT BETWEEN THE PROVISIONS OF THIS SECURITY AND THE
INDENTURE, THE PROVISIONS OF THE INDENTURE SHALL CONTROL. THE INDENTURE AND THIS
SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.

The Company shall furnish to any Holder upon written request and without charge
a copy of the Indenture which has in it the text of this Security in larger
type. Requests may be made to:

CONCORD COMMUNICATIONS, INC.

400 Nickerson Road
Marlboro, Massachusetts  01752
Attention:  Chief Financial Officer
Facsimile No.:  (508) 481-9772

with a copy to:
TESTA, HURWITZ & THIBEAULT, LLP
125 High Street
Boston, Massachusetts 02110
Attention:  Kevin M. Barry, Esq.
Facsimile No.: (617) 248-7100

19. Registration Rights.

The Holders of the Securities are entitled to the benefits of a Registration
Rights Agreement, dated as of December 8, 2003, between the Company and Bear,
Stearns & Co. Inc., including the receipt of Additional Interest upon a
registration default (as defined in such agreement).

                                      A-10



                                 ASSIGNMENT FORM

To assign this Security, fill in the form below:
I or we assign and transfer this Security to

__________________

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

____________
____________
__________________

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

and irrevocably appoint ____________________________________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.

Your Signature(s):

Date:  _______________________ ____________________________________________
                                    (Sign exactly as your name(s) appears on the
                                     other side of this Security)

Signature Guaranteed

_____________________________________
Participant in a Recognized Signature
Guarantee Medallion Program

By:_________
              Authorized Signatory

                                      A-11



                       OPTION OF HOLDER TO ELECT PURCHASE

If you wish to have this Security purchased by the Company pursuant to Article
IV (Purchase at the Option of Holders on Specific Dates) or Article V (Purchase
at the Option of Holders Upon a Designated Event) of the Indenture, check the
box: Article IV[ ] Article V[ ].

If this Security is to be purchased by the Company pursuant to Article IV of the
Indenture, check the box for the applicable Purchase Date: December 15, 2008 [ ]
December 15, 2013 [ ] December 15, 2018 [ ].

If you wish to have a portion of this Security purchased by the Company pursuant
to Article IV or Article V of the Indenture, as applicable, state the amount (in
Principal Amount): $ ___________.

If certificated, the certificate numbers of the Securities to be delivered for
purchase are: .

Any purchase of Securities pursuant hereto shall be pursuant to the terms and
conditions specified in the Indenture.

                               Your Signature(s):

Date:  _________________ ____________________________________________
                            (Sign exactly as your name(s) appears on the
                             other side of this Security)

Signature Guaranteed

_____________________________________
Participant in a Recognized Signature
Guarantee Medallion Program

By:_________
             Authorized Signatory

                                      A-12



                                CONVERSION NOTICE

To convert this Security into Common Stock of the Company, check the box[  ].

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

Please check one:

[ ]       I certify that neither I nor any other Person shall become a 10%
         Stockholder upon satisfaction by the Company of the Conversion
         Obligation underlying this Conversion Notice in Common Stock.

[ ]      I do not certify that neither I nor any other Person shall become a 10%
         Stockholder upon satisfaction by the Company of the Conversion
         Obligation underlying this Conversion Notice in Common Stock.

"10% Stockholder" means a Person that owns, directly or indirectly, applying the
provisions of Section 958(a) of the Internal Revenue Code of 1986, as amended
(the "Code"), or by attribution, applying the provisions of Section 958(b) of
the Code, 10% or more of the outstanding shares of Common Stock.

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

______________________

               (Insert the other person's soc. sec. or tax ID no.)
____________
____________
____________
          (Print or type the other person's name, address and zip code)

                                    Your Signature(s):

Date:  _______________________  ________________________________________________
                                 (Sign exactly as your name(s) appears on the
                                         other side of this Security)
Signature Guaranteed

_____________________________________
Participant in a Recognized Signature
Guarantee Medallion Program

By:_________
            Authorized Signatory

                              TRANSFER CERTIFICATE(2)
                   RE: 3.0% CONVERTIBLE SENIOR NOTES DUE 2023
       (THE "SECURITIES") OF CONCORD COMMUNICATIONS, INC. (THE "COMPANY")

This certificate relates to $_______ principal amount of Securities owned in
(check applicable box) [ ] book-entry [ ] definitive form by ______________ (the
"Transferor").

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

In connection with such request and in respect of each such Security, the
Transferor does hereby certify that the Transferor is familiar with transfer
restrictions relating to the Securities as provided in Section 2.6 and Section
2.12 of the Indenture dated December 8, 2003 between the Company and Wilmington
Trust Company, as Trustee (the "Indenture"), and the transfer of such Security
is being made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act") (check applicable box)
or the transfer or exchange, as the case may be, of such Security does not
require registration under the Securities Act because (check applicable box):

[ ]      Such Security is being transferred to the Company or a Subsidiary; or

                  [ ]      Such Security is being transferred to a Qualified
                           Institutional Buyer in compliance with Rule 144A
                           under the Securities Act; or

                  [ ]      Such Security is being transferred pursuant to and in
                           compliance with an exemption from the registration
                           requirements under the Securities Act in accordance
                           with Rule 144 (or any successor thereto) ("Rule 144")
                           under the Securities Act; or

                  [ ]      Such Security is being transferred to an
                           institutional investor that is an "accredited
                           investor" (as defined in Rule 501(a)(1), (2), (3) or
                           (7) under the Securities Act)

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

                                      A-13



                           that has transferred a letter making certain
                           representations, warranties and agreements relating
                           to restrictions on transfer and an opinion of counsel
                           to EquiServe, LLP as transfer agent (or any successor
                           transfer agent, as applicable) that such transfer is
                           in compliance with the Securities Act.

                  [ ]      Such Security is being transferred pursuant to an
                           effective registration statement under the Securities
                           Act; or

                  [ ]      Such Security is being acquired for the Transferor's
                           own account, without transfer.

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

Date: ____________
                           Signature(s) of Transferor

(If the registered owner is a corporation, partnership or fiduciary, the title
of the person signing on behalf of such registered owner must be stated.)
Signature Guaranteed

_____________________________________
Participant in a Recognized Signature
Guarantee Medallion Program

By: __________________________
         Authorized Signatory

                                      A-14



                                    EXHIBIT B
                     [FORM OF CERTIFICATE TO BE DELIVERED BY
                     TRANSFEREE IN CONNECTION WITH TRANSFERS
                     TO INSTITUTIONAL ACCREDITED INVESTORS]

                                                                          [DATE]

Wilmington Trust Company, as Trustee
1100 North Market Street, Rodney Square North
Wilmington, DE  19890-1615
Attention:  Corporate Capital Markets
EquiServe, LLP,
as Transfer Agent
Re:      Concord Communications, Inc.

Ladies and Gentlemen:

In connection with the undersigned's proposed purchase of $____________
aggregate principal amount of 3.0% Convertible Senior Notes due 2023 (the
"Notes") of Concord Communications, Inc. (the "Company") or _____________ shares
of Common Stock of the Company issued upon conversion of the Notes, par value
$.01 per share (the "Common Stock," and together with the Notes, the
"Securities"), the undersigned confirms, represents and warrants that:

         (1)      The undersigned is an institutional "accredited investor"
         within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
         Securities Act of 1933, as amended (the "Securities Act") (an
         "Institutional Accredited Investor").

         (2)      (A) Any purchase of the Securities by the undersigned shall be
         for the undersigned's own account or for the account of one or more
         other Institutional Accredited Investors or as fiduciary for the
         account of one or more trusts, each of which is an "accredited
         investor" within the meaning of Rule 501(a)(7) under the Securities Act
         and for each of which the undersigned exercises sole investment
         discretion or (B) the undersigned is a "bank", within the meaning of
         Section 3(a)(2) of the Securities Act, or a "savings and loan
         association" or other institution described in Section 3(a)(5)(A) of
         the Securities Act that is acquiring the Securities as fiduciary for
         the account of one or more institutions for which the undersigned
         exercises sold investment discretion.

         (3)      The undersigned has such knowledge and experience in financial
         and business matters that the undersigned is capable of evaluating the
         merits and risks of its investment in the Securities, and the
         undersigned and any accounts for which it is acting is each able to
         bear the economic risk of its or their investment.

         (4)      The undersigned has been given an opportunity to ask questions
         and receive answers concerning the terms and conditions of the
         Securities and to obtain any additional information which the Company
         possesses or can acquire without reasonable effort or expense that is
         necessary to verify the accuracy of the information furnished.

         (5)      The undersigned is not acquiring the Securities with a view to
         distribution thereof or with any present intention of offering or
         selling any Securities, except as permitted below; provided that the
         disposition of the undersigned's property and the property of any
         accounts for which the undersigned is acting as fiduciary shall remain
         at all times within the undersigned's control.

         (6)      The undersigned understands that the Securities have not been
         registered under the Securities Act or any applicable state securities
         laws.

         (7)      The undersigned agrees, on its own behalf and on behalf of
         each account for which the undersigned acquires any Securities, that if
         in the future the undersigned decides to resell or otherwise transfer
         such Securities within two years after the original issuance of the
         Notes, such Securities may be resold or otherwise transferred only:

                           (A)      to the Company or any subsidiary thereof;

                                      B-1



                           (B)      with respect to Notes only, to a person
                  which is a "qualified institutional buyer" (as defined in Rule
                  144A under the Securities Act) in compliance with Rule 144A
                  under the Securities Act;

                           (C)      pursuant to the exemption from registration
                  provided by Rule 144 under the Securities Act (if available);

                           (D)      pursuant to an exemption from registration
                  under the Securities Act to an Institutional Accredited
                  Investor that prior to such transfer, furnishes to you (and
                  the Trustee or the Transfer Agent, as the case may be) a
                  signed letter substantially in the form of this letter, a
                  transfer certificate substantially in the form provided in the
                  Indenture and an opinion of counsel; or

                           (E)      pursuant to a registration statement which
                  has been declared effective under the Securities Act and
                  continues to be effective at the time of such transfer.

         The undersigned further agrees to provide to any person purchasing any
         of the Securities from us a notice advising such purchaser that resales
         of the Securities are restricted as stated herein.

         (8)      The undersigned understands that, on any proposed resale of
         any Securities, the undersigned shall be required to furnish to the
         Trustee or the Transfer Agent, as the case may be, and the Company such
         certifications, legal opinions and other information as you and the
         Company may reasonably require to confirm that the proposed sale
         complies with the foregoing restrictions. The undersigned further
         understands that the Securities purchased by the undersigned shall be
         certificated securities and shall bear a legend to the foregoing
         effect.

Each of the Company, the Trustee or the Transfer Agent, as the case may be, and
the initial purchasers of the Securities are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.

                                Very truly yours,

                           By:_
                              Name:
                              Title:
                              Address:

                                      B-2



                                    EXHIBIT C

                         [FORM OF RESTRICTIVE LEGEND FOR
                      COMMON STOCK ISSUED UPON CONVERSION]

THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF 1933"), OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:

         (1)      REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS
         DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933 OR (B) IT IS AN
         INSTITUTIONAL INVESTOR THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN
         RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT (AN
         "INSTITUTIONAL ACCREDITED INVESTOR");

         (2)      AGREES THAT IT SHALL NOT, WITHIN TWO YEARS AFTER THE ORIGINAL
         ISSUANCE OF THE SECURITY UPON THE CONVERSION OF WHICH THE SHARES OF
         COMMON STOCK EVIDENCED HEREBY WERE ISSUED, RESELL OR OTHERWISE TRANSFER
         THE SECURITY EVIDENCED HEREBY EXCEPT (A) TO THE COMPANY OR ANY
         SUBSIDIARY THEREOF, (B) PURSUANT TO THE EXEMPTION FROM REGISTRATION
         PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE),
         (C) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
         SECURITIES ACT OF 1933 (IF AVAILABLE) TO AN INSTITUTIONAL ACCREDITED
         INVESTOR THAT PRIOR TO SUCH TRANSFER, FURNISHES TO EQUISERVE, LLP, AS
         TRANSFER AGENT (OR ANY SUCCESSOR TRANSFER AGENT, AS APPLICABLE),
         CERTIFICATIONS AND OPINION OF COUNSEL REQUIRED BY THE COMPANY OR
         TRANSFER AGENT OR (D) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
         BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND THAT
         CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND

         (3)      AGREES THAT IT SHALL DELIVER TO EACH PERSON TO WHOM THE
         SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER
         PURSUANT TO CLAUSE 2(B) OR 2(D) ABOVE), A NOTICE SUBSTANTIALLY TO THE
         EFFECT OF THIS LEGEND.]

                                      C-1

EX-4.5

                                                                     EXHIBIT 4.5
                                                                  EXECUTION COPY


                          CONCORD COMMUNICATIONS, INC.


                     3.0% CONVERTIBLE SENIOR NOTES DUE 2023


                         REGISTRATION RIGHTS AGREEMENT

                                                        December 8, 2003




BEAR, STEARNS & CO. INC.
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:

      Concord Communications, Inc., a Massachusetts corporation (the "Company"),
proposes to issue and sell to the initial purchaser named in the purchase
agreement (the "Initial Purchaser"), upon the terms set forth in such purchase
agreement dated December 2, 2003 (the "Purchase Agreement"), its 3.0%
Convertible Senior Notes due 2023 (the "Securities"). As an inducement to the
Initial Purchaser to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Initial Purchaser thereunder, the Company
agrees with the Initial Purchaser for the benefit of Holders (as defined herein)
from time to time of the Registrable Securities (as defined herein) as follows:

      1. Definitions.

      (a) Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Purchase Agreement. As used in this Agreement,
the following defined terms shall have the following meanings:

      "Additional Interest" has the meaning assigned thereto in Section 7(a)
hereof.

      "Additional Shares" has the meaning assigned thereto in Section 7(a)
hereof.

      "Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with such specified person. For purposes of this definition, control of a person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such person whether by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.

      "Applicable Amount" means, (i) with respect to the Securities, the
principal amount of the Securities and (ii) with respect to shares of Common
Stock issued upon conversion of the

Securities pursuant to the Indenture, the principal amount of Securities that
would then be convertible into such number of shares.

      "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.

      "Commission" means the United States Securities and Exchange Commission,
or any other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.

      "Common Stock" means the Company's common stock, par value $0.01 per
share.

      "DTC" means The Depository Trust Company.

      "Effectiveness Period" has the meaning assigned thereto in Section 2(b)(i)
hereof.

      "Effective Time" means the time at which the Commission declares any Shelf
Registration Statement effective or at which any Shelf Registration Statement
otherwise becomes effective.

      "Exchange Act" means the United States Securities Exchange Act of 1934, as
amended.

      "Holder" means any person that is the record owner of Registrable
Securities (and includes any person that has a beneficial interest in any
Registrable Security in book-entry form).

      "Indenture" means the Indenture, dated as of December 8, 2003, between the
Company and Wilmington Trust Company, pursuant to which the Securities are to be
issued, and as amended and supplemented from time to time in accordance with its
terms.

      "Issue Date" means the first date of original issuance of the Securities.

      "Majority of Holders" means Holders holding over 50% of the aggregate
principal amount of Registrable Securities outstanding.

      "Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Election and Questionnaire substantially in the form of
Appendix A hereto.

      "Notice Holder" has the meaning assigned thereto in Section 3(a)(i)
hereof. The term "person" means an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.

      "Prospectus" means the prospectus included in any Shelf Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by any Shelf Registration Statement and by


                                       2

all other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.

      "Registrable Securities" means all or any portion of the Securities issued
from time to time under the Indenture in registered form and the shares of
Common Stock issuable upon conversion of such Securities until the earliest of:
(x) the date on which such security has been registered under the Securities Act
and disposed of pursuant to an effective registration statement, (y) the date
that is two years after the later of (1) the last date of original issuance of
the Securities and (2) the last date that the Company or any of its Affiliates
was the owner of such Securities (or any predecessor thereto), or such shorter
period of time as permitted by Rule 144(k) (or any successor rule or regulation)
under the Securities Act or any successor provisions thereunder or (z) its sale
to the public pursuant to Rule 144 (or any successor rule or regulation) under
the Securities Act.

      "Registration Default" has the meaning assigned thereto in Section 7(a)
hereof.

      "Securities Act" means the United States Securities Act of 1933, as
amended.

      "Shelf Registration" means a registration effected pursuant to Section 2
hereof.

      "Shelf Registration Statement" means a "shelf" registration statement
filed under the Securities Act providing for the registration of, and the sale
on a continuous or delayed basis by the Holders of, all of the Registrable
Securities pursuant to Rule 415 under the Securities Act and/or any similar rule
that may be adopted by the Commission, filed by the Company pursuant to the
provisions of Section 2 of this Agreement, including the Prospectus contained
therein, any amendments and supplements to such registration statement,
including post-effective amendments, and all exhibits and all material
incorporated by reference in such registration statement, and any additional
"shelf" registration statements filed under the Securities Act to permit the
registration and sale of Registrable Securities pursuant to Section 3(a)(ii)
hereof.

      "Suspension Period" has the meaning assigned thereto in Section 2(c)
hereof.

      "Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
as the same shall be amended from time to time. The term "underwriter" means any
underwriter, or any person deemed to be an underwriter pursuant to the
Securities Act and Exchange Act and the respective rules and regulations
thereunder, as in effect at any relevant time, of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.

      (a) Wherever there is a reference in this Agreement to a percentage of the
"principal amount" of Registrable Securities or to a percentage of Registrable
Securities, each share of Common Stock issued upon conversion of the Securities
shall represent a principal amount or percentage of Registrable Securities
determined based on a quotient, (i) the numerator of which


                                       3

shall be equal to the aggregate principal amount of Securities issued, less the
aggregate principal amount of Securities outstanding as of the date of
determination, and (ii) the denominator of which shall be equal to the aggregate
number of shares of Common Stock issued upon conversion of the Securities as of
the date of determination.

      2. Shelf Registration.

      (a) The Company shall, no later than 90 calendar days following the Issue
Date, file with the Commission a Shelf Registration Statement relating to the
offer and sale of the Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by such Holders and,
thereafter, shall use its reasonable best efforts to cause such initial Shelf
Registration Statement to be declared effective under the Securities Act no
later than 210 calendar days following the Issue Date; provided, however, that
no Holder shall be entitled to be named as a selling securityholder in any Shelf
Registration Statement as of the date it is declared effective or to use the
Prospectus forming a part thereof for offers and resales of Registrable
Securities unless such Holder is a Notice Holder.

      (b) Subject to Section 2(c) hereof, the Company shall use its reasonable
best efforts:

            (i)   to keep any Shelf Registration Statement continuously
      effective, supplemented and amended as required by the provisions of
      Section 3(j) hereof, in order to permit the Prospectus forming a part
      thereof to be usable by Holders until the earlier of: (1) two years from
      the last date of original issuance of any Securities or (2) such shorter
      period ending on the date that (x) all of the Holders of Registrable
      Securities that are not Affiliates of the Company are able to sell all
      Registrable Securities immediately without restriction pursuant to Rule
      144(k) under the Securities Act or any successor rule thereto, (y) all
      Registrable Securities registered under the Shelf Registration Statements
      have been sold or (z) all Registrable Securities have ceased to be
      outstanding (such period being referred to herein as the "Effectiveness
      Period"); and

            (ii)  after the Effective Time of the initial Shelf Registration
      Statement, after the receipt of a completed and signed Notice and
      Questionnaire from any Holder of Registrable Securities that is not then a
      Notice Holder, to take the actions provided for in Section 3(a)(ii)
      hereof.

The Company shall be deemed not to have used its reasonable best efforts to keep
any Shelf Registration Statement effective during the Effectiveness Period if
the Company voluntarily takes any action that would result in Holders of
Registrable Securities covered thereby not being able to offer and sell any of
such Registrable Securities under such Shelf Registration Statement during that
period, unless such action is (A) required by applicable law and the Company
thereafter promptly complies with the requirements of Section 3(j) hereof or (B)
permitted pursuant to Section 2(c) hereof.


                                       4

      (c) After the Effective Time of the initial Shelf Registration Statement,
the Company may suspend the use of any Prospectus by written notice to the
Notice Holders for a period not to exceed an aggregate of 45 calendar days in
any 90 calendar day period (each such period, a "Suspension Period") if:

            (i)   an event has occurred and is continuing as a result of which
      the Shelf Registration Statement would, in the Company's judgment, contain
      an untrue statement of a material fact or omit to state a material fact
      required to be stated therein or necessary to make the statements therein
      not misleading; and

            (ii)  the Company determines in good faith that the disclosure of
      such event at such time would have a material adverse effect on the
      Company and its subsidiaries taken as a whole;

provided, that in the event the disclosure relates to a previously undisclosed
proposed or pending material business transaction, the disclosure of which would
impede the Company's ability to consummate such transaction, the Company may
extend a Suspension Period from 30 calendar days to 60 calendar days; provided,
however, that Suspension Periods (including, without limitation, any such
extension of a Suspension Period) shall not exceed an aggregate of 120 calendar
days in any 360 calendar day period.

      3. Registration Procedures. In connection with the Shelf Registration
Statements, the following provisions shall apply:

      (a)   (i)   Not less than 30 calendar days prior to the time the Company
      in good faith intends to have the initial Shelf Registration Statement
      declared effective, the Company shall distribute the Notice and
      Questionnaire to the Holders of Registrable Securities. The Company shall
      take action to name as a selling securityholder in the initial Shelf
      Registration Statement at the Effective Time each Holder that completes,
      executes and delivers a Notice and Questionnaire to the Company at the
      address set forth in the Notice and Questionnaire (a "Notice Holder")
      prior to or on the 20th calendar day after such Holder's receipt thereof
      so that such Holder is permitted to deliver the Prospectus forming a part
      thereof as of such time to purchasers of such Holder's Registrable
      Securities in accordance with applicable law. The Company shall not be
      required to take any action to name any Holder as a selling securityholder
      in the initial Shelf Registration Statement at the time of its
      effectiveness or to enable any Holder to use the Prospectus forming a part
      thereof for resales of Registrable Securities unless such Holder has
      returned a completed and signed Notice and Questionnaire to the Company in
      a timely manner.

            (ii)  After the Effective Time of the initial Shelf Registration
      Statement, the Company shall, upon the request of any Holder of
      Registrable Securities that is not then a Notice Holder, promptly send a
      Notice and Questionnaire to such Holder. After the Effective Time of the
      initial Shelf Registration Statement, the Company


                                       5

      shall (A) after the date a completed and signed Notice and Questionnaire
      is delivered to the Company, prepare and file with the Commission (x) a
      supplement to the Prospectus as promptly as practicable or, if required by
      applicable law, a post-effective amendment to the Shelf Registration
      Statement or an additional Shelf Registration Statement as promptly as
      practicable after the end of each fiscal quarter and (y) any other
      document required by applicable law, so that the Holder delivering such
      Notice and Questionnaire is named as a selling securityholder in a Shelf
      Registration Statement and is permitted to deliver the Prospectus to
      purchasers of such Holder's Registrable Securities in accordance with
      applicable law, and (B) if the Company shall file a post-effective
      amendment to the Shelf Registration Statement, or an additional Shelf
      Registration Statement, use its reasonable best efforts to cause such
      post-effective amendment or such additional Shelf Registration Statement
      to become effective under the Securities Act as promptly as is
      practicable; provided, however, that if a Notice and Questionnaire is
      delivered to the Company during a Suspension Period, the Company shall not
      be obligated to take the actions set forth in this clause (ii) until the
      termination of such Suspension Period.

      (b) The Company shall furnish to each Notice Holder, prior to the
Effective Time, a copy of the Shelf Registration Statement initially filed with
the Commission, and shall furnish to such Notice Holders, prior to the filing
with the Commission, copies of each amendment thereto and each amendment or
supplement, if any, to the Prospectus included therein (other than supplements
solely for the purpose of naming one or more Notice Holders as selling
securityholders), and shall use its best efforts to reflect in each such
document, at the Effective Time or when so filed with the Commission, as the
case may be, such comments as such Notice Holders and their respective counsel
reasonably may propose.

      (c) The Company shall promptly take such action as may be necessary so
that (i) each of the Shelf Registration Statements and any amendment thereto and
the Prospectus forming a part thereof and any amendment or supplement thereto
(and each report or other document incorporated therein by reference in each
case) complies in all material respects with the Securities Act and the Exchange
Act and the respective rules and regulations thereunder, as in effect at any
relevant time, (ii) each of the Shelf Registration Statements and any amendment
thereto does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (iii) each of the
Prospectus forming a part of any Shelf Registration Statement, and any amendment
or supplement to such Prospectus, in the form delivered to purchasers of the
Registrable Securities during the Effectiveness Period, does not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.

      (d) The Company shall promptly advise each Notice Holder, and shall
confirm such advice in writing if so requested by any such Notice Holder:

            (i)   when the initial Shelf Registration Statement has been filed
      with the Commission and when the initial Shelf Registration Statement has
      become effective, in each case making a public announcement thereof in a
      newspaper of general


                                       6

      circulation in The City of New York or by publishing the information on
      the Company's website or through such other broad, public medium as the
      Company may see fit;

            (ii)  when any Prospectus supplement, Shelf Registration Statement
      or post-effective amendment to a Shelf Registration has been filed with
      the Commission and, with respect to a Shelf Registration Statement or any
      post-effective amendment, when the same has been declared effective by the
      Commission;

            (iii) of any request by the Commission for amendments or supplements
      to any Shelf Registration Statement or the Prospectus included therein or
      for additional information;

            (iv)  of the issuance by the Commission of any stop order suspending
      the effectiveness of any Shelf Registration Statement or the initiation of
      any proceedings for such purpose;

            (v)   of the receipt by the Company of any notification with respect
      to the suspension of the qualification of the securities included in any
      Shelf Registration Statement for sale in any jurisdiction or the
      initiation of any proceeding for such purpose; and

            (vi)  of the happening of any event or the existence of any state of
      facts that requires the making of any changes in any Shelf Registration
      Statement or the Prospectus included therein so that, as of such date,
      such Shelf Registration Statement and Prospectus do not contain an untrue
      statement of a material fact and do not omit to state a material fact
      required to be stated therein or necessary to make the statements therein
      (in the case of the Prospectus, in the light of the circumstances under
      which they were made) not misleading (which advice shall be accompanied by
      an instruction to such Holders to suspend the use of the Prospectus until
      the requisite changes have been made, which notice need not specify the
      nature of the event giving rise to such suspension).

      (e) The Company shall use its best efforts to prevent the issuance, and if
issued to obtain the withdrawal at the earliest possible time, of any order
suspending the effectiveness of any Shelf Registration Statement.

      (f) As promptly as reasonably practicable furnish to each Notice Holder,
upon their request and without charge, at least one (1) conformed copy of the
Registration Statement and any amendment thereto, including financial statements
but excluding schedules, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits (unless requested in writing to the
Company by such Notice Holder).

      (g) The Company shall, during the Effectiveness Period, deliver to each
Notice Holder, without charge, as many copies of each Prospectus in which the
Notice Holder is listed as a selling securityholder included in the applicable
Shelf Registration Statement and any amendment or supplement thereto as such
Notice Holder may reasonably request; and the


                                       7

Company consents (except during a Suspension Period or during the continuance of
any event described in Section 3(d) (iii)-(vi) above) to the use of the
Prospectus and any amendment or supplement thereto by each of the Notice Holders
in connection with the offering and sale of the Registrable Securities covered
by the Prospectus and any amendment or supplement thereto during the
Effectiveness Period.

      (h) Prior to any offering of Registrable Securities pursuant to a Shelf
Registration Statement, the Company shall (i) register or qualify or cooperate
with the Notice Holders and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or "blue sky" laws of such jurisdictions within the United States as
any Notice Holder may reasonably request in writing, (ii) keep such
registrations or qualifications or exemption therefrom in effect and comply with
such laws so as to permit the continuance of offers and sales in such
jurisdictions for so long as may be necessary to enable any Notice Holder or
underwriter, if any, to complete its distribution of Registrable Securities
pursuant to such Shelf Registration Statement, and (iii) take any and all other
actions necessary or advisable to enable the disposition in such jurisdictions
of such Registrable Securities; provided, however, that in no event shall the
Company be obligated to (A) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to so
qualify but for this Section 3(h) or (B) subject itself to general or unlimited
service of process or to taxation in any such jurisdiction if they are not now
so subject.

      (i) Unless any Registrable Securities shall be in book-entry only form,
the Company shall cooperate with the Notice Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold pursuant to any Shelf Registration Statement, which certificates, if so
required by any securities market or exchange upon which any Registrable
Securities are quoted or listed, shall be penned, lithographed or engraved, or
produced by any combination of such methods, on steel engraved borders, and
which certificates shall be free of any restrictive legends and in such
permitted denominations and registered in such names as Notice Holders may
request in connection with the sale of Registrable Securities pursuant to such
Shelf Registration Statement.

      (j) Upon the occurrence of any fact or event contemplated by paragraph
3(d)(vi) above, subject to Section 2(c) hereof, the Company shall promptly, but
in any event within 10 Business Days following such occurrence, prepare, file
(and have declared effective) a post-effective amendment to any Shelf
Registration Statement or an amendment or supplement to the related Prospectus
included therein or file any other document with the Commission so that, as
thereafter delivered to purchasers of the Registrable Securities, the Prospectus
will not include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If the Company
notifies the Notice Holders of the occurrence of any fact or event contemplated
by paragraph 3(d)(vi) above, the Notice Holder shall suspend the use of the
Prospectus until the requisite changes to the Prospectus have been made.


                                       8

      (k) Not later than the Effective Time of a Shelf Registration Statement,
the Company shall provide a CUSIP number for the debt securities to be sold
pursuant to a Shelf Registration Statement.

      (l) The Company shall use its best efforts to comply with the Securities
Act and the Exchange Act and the respective rules and regulations thereunder, as
in effect at any relevant time, and make generally available to its
securityholders earnings statements (which need not be audited) satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year), or such shorter period as required by
the Securities Act and the Exchange Act and the rules and regulations
thereunder, as in effect at any relevant time, commencing on the first day of
the first fiscal quarter of the Company commencing after (i) the effective date
of a Shelf Registration Statement, (ii) the effective date of each
post-effective amendment to such Shelf Registration Statement, or (iii) the date
of each filing by the Company with the Commission of an Annual Report on Form
10-K that is incorporated by reference in such Shelf Registration Statement,
which statements shall cover said 12-month periods.

      (m) Not later than the Effective Time of the initial Shelf Registration
Statement, the Company shall use its best efforts to cause the Indenture to be
qualified under the Trust Indenture Act; in connection with such qualification,
the Company shall cooperate with the Trustee under the Indenture and the Holders
(as defined in the Indenture) to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the terms of
the Trust Indenture Act; and the Company shall execute, and shall use all
reasonable efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so qualified in a
timely manner. In the event that any such amendment or modification referred to
in this Section 3(m) involves the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.

      (n) The Company shall enter into such customary agreements and take all
such other necessary actions in connection therewith (including those reasonably
requested by the holders of a majority of the Registrable Securities being sold)
in order to expedite or facilitate disposition of such Registrable Securities;
provided, that the Company shall not be required to take any action in
connection with an underwritten offering without its consent.

      (o) The Company shall make reasonably available for inspection by one or
more representatives of the selling Holders, designated in writing by a Majority
of Holders whose Registrable Securities are included in a Shelf Registration
Statement, any underwriter participating in any disposition pursuant to any
Shelf Registration Statement, and any attorney, accountant or other agent
retained by such Notice Holders or any such underwriter all relevant financial
and other records, pertinent corporate documents and properties of the Company
and its subsidiaries, and (B) cause the Company's officers, directors and
employees to make reasonably available for inspection all information reasonably
requested by such Notice Holders or any such underwriter, attorney, accountant
or agent in connection with such Shelf Registration Statement, in each case, as
is customary for similar due diligence examinations; provided, however, that


                                       9

such persons shall, at the Company's request, first agree in writing with the
Company that any information that is reasonably and in good faith designated by
the Company in writing as confidential at the time of delivery, or inspection,
as the case may be, of such information shall be kept confidential by such
persons and shall be used solely for the purposes of exercising rights under
this Agreement, unless such disclosure is made in connection with a court
proceeding or required by law, or such records, information or documents become
available to the public generally or through a third party without an
accompanying obligation of confidentiality; and provided further that, if the
foregoing inspection and information gathering would otherwise disrupt the
Company's conduct of its business, such inspection and information gathering
shall, to the greatest extent possible, be coordinated on behalf of the Notice
Holders and the other parties entitled thereto by one counsel designated by and
on behalf of the Notice Holders and other parties.

      (p) The Company will use its best efforts to cause the Common Stock
issuable upon conversion of the Securities to be quoted or listed on the Nasdaq
National Market or other market or stock exchange on which the Common Stock
primarily trades on or prior to the Effective Time of each Shelf Registration
Statement hereunder.

      (q) The Company will cooperate and assist in any filings required to be
made with National Association of Securities Dealers, Inc.

      (r) The Company shall use its best efforts to take all other steps
necessary to effect the registration, offering and sale of the Registrable
Securities covered by each Shelf Registration Statement contemplated hereby.

      4. Registration Expenses. The Company shall bear all fees and expenses
incurred in connection with the performance by the Company of its obligations
under Sections 2 and 3 of this Agreement whether or not any of the Shelf
Registration Statements are declared effective. Such fees and expenses shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (y) of
compliance with United States federal and state securities or Blue Sky laws to
the extent such filings or compliance are required pursuant to this Agreement
(including, without limitation, reasonable fees and disbursements of the counsel
specified in the next sentence in connection with Blue Sky qualifications of the
Registrable Securities under the laws of such jurisdictions as the Notice
Holders of a majority of the Registrable Securities being sold pursuant to a
Shelf Registration Statement may designate)), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities
in a form eligible for deposit with The Depository Trust Company), (iii)
duplication expenses relating to copies of any Shelf Registration Statement or
Prospectus delivered to any Holders hereunder, (iv) fees and disbursements of
counsel for the Company in connection with the Shelf Registration Statement, and
(v) reasonable fees and disbursements of the Trustee and its counsel and of the
registrar and transfer agent for the Common Stock. In addition, the Company
shall bear or reimburse the Notice Holders for the reasonable fees and
disbursements of one firm of legal counsel for the Holders, which shall
initially be counsel to the Initial Purchaser, but which may, upon the written
consent of the Initial Purchaser (which shall not be unreasonably withheld), be
another nationally recognized law firm


                                       10

experienced in securities law matters designated by the Company. In addition,
the Company shall pay the internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees performing legal
or accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange on which similar securities of the Company are then listed
and the fees and expenses of any person, including special experts, retained by
the Company.

      5. Indemnification and Contribution.

      (a) Indemnification by the Company. The Company shall indemnify and hold
harmless each Notice Holder, the Initial Purchaser, and each person, if any, who
controls any such Notice Holder or Initial Purchaser within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any loss, claim, damage, liability or expense whatsoever as incurred
(including but not limited to reasonable attorneys' fees and any and all
expenses whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and any and
all amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as any such loss, claim, damage, liability or
expense (or action in respect thereof) arises out of, or is based upon, any
untrue statement or alleged untrue statement of a material fact contained in the
Shelf Registration Statement or any amendment thereto or any related preliminary
prospectus or the Prospectus or any amendment thereto of supplement thereof, or
arises out of, or is based upon, the omission or alleged omission to state
therein any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the Company shall not
be liable to any such indemnified party in any such case to the extent that any
such loss, claim, damage, liability or expense arises out of, or is based upon,
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such indemnified party
specifically for use therein; and provided further, however, that the Company
shall not be liable to any such indemnified party in any such case to the extent
that such loss, claim, damage, liability or expense arises from an offer or sale
by a Notice Holder of Registrable Securities during a Suspension Period, if such
indemnified party is a Notice Holder that received from the Company a notice of
the commencement of such Suspension Period prior to the making of such offer or
sale. The foregoing indemnity agreement is in addition to any liability that the
Company may otherwise have to any indemnified party. The Company shall not be
liable under this Section 5(a) for any settlement of any action effected without
its written consent, which shall not be unreasonably withheld, provided,
however, that with respect to actions pursuant to clauses (1), (2) and (3) of
Section 5(c), no such consent shall be required.

      (b) Indemnification by the Notice Holders. Each Notice Holder, severally
and not jointly, shall indemnify and hold harmless the Company, the Initial
Purchaser, and each person, if any, who controls the Company or the Initial
Purchaser within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, from and against any loss, claim, damage, liability or
expense whatsoever as incurred (including but not limited to attorneys' fees and
any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in


                                       11

settlement of any claim or litigation), joint or several, to which they or any
of them may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as any such loss, claim, damage, liability or expense (or
action in respect thereof) arises out of, or is based upon, any untrue statement
or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or any amendment thereto or any related preliminary
prospectus or the Prospectus or any amendment thereto of supplement thereof, or
arises out of, or is based upon, the omission or alleged omission to state
therein any material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission made therein was made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such Notice
Holder specifically for use therein. In no event shall the liability of any
selling Notice Holder hereunder be greater in amount than the dollar amount of
the proceeds received by such Holder upon the sale of the Registrable Securities
pursuant to the Shelf Registration Statement giving rise to such indemnification
obligation. The foregoing indemnity agreement is in addition to any liability
that any Notice Holder may otherwise have to the Company, the Initial Purchaser
and any such controlling person.

      (c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under this Section 5 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 5, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability that it may have under this Section 5. If any such claim or action
shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 5 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the indemnified party shall have the right to employ counsel to represent
jointly the indemnified party and its respective directors, employees, officers
and controlling persons who may be subject to liability arising out of any claim
in respect of which indemnity may be sought by the indemnified party against the
indemnifying party under this Section 5 if (1) employment of such counsel has
been authorized in writing by the indemnifying party, or (2) such indemnifying
party shall not have employed counsel to have charge of the defense of such
proceeding within 30 days of the receipt of notice thereof, or (3) such
indemnified party shall have reasonably concluded that the representation of
such indemnified party and those directors, employees, officers and controlling
persons by the same counsel representing the indemnifying party would be
inappropriate under applicable standards of professional conduct due to actual
or potential differing interests between them or where there may be one or more
defenses available to them that are different from, additional to or in conflict
with those available to the indemnifying party, and in any such event ((1), (2)
or (3)) the fees and expenses of such separate counsel shall be paid by the
indemnifying party as incurred. It is understood that the indemnifying party
shall not be liable for the fees and expenses of more than


                                       12

one separate firm (in addition to local counsel in each jurisdiction) for all
indemnified parties in connection with any proceeding or related proceedings. No
indemnifying party shall, without the prior written consent of the indemnified
parties, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened claim, investigation, action
or proceeding in respect of which indemnity or contribution may be or could have
been sought hereunder (whether or not the indemnified party or parties are
actual or potential parties thereto) unless (x) such settlement, compromise or
judgment (i) includes an unconditional release of such indemnified party from
all liability arising out of such claim, action, suit or proceeding and (ii)
does not include a statement as to or an admission of fault, culpability or
failure to act by or on behalf of any indemnified party, and (y) the
indemnifying party confirms in writing its indemnification obligations hereunder
with respect to such settlement, compromise or judgment.

      (d) Contribution. If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages, expenses or liabilities (or actions in respect thereof)
referred to in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
or parties on the one hand and the indemnified party on the other from the
registration of the Registrable Securities pursuant to the Shelf Registration,
or (ii) if the allocation provided by the foregoing clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof) as well
as any other relevant equitable considerations. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or such Holder or such other indemnified party, as the case may
be, on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (d). The Company and the
Holders agree that it would not be just and equitable if contribution pursuant
to this Section 5(d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to herein. Notwithstanding any other provision of this Section 5(d),
the Holders of the Registrable Securities shall not be required to contribute
any amount in excess of the amount by which the gross proceeds received by such
Holders from the sale of the Registrable Securities pursuant to the Shelf
Registration Statement exceeds the amount of damages which such Holders have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls such indemnified party


                                       13

within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company. The Holders'
respective obligations to contribute pursuant to this Section 5 are several in
proportion to the respective amount of Registrable Securities they have sold
pursuant to a Registration Statement and not joint. The remedies provided for in
this Section 5 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.

      (e) The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchaser, any Holder or any person controlling the Initial
Purchaser or Holder, or by or on behalf of the Company, its officers or
directors or any person controlling the Company, and (iii) any sale of
Registrable Securities pursuant to the Shelf Registration Statement.

      6. Holder's Obligations. Each Holder agrees, by acquisition of the
Registrable Securities, that no Holder of Registrable Securities shall be
entitled to sell any of such Registrable Securities pursuant to a Shelf
Registration Statement or to receive a Prospectus relating thereto, unless such
Holder has furnished the Company with a Notice and Questionnaire as required
pursuant to Section 3(a) hereof (including the information required to be
included in such Notice and Questionnaire) and the information set forth in the
next sentence. Each Notice Holder agrees promptly to furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Notice Holder not misleading and any other
information regarding such Notice Holder and the distribution of such
Registrable Securities as the Company may from time to time reasonably request.
Any sale of any Registrable Securities by any Notice Holder shall constitute a
representation and warranty by such Notice Holder that the information relating
to such Notice Holder and its plan of distribution is as set forth in the
Prospectus delivered by such Notice Holder in connection with such disposition,
that such Prospectus does not as of the time of such sale contain any untrue
statement of a material fact relating to or provided by such Notice Holder or
its plan of distribution and that such Prospectus does not as of the time of
such sale omit to state any material fact relating to or provided by such Notice
Holder or its plan of distribution necessary in order to make the statements in
such Prospectus, in the light of the circumstances under which they were made,
not misleading.

      7. Additional Interest.

      (a) Notwithstanding any postponement of the effectiveness pursuant to
Section 2(a) hereof, if (i) on or prior to the 90th day following the Issue
Date, a Shelf Registration Statement has not been filed with the Commission,
(ii) on or prior to the 210th day following the Issue Date, such initial Shelf
Registration Statement is not declared effective by the Commission, (iii) after
the effectiveness date of any Shelf Registration Statement, (x) such Shelf
Registration Statement ceases to be effective or usable for the offer and sale
of Registrable Securities (other than due to a Suspension Period), and the
Company fails to file (and have declared effective), within five Business Days,
a post-effective amendment to such Shelf Registration Statement or


                                       14

amendment or supplement to the Prospectus contained therein or such other
document with the Commission to make such Shelf Registration Statement effective
or such Prospectus usable, or (y) the Suspension Periods exceed 45 or 60
calendar days, as applicable, whether or not consecutive, in any 90 calendar day
period, or more than 120 calendar days, whether or not consecutive, during any
360 calendar day period during the Effectiveness Period, or (iv) the Company
shall have failed to timely comply with any of its obligations set forth in
Section 3(a)(ii) hereof (each, a "Registration Default"), the Company shall be
required to pay additional interest ("Additional Interest"), from and including
the day following such Registration Default to but excluding the day on which
such Registration Default is cured, at a rate per annum equal to an additional
one-quarter of one percent (0.25%) of the Applicable Amount to and including the
90th day following such Registration Default, and one-half of one percent
(0.50%) thereof from and after the 91st day following such Registration Default.
In the event any Registrable Securities that are Securities are converted into
Common Stock during the continuance of a Registration Default, the Company will
deliver to each Holder converting Securities during the continuance of a
Registration Default 103% of the number of shares of Common Stock the Holder
would have otherwise received upon conversion ("Additional Shares") and no
Additional Interest shall be payable on such converted Securities.

      (b) In the case of a Registration Default described in Sections
7(a)(i)-(iii) above, Additional Interest, if any, shall be payable only to
Notice Holders and, in respect of a Registration Default described in Section
7(a)(iv) above, Additional Interest, if any, shall be payable only to Notice
Holders to whom such Registration Default relates.

      (c) Any amounts to be paid as Additional Interest pursuant to paragraph
(a) of this Section 7 shall be paid in cash semiannually in arrears, with the
first semiannual payment due on the first interest payment date following the
date on which such Additional Interest begins to accrue, to the Notice Holders
in whose name the Securities or Common Stock issued upon conversion of the
Securities are registered at the close of business on June 15 or December 15,
whether or not a Business Day, immediately preceding the relevant interest
payment date.

      (d) Except as provided in Section 8(a) hereof, the Additional Interest or
Additional Shares as set forth in this Section 7 shall be the exclusive cash (or
asset, as the case may be) remedy available to the Holders of Registrable
Securities for such Registration Default. In no event shall the Company be
required to pay Additional Interest in excess of the applicable maximum amount
of one-half of one percent (0.50%) set forth above, regardless of whether one or
multiple Registration Defaults exist.

      8. Miscellaneous.

      (a) Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Initial Purchaser and the Holders from time
to time may be irreparably harmed by any such failure, and accordingly agree
that the Initial Purchaser and such Holders, in addition to any other remedy to
which they may be entitled at law or in equity and without limiting the remedies
available to the Notice Holders under Section 7 hereof, shall be entitled to
compel specific performance of the obligations of the Company under this
Registration Rights Agreement in


                                       15

accordance with the terms and conditions of this Registration Rights Agreement,
in any court of the United States or any State thereof having jurisdiction.

      (b) Amendments and Waivers. This Agreement, including this Section 8(b),
may be amended, and waivers or consents to departures from the provisions hereof
may be given, only by a written instrument duly executed by the Company and a
Majority of Holders. Each Holder of Registrable Securities outstanding at the
time of any such amendment, waiver or consent or thereafter shall be bound by
any amendment, waiver or consent effected pursuant to this Section 8(b), whether
or not any notice, writing or marking indicating such amendment, waiver or
consent appears on the Registrable Securities or is delivered to such Holder.

      (c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:

      (w)   if to a Holder of Registrable Securities, at the most current
address given by such Holder to the Company in a Notice and Questionnaire or any
amendment thereto;

      (x)   if to the Company, to:

            Concord Communications, Inc.
            600 Nickerson Road
            Marlboro, MA  01752
            Attention:  Chief Financial Officer
            Telephone: (508) 460-4646
            Facsimile:  (508) 481-9772

            with a copy to:

            Testa, Hurwitz & Thibeault, LLP
            125 High Street
            Boston, MA 02110
            Attention:  Kevin M. Barry, Esq.

      (y)   if to the Initial Purchaser, to:

            Bear, Stearns & Co. Inc.
            383 Madison Avenue
            New York, NY  10179
            Attention: Stephen Parish
            Facsimile: (212) 272-3485

or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.


                                       16

      (d) Parties in Interest. The parties to this Agreement intend that all
Holders of Registrable Securities shall be entitled to receive the benefits of
this Agreement and that any Notice Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration Statement. All
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto and any Holder from time to time of the Registrable
Securities to the aforesaid extent. In the event that any transferee of any
Holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be entitled
to receive the benefits of and, if a Notice Holder, be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement to the aforesaid extent.

      (e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.

      (f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.

      (g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.

      (h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.

      (i) Survival. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any Notice
Holder, any director, officer or partner of such Holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such Holder.

      9. Submission to Jurisdiction; Appointment of Agent for Service.

      The Company agrees that any suit, action or proceeding against the Company
arising out of or based upon this Agreement or the transactions contemplated
hereby may be instituted in any state or federal court in The City of New York,
New York, and waives any objection which it may now or hereafter have to the
laying of venue of any such proceeding, and irrevocably submits to the
non-exclusive jurisdiction of such courts in any suit, action or proceeding. The
Company expressly accepts the non-exclusive jurisdiction of any such court in
respect of any


                                       17

such suit, action or proceeding. The Company agrees that a final judgment in any
such proceeding brought in any such court shall be conclusive and binding
thereupon and may be enforced in any other court in the jurisdiction to which
the Company is or may be subject by suit upon such judgment.


                                       18

Please confirm that the foregoing correctly sets forth the agreement between the
Company and you.

                                           Very truly yours,

                                           Concord Communications, Inc.


                                           By:  /s/ Melissa H. Cruz
                                                -------------------------------
                                                Name: Melissa H. Cruz
                                                Title: Executive Vice President
                                                       of Business Services,
                                                       Chief Financial Officer
                                                       and Treasurer


Accepted as of the date hereof:
      Bear, Stearns & Co. Inc.



      By:  /s/ Stephen Parish
           -------------------------------------
           Name: Stephen Parish
           Title: Senior Managing Director


                                       19


                                                                      APPENDIX A

                          CONCORD COMMUNICATIONS, INC.

                  FORM OF NOTICE OF REGISTRATION STATEMENT AND
                SELLING SECURITYHOLDER ELECTION AND QUESTIONNAIRE
                     3.0% CONVERTIBLE SENIOR NOTES DUE 2023

NOTICE

         Concord Communications, Inc. (the "Company") has filed, or intends
shortly to file, with the Securities and Exchange Commission (the "Commission")
a registration statement on Form S-3 or such other Form as may be available (the
"Shelf Registration Statement") for the registration and resale under Rule 415
of the Securities Act of 1933, as amended (the "Securities Act"), of the
Company's Convertible Senior Notes due 2023 (CUSIP No. 206186AA6) (the "Notes"),
and common stock, par value $0.01 per share, issuable upon conversion thereof
(the "Shares" and together with the Notes, the "Transfer Restricted Securities")
in accordance with the terms of the Registration Rights Agreement, dated as of
December 8, 2003 (the "Registration Rights Agreement") between the Company and
Bear, Stearns & Co. Inc. A copy of the Registration Rights Agreement is
available from the Company. All capitalized terms not otherwise defined herein
have the meanings ascribed thereto in the Registration Rights Agreement.

         To sell or otherwise dispose of any Transfer Restricted Securities
pursuant to the Shelf Registration Statement, a beneficial owner of Transfer
Restricted Securities generally will be required to be named as a Selling
Securityholder in the related Prospectus, deliver a Prospectus to purchasers of
Transfer Restricted Securities, be subject to certain civil liability provisions
of the Securities Act and be bound by those provisions of the Registration
Rights Agreement applicable to such beneficial owner (including certain
indemnification rights and obligations, as described below). To be included in
the Shelf Registration Statement, this Election and Questionnaire must be
completed, executed and delivered to the Company at the address set forth herein
for receipt PRIOR TO OR ON THE 20TH CALENDAR DAY FROM THE RECEIPT HEREOF (the
"Election and Questionnaire Deadline"). Beneficial Owners that do not complete
and return this Election and Questionnaire prior to the Election and
Questionnaire Deadline and deliver it to the Company as provided below will not
be named as Selling Securityholders in the Shelf Registration Statement and,
therefore, will not be permitted to sell any Transfer Restricted Securities
pursuant to the Shelf Registration Statement.

         Certain legal consequences arise from being named as a Selling
Securityholder in the Shelf Registration Statement and the related Prospectus.
Accordingly, holders and beneficial owners of Transfer Restricted Securities are
advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a Selling Securityholder in the Shelf
Registration Statement and the related Prospectus.

                                    ELECTION

         The undersigned holder (the "Selling Securityholder") of Transfer
Restricted Securities hereby elects to include in the Shelf Registration
Statement the Transfer Restricted Securities beneficially owned by it and listed
below in Item III (unless otherwise specified under Item III). The undersigned,
by signing and returning this Election and Questionnaire, understands that it
will be bound with respect to such Transfer Restricted Securities by the terms
and conditions of this Election and Questionnaire and the Registration Rights
Agreement.

         Pursuant to the Registration Rights Agreement, the Selling
Securityholder has agreed to indemnify and hold harmless the Company, the
Company's directors, the Company's officers, employees, representatives and
agents and each person, if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against certain losses arising in connection with statements concerning the
Selling Securityholder made in the Shelf Registration Statement or the related
Prospectus in reliance upon the information provided in this Election and
Questionnaire.

         The Selling Securityholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:

                                  QUESTIONNAIRE

I.      A.  Full Legal Name of Selling Securityholder:
_______________________________________________________________________________

                                      A-1



        B.  Full legal name of registered holder (if not the same as (a) above)
            through which Transfer Restricted Securities listed in (3) below are
            held:

_______________________________________________________________________________

        C.  Full legal name of DTC participant (if applicable and if not the
            same as (b) above) through which Transfer Restricted Securities
            listed in Item III are held:

_______________________________________________________________________________

II.     Address for notices to Selling Securityholders:

_______________________________________________________________________________

_______________________________________________________________________________

Telephone:       ___________________________

Fax:             ___________________________

Contact Person:  ___________________________

III.    Beneficial ownership of Transfer Restricted Securities:

        A.       Type of Transfer Restricted Securities beneficially owned, and
                 principal amount of Notes or number of shares of Common Stock,
                 as the case may be, beneficially owned:

        _______________________________________________________________________

        B.       CUSIP No(s). of such Transfer Restricted Securities
                 beneficially owned:

        _______________________________________________________________________

        C.       Amount of Transfer Restricted Securities that the undersigned
                 wishes to be included in the Shelf Registration Statement:

        _______________________________________________________________________

IV.     Beneficial ownership of the Company's securities owned by the Selling
        Securityholder:

        EXCEPT AS SET FORTH BELOW IN THIS ITEM IV, THE UNDERSIGNED IS NOT THE
BENEFICIAL OR REGISTERED OWNER OF ANY SECURITIES OF THE COMPANY OTHER THAN THE
TRANSFER RESTRICTED SECURITIES LISTED ABOVE IN ITEM III ("Other Securities").

        A.       Type and amount of Other Securities beneficially owned by the
                 Selling Securityholder:

        _______________________________________________________________________

        B.       CUSIP No(s). of such Other Securities beneficially owned:

        _______________________________________________________________________

V.      Relationship with the Company:

                                      A-2


         Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with the
Company (or their predecessors or affiliates) during the past three years.

State any exception here:

_______________________________________________________________________________

VI.      Plan of Distribution:

         Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Transfer Restricted Securities listed above
in Item III pursuant to the Shelf Registration Statement only as follows (if at
all). Such Transfer Restricted Securities may be sold from time to time directly
by the undersigned or, alternatively, through underwriters, broker-dealers or
agents. If the Transfer Restricted Securities are sold through underwriters or
broker-dealers, the Selling Securityholder will be responsible for underwriting
discounts or commissions or agent's commissions. Such Transfer Restricted
Securities may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices determined at
the time of sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions):

         1.       on any national securities exchange or quotation service on
                  which the Transfer Restricted Securities may be listed or
                  quoted at the time of sale;

         2.       in the over-the-counter market;

         3.       in transactions otherwise than on such exchanges or services
                  or in the over-the-counter market; or

         4.       through the writing of options.

         In connection with sales of the Transfer Restricted Securities or
otherwise, the undersigned may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Transfer
Restricted Securities and deliver Transfer Restricted Securities to close out
such short positions, or loan or pledge Transfer Restricted Securities to
broker-dealers that in turn may sell such securities. State any exceptions here:

_______________________________________________________________________________

_______________________________________________________________________________

Note: In no event will such method(s) of distribution take the form of an
underwritten offering of the Transfer Restricted Securities without the prior
agreement of the Company.

         By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees it will comply, with the
prospectus delivery requirements and other provisions of the Securities Act and
Exchange Act and the respective rules and regulations promulgated thereunder,
particularly Regulation M thereunder (or any successor rules or regulations), in
connection with any offering of Transfer Restricted Securities pursuant to the
Shelf Registration Statement.

         If the Selling Securityholder transfers all or any portion of the
Transfer Restricted Securities listed in Item III above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Election and Questionnaire and the Registration Rights
Agreement and agrees to deliver a notice of such transfer, in substantially the
form attached as Exhibit 1 to this Election and Questionnaire, to the Trustee
and the Company.

         By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items I through VI above
and the inclusion of such information in the Shelf Registration Statement and
the related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation or amendment of the Shelf Registration Statement and the related
Prospectus.

                                      A-3


         In accordance with the Selling Securityholder's obligation under the
Registration Rights Agreement to provide such information as may be required by
law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein that may occur subsequent to the date
hereof at any time while the Shelf Registration Statement remains effective. All
notices hereunder and pursuant to the Registration Rights Agreement shall be
made in writing at the address set forth below.

         Once this Election and Questionnaire is executed by the Selling
Securityholders and received by the Company, the terms of this Election and
Questionnaire and the representations and warranties contained herein shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives and assigns of the
Company and the Selling Securityholder with respect to the Transfer Restricted
Securities beneficially owned by such Selling Securityholder and listed in Item
III above. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York without regard to the conflicts-of-laws
provisions thereof.

                                      A-4


         IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Election and Questionnaire to be executed and delivered either in
person or by its authorized agent.

Dated:

                                           Beneficial Owner

                                           By: _______________________________
                                               Name:
                                               Title:

Please return the completed and executed Election and Questionnaire for receipt
PRIOR TO OR ON THE 20TH CALENDAR DAY FROM RECEIPT HEREOF to:

Concord Communications, Inc. at:

         600 Nickerson Road
         Marlboro, Massachusetts 01752
         Attention: Chief Financial Officer

with a copy to:

         Testa, Hurwitz & Thibeault, LLP
         125 High Street
         Boston, MA  02110
         Attention:  Paul L. Manias, Esq.

                                      A-5



                                                                      APPENDIX A

                    EXHIBIT 1 TO ELECTION AND QUESTIONNAIRE

                           NOTICE OF TRANSFER PURSUANT
                            TO REGISTRATION STATEMENT

Concord Communications, Inc.
600 Nickerson Road
Marlboro, MA  01752

Re:   Concord Communications, Inc.'s
      Convertible Senior Notes due ________, 2023 (the "Notes")

Dear Sirs:

Please be advised that __________ has transferred $_________ aggregate principal
amount of the above-referenced Notes or ________ shares of the Company's common
stock issued on conversion or repurchase of Notes, pursuant to the Registration
Statement on Form S-3 (File No. 333-________) filed by the Company.

We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above named beneficial owner of the Notes
or common stock is named as a selling securityholder in the Prospectus dated
___________, or in amendments or supplements thereto, and that the aggregate
principal amount of the Notes or number of shares of common stock transferred
are [all or a portion of] the Notes or common stock listed in such Prospectus,
as amended or supplemented, opposite such owner's name.

                                                 Very truly yours,

                                                 [name]

                                                 By:____________________________

                                                         (Authorized Signature)

Dated:__________________

EX-5.1

                                                                     EXHIBIT 5.1

                                                                January 22, 2004

Concord Communications, Inc.
600 Nickerson Road
Marlboro, Massachusetts 01752

         Re:      S-3 Registration Statement

Ladies and Gentlemen:

                  We are counsel to Concord Communications, Inc., a
Massachusetts corporation (the "Company"), and have represented the Company in
connection with the preparation and filing of the Company's Registration
Statement on Form S-3 (the "Registration Statement"), relating to the
registration under the Securities Act of 1933, as amended, of $86,250,000
aggregate principal amount of 3.0% Convertible Senior Notes due 2023 (the
"Notes") and shares of the Company's Common Stock, par value $0.01 per share,
issuable upon conversion of the Notes (the "Conversion Shares") to be sold by
certain securityholders listed in the Registration Statement (the "Selling
Securityholders").

         We have reviewed the corporate proceedings taken by the Board of
Directors of the Company with respect to the authorization and issuance of the
Notes and the Conversion Shares. We have also examined and relied upon originals
or copies, certified or otherwise authenticated to our satisfaction, of all
corporate records, documents, agreements or other instruments of the Company and
have made all investigations of law and have discussed with the Company's
officers all questions of fact that we have deemed necessary or appropriate.

         Based upon and subject to the foregoing, we are of the opinion that (1)
the Notes, when sold by the Selling Securityholders in the number described in
the Registration Statement, will be legally and validly issued and will
represent binding obligations of the Company and (2) the Conversion Shares, when
sold by the Selling Securityholders in the manner described in the Registration
Statement, will be legally and validly issued, fully paid and nonassessable.

         We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to our firm in the Prospectus
contained in the Registration Statement under the caption "Legal Matters."

                                          Very truly yours,

                                          /s/ Testa, Hurwitz & Thibeault, LLP

                                          TESTA, HURWITZ & THIBEAULT, LLP

EX-12.1

                                                                    EXHIBIT 12.1

                       RATIO OF EARNINGS TO FIXED CHARGES

         Set forth below is information concerning our ratio of earnings to
fixed charges on a consolidated basis for the period indicated. This ratio shows
the extent to which our business generates enough earnings after the payment of
all expenses other than interest to make the required interest payments on the
notes.

         For the purposes of computing the ratios of earnings to fixed charges,
"earnings" consist of income before taxes and fixed charges. "Fixed charges"
consist of interest on all indebtedness and an interest factor attributable to
rentals.



                                                                                                                 Nine Months
                                                                                                                    Ended
                                                                    Fiscal Year Ended December 31,              September 30,
                                                            ------------------------------------------------------------------
                                                             1998     1999       2000      2001      2002      2002      2003
                                                            ------------------------------------------------------------------
                                                                            (in thousands, except for ratios)
                                                                                                    
FIXED CHARGES:
 Interest expensed .....................................       28       325         34        --        17        --        20
 Estimate of interest within rental expenses ...........      254       901        921     1,451     1,512     1,097     1,318
                                                            ------------------------------------------------------------------
    Total Fixed Charges ................................      282     1,226        955     1,451     1,529     1,097     1,338
                                                            ------------------------------------------------------------------

EARNINGS
 Pre-tax gain (loss) from continuing operations ........    2,769   (10,107)     1,501    10,481     5,114     1,823     2,870
 Fixed charges .........................................      282     1,226        955     1,451     1,529     1,097     1,338
                                                            ------------------------------------------------------------------
    Total earnings (loss) for computation of ratio .....    3,051    (9,481)     2,456    11,932     6,643     2,920     4,208
                                                            ------------------------------------------------------------------
 RATIO OF EARNINGS TO FIXED CHARGES ....................     10.8        -- (A)    2.6       8.2       4.3       2.8       3.1


(A) The pre-tax loss from continuing operations for the year ended December 31,
1999 is not sufficient to cover fixed charges by a total of approximately $10.7
million. As a result, the ratio of earnings to fixed charges has not been
computed for this period.

EX-23.1

                                                                    EXHIBIT 23.1

                       CONSENT OF INDEPENDENT ACCOUNTANTS

         We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 of our report dated January 15, 2003 relating
to the financial statements, which appears in Concord Communications, Inc.'s
Annual Report on Form 10-K as of and for the year ended December 31, 2002. We
also consent to the reference to us under the headings "Experts" in such
Registration Statement.

/s/ PricewaterhouseCoopers LLP
- ------------------------------
PRICEWATERHOUSECOOPERS LLP

Boston, Massachusetts
January 22, 2004

EX-25.1

                                                                    EXHIBIT 25.1
                                                                REGISTRATION NO.

================================================================================
                       SECURITIES AND EXCHANGE COMMISSION
                             WASHINGTON, D.C. 20549

                                    FORM T-1

                         STATEMENT OF ELIGIBILITY UNDER
                      THE TRUST INDENTURE ACT OF 1939 OF A
                    CORPORATION DESIGNATED TO ACT AS TRUSTEE
               Check if an Application to Determine Eligibility of
                     a Trustee Pursuant to Section 305(b)(2)

                            WILMINGTON TRUST COMPANY
               (Exact name of Trustee as specified in its charter)

           DELAWARE                                      51-0055023
(State or other jurisdiction or             (I.R.S. Employer Identification No.)
 incorporation or organization)

                               RODNEY SQUARE NORTH
                            1100 NORTH MARKET STREET
                           WILMINGTON, DELAWARE 19890
                    (Address of principal executive offices)

                               CYNTHIA L. CORLISS
                        VICE PRESIDENT AND TRUST COUNSEL
                            WILMINGTON TRUST COMPANY
                               RODNEY SQUARE NORTH
                           WILMINGTON, DELAWARE 19890
                                 (302) 651-8516
    (Name, address, including zip code, and telephone number, including area
                           code, of agent of service)

                          CONCORD COMMUNICATIONS, INC.
             (Exact name of registrants as specified in its charter)

          MASSACHUSETTS                                   04-2710876
(State or other jurisdiction or             (I.R.S. Employer Identification No.)
 incorporation or organization)

                               600 NICKERSON ROAD
                          MARLBORO, MASSACHUSETTS 01752
                      (Address principal executive offices)

                                 JOHN A. BLAESER
                      PRESIDENT AND CHIEF EXECUTIVE OFFICER

                          CONCORD COMMUNICATIONS, INC.
                               600 NICKERSON ROAD
                          MARLBORO, MASSACHUSETTS 01752
                                 (508) 460-4646
            (Name, address, including zip code, and telephone number,
                    including area code, of agent of service)

     COPIES OF ALL COMMUNICATIONS, INCLUDING ALL COMMUNICATIONS SENT TO THE
                      AGENT FOR SERVICE, SHOULD BE SENT TO:
                              KEVIN M. BARRY, ESQ.
                         TESTA, HURWITZ & THIBEAULT, LLP
                                 125 HIGH STREET
                           BOSTON, MASSACHUSETTS 02110
                                 (617) 248-7000

                     3.0% CONVERTIBLE SENIOR NOTES DUE 2023
                       (Title of the Indenture Securities)
================================================================================



ITEM 1. GENERAL INFORMATION.

                  Furnish the following information as to the trustee:

         (a)      Name and address of each examining or supervising authority to
                  which it is subject.

                  Federal Deposit Insurance Co.         State Bank Commissioner
                  Five Penn Center                           Dover, Delaware
                  Suite #2901
                  Philadelphia, PA

         (b)      Whether it is authorized to exercise corporate trust powers.

                  The trustee is authorized to exercise corporate trust powers.

ITEM 2. AFFILIATIONS WITH THE OBLIGOR.

                  If the obligor is an affiliate of the trustee, describe each
         affiliation:

                  Based upon an examination of the books and records of the
         trustee and upon information furnished by the obligor, the obligor is
         not an affiliate of the trustee.

ITEM 16. LIST OF EXHIBITS.

                  List below all exhibits filed as part of this Statement of
         Eligibility and Qualification.

         A.       Copy of the Charter of Wilmington Trust Company, which
                  includes the certificate of authority of Wilmington Trust
                  Company to commence business and the authorization of
                  Wilmington Trust Company to exercise corporate trust powers.

         B.       Copy of By-Laws of Wilmington Trust Company.

         C.       Consent of Wilmington Trust Company required by Section 321(b)
                  of Trust Indenture Act.

         D.       Copy of most recent Report of Condition of Wilmington Trust
                  Company.

         Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 30th day
of December, 2003.

                                                   WILMINGTON TRUST COMPANY
[SEAL]

Attest: /s/ Kristin F. Long                        By: /s/ Bruce L. Bisson
        --------------------------------               -------------------
        Assistant Secretary                        Name: Bruce L. Bisson
                      Title: Vice President



                                    EXHIBIT A

                                 AMENDED CHARTER

                            WILMINGTON TRUST COMPANY

                              WILMINGTON, DELAWARE

                           AS EXISTING ON MAY 9, 1987



                                                                    EXHIBIT 25.1
                                                                REGISTRATION NO.

                                 AMENDED CHARTER
                                       OR
                              ACT OF INCORPORATION
                                       OF
                            WILMINGTON TRUST COMPANY

         WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:

         FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.

         SECOND: - The location of its principal office in the State of Delaware
         is at Rodney Square North, in the City of Wilmington, County of New
         Castle; the name of its resident agent is WILMINGTON TRUST COMPANY
         whose address is Rodney Square North, in said City. In addition to such
         principal office, the said corporation maintains and operates branch
         offices in the City of Newark, New Castle County, Delaware, the Town of
         Newport, New Castle County, Delaware, at Claymont, New Castle County,
         Delaware, at Greenville, New Castle County Delaware, and at Milford
         Cross Roads, New Castle County, Delaware, and shall be empowered to
         open, maintain and operate branch offices at Ninth and Shipley Streets,
         418 Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in
         the City of Wilmington, New Castle County, Delaware, and such other
         branch offices or places of business as may be authorized from time to
         time by the agency or agencies of the government of the State of
         Delaware empowered to confer such authority.

         THIRD: - (a) The nature of the business and the objects and purposes
         proposed to be transacted, promoted or carried on by this Corporation
         are to do any or all of the things herein mentioned as fully and to the
         same extent as natural persons might or could do and in any part of the
         world, viz.:

                  (1) To sue and be sued, complain and defend in any Court of
                  law or equity and to make and use a common seal, and alter the
                  seal at pleasure, to hold, purchase, convey, mortgage or
                  otherwise deal in real and personal estate and property, and
                  to appoint such officers and agents as the business of the
                  Corporation shall require, to make by-laws not inconsistent
                  with the Constitution or laws of the United States or of this
                  State, to discount bills, notes or other evidences of debt, to
                  receive deposits of money, or securities for money, to buy
                  gold and silver bullion and foreign coins, to buy and sell
                  bills of exchange, and generally to use, exercise and enjoy
                  all the powers, rights, privileges and franchises incident to
                  a corporation which are proper or necessary for the
                  transaction of the business of the Corporation hereby created.

                  (2) To insure titles to real and personal property, or any
                  estate or interests therein, and to guarantee the holder of
                  such property, real or personal, against any claim or claims,
                  adverse to his interest therein, and to prepare and give
                  certificates of title for any lands or premises in the State
                  of Delaware, or elsewhere.

                  (3) To act as factor, agent, broker or attorney in the
                  receipt, collection, custody, investment and management of
                  funds, and the purchase, sale, management and disposal of
                  property of all descriptions, and to prepare and execute all
                  papers which may be necessary or proper in such business.



                  (4) To prepare and draw agreements, contracts, deeds, leases,
                  conveyances, mortgages, bonds and legal papers of every
                  description, and to carry on the business of conveyancing in
                  all its branches.

                  (5) To receive upon deposit for safekeeping money, jewelry,
                  plate, deeds, bonds and any and all other personal property of
                  every sort and kind, from executors, administrators,
                  guardians, public officers, courts, receivers, assignees,
                  trustees, and from all fiduciaries, and from all other persons
                  and individuals, and from all corporations whether state,
                  municipal, corporate or private, and to rent boxes, safes,
                  vaults and other receptacles for such property.

                  (6) To act as agent or otherwise for the purpose of
                  registering, issuing, certificating, countersigning,
                  transferring or underwriting the stock, bonds or other
                  obligations of any corporation, association, state or
                  municipality, and may receive and manage any sinking fund
                  therefor on such terms as may be agreed upon between the two
                  parties, and in like manner may act as Treasurer of any
                  corporation or municipality.

                  (7) To act as Trustee under any deed of trust, mortgage, bond
                  or other instrument issued by any state, municipality, body
                  politic, corporation, association or person, either alone or
                  in conjunction with any other person or persons, corporation
                  or corporations.

                  (8) To guarantee the validity, performance or effect of any
                  contract or agreement, and the fidelity of persons holding
                  places of responsibility or trust; to become surety for any
                  person, or persons, for the faithful performance of any trust,
                  office, duty, contract or agreement, either by itself or in
                  conjunction with any other person, or persons, corporation, or
                  corporations, or in like manner become surety upon any bond,
                  recognizance, obligation, judgment, suit, order, or decree to
                  be entered in any court of record within the State of Delaware
                  or elsewhere, or which may now or hereafter be required by any
                  law, judge, officer or court in the State of Delaware or
                  elsewhere.

                  (9) To act by any and every method of appointment as trustee,
                  trustee in bankruptcy, receiver, assignee, assignee in
                  bankruptcy, executor, administrator, guardian, bailee, or in
                  any other trust capacity in the receiving, holding, managing,
                  and disposing of any and all estates and property, real,
                  personal or mixed, and to be appointed as such trustee,
                  trustee in bankruptcy, receiver, assignee, assignee in
                  bankruptcy, executor, administrator, guardian or bailee by any
                  persons, corporations, court, officer, or authority, in the
                  State of Delaware or elsewhere; and whenever this Corporation
                  is so appointed by any person, corporation, court, officer or
                  authority such trustee, trustee in bankruptcy, receiver,
                  assignee, assignee in bankruptcy, executor, administrator,
                  guardian, bailee, or in any other trust capacity, it shall not
                  be required to give bond with surety, but its capital stock
                  shall be taken and held as security for the performance of the
                  duties devolving upon it by such appointment.

                  (10) And for its care, management and trouble, and the
                  exercise of any of its powers hereby given, or for the
                  performance of any of the duties which it may undertake or be
                  called upon to perform, or for the assumption of any
                  responsibility the said Corporation may be entitled to receive
                  a proper compensation.

                  (11) To purchase, receive, hold and own bonds, mortgages,
                  debentures, shares of capital stock, and other securities,
                  obligations, contracts and evidences of indebtedness, of any
                  private, public or municipal corporation within and without
                  the State of Delaware, or of the Government of the United
                  States, or of any state, territory, colony, or possession
                  thereof, or of any foreign government or country; to receive,
                  collect, receipt for, and dispose of interest, dividends and
                  income upon and from any of the bonds, mortgages, debentures,
                  notes, shares of capital stock, securities, obligations,
                  contracts, evidences of indebtedness and other property held
                  and owned by it, and to exercise in respect of all such bonds,
                  mortgages, debentures, notes, shares of capital

                                       2


                  stock, securities, obligations, contracts, evidences of
                  indebtedness and other property, any and all the rights,
                  powers and privileges of individual owners thereof, including
                  the right to vote thereon; to invest and deal in and with any
                  of the moneys of the Corporation upon such securities and in
                  such manner as it may think fit and proper, and from time to
                  time to vary or realize such investments; to issue bonds and
                  secure the same by pledges or deeds of trust or mortgages of
                  or upon the whole or any part of the property held or owned by
                  the Corporation, and to sell and pledge such bonds, as and
                  when the Board of Directors shall determine, and in the
                  promotion of its said corporate business of investment and to
                  the extent authorized by law, to lease, purchase, hold, sell,
                  assign, transfer, pledge, mortgage and convey real and
                  personal property of any name and nature and any estate or
                  interest therein.

         (b) In furtherance of, and not in limitation, of the powers conferred
         by the laws of the State of Delaware, it is hereby expressly provided
         that the said Corporation shall also have the following powers:

                  (1) To do any or all of the things herein set forth, to the
                  same extent as natural persons might or could do, and in any
                  part of the world.

                  (2) To acquire the good will, rights, property and franchises
                  and to undertake the whole or any part of the assets and
                  liabilities of any person, firm, association or corporation,
                  and to pay for the same in cash, stock of this Corporation,
                  bonds or otherwise; to hold or in any manner to dispose of the
                  whole or any part of the property so purchased; to conduct in
                  any lawful manner the whole or any part of any business so
                  acquired, and to exercise all the powers necessary or
                  convenient in and about the conduct and management of such
                  business.

                  (3) To take, hold, own, deal in, mortgage or otherwise lien,
                  and to lease, sell, exchange, transfer, or in any manner
                  whatever dispose of property, real, personal or mixed,
                  wherever situated.

                  (4) To enter into, make, perform and carry out contracts of
                  every kind with any person, firm, association or corporation,
                  and, without limit as to amount, to draw, make, accept,
                  endorse, discount, execute and issue promissory notes, drafts,
                  bills of exchange, warrants, bonds, debentures, and other
                  negotiable or transferable instruments.

                  (5) To have one or more offices, to carry on all or any of its
                  operations and businesses, without restriction to the same
                  extent as natural persons might or could do, to purchase or
                  otherwise acquire, to hold, own, to mortgage, sell, convey or
                  otherwise dispose of, real and personal property, of every
                  class and description, in any State, District, Territory or
                  Colony of the United States, and in any foreign country or
                  place.

                  (6) It is the intention that the objects, purposes and powers
                  specified and clauses contained in this paragraph shall
                  (except where otherwise expressed in said paragraph) be nowise
                  limited or restricted by reference to or inference from the
                  terms of any other clause of this or any other paragraph in
                  this charter, but that the objects, purposes and powers
                  specified in each of the clauses of this paragraph shall be
                  regarded as independent objects, purposes and powers.

         FOURTH: - (a) The total number of shares of all classes of stock which
         the Corporation shall have authority to issue is forty-one million
         (41,000,000) shares, consisting of:

                  (1) One million (1,000,000) shares of Preferred stock, par
                  value $10.00 per share (hereinafter referred to as "Preferred
                  Stock"); and

                  (2) Forty million (40,000,000) shares of Common Stock, par
                  value $1.00 per share (hereinafter referred to as "Common
                  Stock").

                                       3


         (b) Shares of Preferred Stock may be issued from time to time in one or
         more series as may from time to time be determined by the Board of
         Directors each of said series to be distinctly designated. All shares
         of any one series of Preferred Stock shall be alike in every
         particular, except that there may be different dates from which
         dividends, if any, thereon shall be cumulative, if made cumulative. The
         voting powers and the preferences and relative, participating, optional
         and other special rights of each such series, and the qualifications,
         limitations or restrictions thereof, if any, may differ from those of
         any and all other series at any time outstanding; and, subject to the
         provisions of subparagraph 1 of Paragraph (c) of this Article FOURTH,
         the Board of Directors of the Corporation is hereby expressly granted
         authority to fix by resolution or resolutions adopted prior to the
         issuance of any shares of a particular series of Preferred Stock, the
         voting powers and the designations, preferences and relative, optional
         and other special rights, and the qualifications, limitations and
         restrictions of such series, including, but without limiting the
         generality of the foregoing, the following:

                  (1) The distinctive designation of, and the number of shares
                  of Preferred Stock which shall constitute such series, which
                  number may be increased (except where otherwise provided by
                  the Board of Directors) or decreased (but not below the number
                  of shares thereof then outstanding) from time to time by like
                  action of the Board of Directors;

                  (2) The rate and times at which, and the terms and conditions
                  on which, dividends, if any, on Preferred Stock of such series
                  shall be paid, the extent of the preference or relation, if
                  any, of such dividends to the dividends payable on any other
                  class or classes, or series of the same or other class of
                  stock and whether such dividends shall be cumulative or
                  non-cumulative;

                  (3) The right, if any, of the holders of Preferred Stock of
                  such series to convert the same into or exchange the same for,
                  shares of any other class or classes or of any series of the
                  same or any other class or classes of stock of the Corporation
                  and the terms and conditions of such conversion or exchange;

                  (4) Whether or not Preferred Stock of such series shall be
                  subject to redemption, and the redemption price or prices and
                  the time or times at which, and the terms and conditions on
                  which, Preferred Stock of such series may be redeemed.

                  (5) The rights, if any, of the holders of Preferred Stock of
                  such series upon the voluntary or involuntary liquidation,
                  merger, consolidation, distribution or sale of assets,
                  dissolution or winding-up, of the Corporation.

                  (6) The terms of the sinking fund or redemption or purchase
                  account, if any, to be provided for the Preferred Stock of
                  such series; and

                  (7) The voting powers, if any, of the holders of such series
                  of Preferred Stock which may, without limiting the generality
                  of the foregoing include the right, voting as a series or by
                  itself or together with other series of Preferred Stock or all
                  series of Preferred Stock as a class, to elect one or more
                  directors of the Corporation if there shall have been a
                  default in the payment of dividends on any one or more series
                  of Preferred Stock or under such circumstances and on such
                  conditions as the Board of Directors may determine.

         (c) (1) After the requirements with respect to preferential dividends
         on the Preferred Stock (fixed in accordance with the provisions of
         section (b) of this Article FOURTH), if any, shall have been met and
         after the Corporation shall have complied with all the requirements, if
         any, with respect to the setting aside of sums as sinking funds or
         redemption or purchase accounts (fixed in accordance with the
         provisions of section (b) of this Article FOURTH), and subject further
         to any conditions which may be fixed in accordance with the provisions
         of section (b) of this Article FOURTH, then and not otherwise the

                                       4


         holders of Common Stock shall be entitled to receive such dividends as
         may be declared from time to time by the Board of Directors.

                  (2) After distribution in full of the preferential amount, if
                  any, (fixed in accordance with the provisions of section (b)
                  of this Article FOURTH), to be distributed to the holders of
                  Preferred Stock in the event of voluntary or involuntary
                  liquidation, distribution or sale of assets, dissolution or
                  winding-up, of the Corporation, the holders of the Common
                  Stock shall be entitled to receive all of the remaining assets
                  of the Corporation, tangible and intangible, of whatever kind
                  available for distribution to stockholders ratably in
                  proportion to the number of shares of Common Stock held by
                  them respectively.

                  (3) Except as may otherwise be required by law or by the
                  provisions of such resolution or resolutions as may be adopted
                  by the Board of Directors pursuant to section (b) of this
                  Article FOURTH, each holder of Common Stock shall have one
                  vote in respect of each share of Common Stock held on all
                  matters voted upon by the stockholders.

         (d) No holder of any of the shares of any class or series of stock or
         of options, warrants or other rights to purchase shares of any class or
         series of stock or of other securities of the Corporation shall have
         any preemptive right to purchase or subscribe for any unissued stock of
         any class or series or any additional shares of any class or series to
         be issued by reason of any increase of the authorized capital stock of
         the Corporation of any class or series, or bonds, certificates of
         indebtedness, debentures or other securities convertible into or
         exchangeable for stock of the Corporation of any class or series, or
         carrying any right to purchase stock of any class or series, but any
         such unissued stock, additional authorized issue of shares of any class
         or series of stock or securities convertible into or exchangeable for
         stock, or carrying any right to purchase stock, may be issued and
         disposed of pursuant to resolution of the Board of Directors to such
         persons, firms, corporations or associations, whether such holders or
         others, and upon such terms as may be deemed advisable by the Board of
         Directors in the exercise of its sole discretion.

         (e) The relative powers, preferences and rights of each series of
         Preferred Stock in relation to the relative powers, preferences and
         rights of each other series of Preferred Stock shall, in each case, be
         as fixed from time to time by the Board of Directors in the resolution
         or resolutions adopted pursuant to authority granted in section (b) of
         this Article FOURTH and the consent, by class or series vote or
         otherwise, of the holders of such of the series of Preferred Stock as
         are from time to time outstanding shall not be required for the
         issuance by the Board of Directors of any other series of Preferred
         Stock whether or not the powers, preferences and rights of such other
         series shall be fixed by the Board of Directors as senior to, or on a
         parity with, the powers, preferences and rights of such outstanding
         series, or any of them; provided, however, that the Board of Directors
         may provide in the resolution or resolutions as to any series of
         Preferred Stock adopted pursuant to section (b) of this Article FOURTH
         that the consent of the holders of a majority (or such greater
         proportion as shall be therein fixed) of the outstanding shares of such
         series voting thereon shall be required for the issuance of any or all
         other series of Preferred Stock.

         (f) Subject to the provisions of section (e), shares of any series of
         Preferred Stock may be issued from time to time as the Board of
         Directors of the Corporation shall determine and on such terms and for
         such consideration as shall be fixed by the Board of Directors.

         (g) Shares of Common Stock may be issued from time to time as the Board
         of Directors of the Corporation shall determine and on such terms and
         for such consideration as shall be fixed by the Board of Directors.

         (h) The authorized amount of shares of Common Stock and of Preferred
         Stock may, without a class or series vote, be increased or decreased
         from time to time by the affirmative vote of the holders of a majority
         of the stock of the Corporation entitled to vote thereon.

                                       5


         FIFTH: - (a) The business and affairs of the Corporation shall be
         conducted and managed by a Board of Directors. The number of directors
         constituting the entire Board shall be not less than five nor more than
         twenty-five as fixed from time to time by vote of a majority of the
         whole Board, provided, however, that the number of directors shall not
         be reduced so as to shorten the term of any director at the time in
         office, and provided further, that the number of directors constituting
         the whole Board shall be twenty-four until otherwise fixed by a
         majority of the whole Board.

         (b) The Board of Directors shall be divided into three classes, as
         nearly equal in number as the then total number of directors
         constituting the whole Board permits, with the term of office of one
         class expiring each year. At the annual meeting of stockholders in
         1982, directors of the first class shall be elected to hold office for
         a term expiring at the next succeeding annual meeting, directors of the
         second class shall be elected to hold office for a term expiring at the
         second succeeding annual meeting and directors of the third class shall
         be elected to hold office for a term expiring at the third succeeding
         annual meeting. Any vacancies in the Board of Directors for any reason,
         and any newly created directorships resulting from any increase in the
         directors, may be filled by the Board of Directors, acting by a
         majority of the directors then in office, although less than a quorum,
         and any directors so chosen shall hold office until the next annual
         election of directors. At such election, the stockholders shall elect a
         successor to such director to hold office until the next election of
         the class for which such director shall have been chosen and until his
         successor shall be elected and qualified. No decrease in the number of
         directors shall shorten the term of any incumbent director.

         (c) Notwithstanding any other provisions of this Charter or Act of
         Incorporation or the By-Laws of the Corporation (and notwithstanding
         the fact that some lesser percentage may be specified by law, this
         Charter or Act of Incorporation or the By-Laws of the Corporation), any
         director or the entire Board of Directors of the Corporation may be
         removed at any time without cause, but only by the affirmative vote of
         the holders of two-thirds or more of the outstanding shares of capital
         stock of the Corporation entitled to vote generally in the election of
         directors (considered for this purpose as one class) cast at a meeting
         of the stockholders called for that purpose.

         (d) Nominations for the election of directors may be made by the Board
         of Directors or by any stockholder entitled to vote for the election of
         directors. Such nominations shall be made by notice in writing,
         delivered or mailed by first class United States mail, postage prepaid,
         to the Secretary of the Corporation not less than 14 days nor more than
         50 days prior to any meeting of the stockholders called for the
         election of directors; provided, however, that if less than 21 days'
         notice of the meeting is given to stockholders, such written notice
         shall be delivered or mailed, as prescribed, to the Secretary of the
         Corporation not later than the close of the seventh day following the
         day on which notice of the meeting was mailed to stockholders. Notice
         of nominations which are proposed by the Board of Directors shall be
         given by the Chairman on behalf of the Board.

         (e) Each notice under subsection (d) shall set forth (i) the name, age,
         business address and, if known, residence address of each nominee
         proposed in such notice, (ii) the principal occupation or employment of
         such nominee and (iii) the number of shares of stock of the Corporation
         which are beneficially owned by each such nominee.

         (f) The Chairman of the meeting may, if the facts warrant, determine
         and declare to the meeting that a nomination was not made in accordance
         with the foregoing procedure, and if he should so determine, he shall
         so declare to the meeting and the defective nomination shall be
         disregarded.

         (g) No action required to be taken or which may be taken at any annual
         or special meeting of stockholders of the Corporation may be taken
         without a meeting, and the power of stockholders to consent in writing,
         without a meeting, to the taking of any action is specifically denied.

                                       6


         SIXTH: - The Directors shall choose such officers, agents and servants
         as may be provided in the By-Laws as they may from time to time find
         necessary or proper.

         SEVENTH: - The Corporation hereby created is hereby given the same
         powers, rights and privileges as may be conferred upon corporations
         organized under the Act entitled "An Act Providing a General
         Corporation Law", approved March 10, 1899, as from time to time
         amended.

         EIGHTH: - This Act shall be deemed and taken to be a private Act.

         NINTH: - This Corporation is to have perpetual existence.

         TENTH: - The Board of Directors, by resolution passed by a majority of
         the whole Board, may designate any of their number to constitute an
         Executive Committee, which Committee, to the extent provided in said
         resolution, or in the By-Laws of the Company, shall have and may
         exercise all of the powers of the Board of Directors in the management
         of the business and affairs of the Corporation, and shall have power to
         authorize the seal of the Corporation to be affixed to all papers which
         may require it.

         ELEVENTH: - The private property of the stockholders shall not be
         liable for the payment of corporate debts to any extent whatever.

         TWELFTH: - The Corporation may transact business in any part of the
         world.

         THIRTEENTH: - The Board of Directors of the Corporation is expressly
         authorized to make, alter or repeal the By-Laws of the Corporation by a
         vote of the majority of the entire Board. The stockholders may make,
         alter or repeal any By-Law whether or not adopted by them, provided
         however, that any such additional By-Laws, alterations or repeal may be
         adopted only by the affirmative vote of the holders of two-thirds or
         more of the outstanding shares of capital stock of the Corporation
         entitled to vote generally in the election of directors (considered for
         this purpose as one class).

         FOURTEENTH: - Meetings of the Directors may be held outside of the
         State of Delaware at such places as may be from time to time designated
         by the Board, and the Directors may keep the books of the Company
         outside of the State of Delaware at such places as may be from time to
         time designated by them.

         FIFTEENTH: - (a) (1) In addition to any affirmative vote required by
         law, and except as otherwise expressly provided in sections (b) and (c)
         of this Article FIFTEENTH:

                  (A) any merger or consolidation of the Corporation or any
                  Subsidiary (as hereinafter defined) with or into (i) any
                  Interested Stockholder (as hereinafter defined) or (ii) any
                  other corporation (whether or not itself an Interested
                  Stockholder), which, after such merger or consolidation, would
                  be an Affiliate (as hereinafter defined) of an Interested
                  Stockholder, or

                  (B) any sale, lease, exchange, mortgage, pledge, transfer or
                  other disposition (in one transaction or a series of related
                  transactions) to or with any Interested Stockholder or any
                  Affiliate of any Interested Stockholder of any assets of the
                  Corporation or any Subsidiary having an aggregate fair market
                  value of $1,000,000 or more, or

                  (C) the issuance or transfer by the Corporation or any
                  Subsidiary (in one transaction or a series of related
                  transactions) of any securities of the Corporation or any
                  Subsidiary to any Interested Stockholder or any Affiliate of
                  any Interested Stockholder in exchange for cash, securities or
                  other property (or a combination thereof) having an aggregate
                  fair market value of $1,000,000 or more, or

                                       7


                  (D) the adoption of any plan or proposal for the liquidation
                  or dissolution of the Corporation, or

                  (E) any reclassification of securities (including any reverse
                  stock split), or recapitalization of the Corporation, or any
                  merger or consolidation of the Corporation with any of its
                  Subsidiaries or any similar transaction (whether or not with
                  or into or otherwise involving an Interested Stockholder)
                  which has the effect, directly or indirectly, of increasing
                  the proportionate share of the outstanding shares of any class
                  of equity or convertible securities of the Corporation or any
                  Subsidiary which is directly or indirectly owned by any
                  Interested Stockholder, or any Affiliate of any Interested
                  Stockholder,

shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.

                  (2) The term "business combination" as used in this Article
                  FIFTEENTH shall mean any transaction which is referred to in
                  any one or more of clauses (A) through (E) of paragraph 1 of
                  the section (a).

                  (b) The provisions of section (a) of this Article FIFTEENTH
                  shall not be applicable to any particular business combination
                  and such business combination shall require only such
                  affirmative vote as is required by law and any other
                  provisions of the Charter or Act of Incorporation or By-Laws
                  if such business combination has been approved by a majority
                  of the whole Board.

                  (c) For the purposes of this Article FIFTEENTH:

         (1) A "person" shall mean any individual, firm, corporation or other
         entity.

         (2) "Interested Stockholder" shall mean, in respect of any business
         combination, any person (other than the Corporation or any Subsidiary)
         who or which as of the record date for the determination of
         stockholders entitled to notice of and to vote on such business
         combination, or immediately prior to the consummation of any such
         transaction:

                  (A) is the beneficial owner, directly or indirectly, of more
                  than 10% of the Voting Shares, or

                  (B) is an Affiliate of the Corporation and at any time within
                  two years prior thereto was the beneficial owner, directly or
                  indirectly, of not less than 10% of the then outstanding
                  voting Shares, or

                  (C) is an assignee of or has otherwise succeeded in any share
                  of capital stock of the Corporation which were at any time
                  within two years prior thereto beneficially owned by any
                  Interested Stockholder, and such assignment or succession
                  shall have occurred in the course of a transaction or series
                  of transactions not involving a public offering within the
                  meaning of the Securities Act of 1933.

         (3) A person shall be the "beneficial owner" of any Voting Shares:

                  (A) which such person or any of its Affiliates and Associates
                  (as hereafter defined) beneficially own, directly or
                  indirectly, or

                                       8


                  (B) which such person or any of its Affiliates or Associates
                  has (i) the right to acquire (whether such right is
                  exercisable immediately or only after the passage of time),
                  pursuant to any agreement, arrangement or understanding or
                  upon the exercise of conversion rights, exchange rights,
                  warrants or options, or otherwise, or (ii) the right to vote
                  pursuant to any agreement, arrangement or understanding, or

                  (C) which are beneficially owned, directly or indirectly, by
                  any other person with which such first mentioned person or any
                  of its Affiliates or Associates has any agreement, arrangement
                  or understanding for the purpose of acquiring, holding, voting
                  or disposing of any shares of capital stock of the
                  Corporation.

         (4) The outstanding Voting Shares shall include shares deemed owned
         through application of paragraph (3) above but shall not include any
         other Voting Shares which may be issuable pursuant to any agreement, or
         upon exercise of conversion rights, warrants or options or otherwise.

         (5) "Affiliate" and "Associate" shall have the respective meanings
         given those terms in Rule 12b-2 of the General Rules and Regulations
         under the Securities Exchange Act of 1934, as in effect on December 31,
         1981.

         (6) "Subsidiary" shall mean any corporation of which a majority of any
         class of equity security (as defined in Rule 3a11-1 of the General
         Rules and Regulations under the Securities Exchange Act of 1934, as in
         effect on December 31, 1981) is owned, directly or indirectly, by the
         Corporation; provided, however, that for the purposes of the definition
         of Investment Stockholder set forth in paragraph (2) of this section
         (c), the term "Subsidiary" shall mean only a corporation of which a
         majority of each class of equity security is owned, directly or
         indirectly, by the Corporation.

                  (d) majority of the directors shall have the power and duty to
                  determine for the purposes of this Article FIFTEENTH on the
                  basis of information known to them, (1) the number of Voting
                  Shares beneficially owned by any person (2) whether a person
                  is an Affiliate or Associate of another, (3) whether a person
                  has an agreement, arrangement or understanding with another as
                  to the matters referred to in paragraph (3) of section (c), or
                  (4) whether the assets subject to any business combination or
                  the consideration received for the issuance or transfer of
                  securities by the Corporation, or any Subsidiary has an
                  aggregate fair market value of $1,000,000 or more.

                  (e) Nothing contained in this Article FIFTEENTH shall be
                  construed to relieve any Interested Stockholder from any
                  fiduciary obligation imposed by law.

         SIXTEENTH: Notwithstanding any other provision of this Charter or Act
         of Incorporation or the By-Laws of the Corporation (and in addition to
         any other vote that may be required by law, this Charter or Act of
         Incorporation by the By-Laws), the affirmative vote of the holders of
         at least two-thirds of the outstanding shares of the capital stock of
         the Corporation entitled to vote generally in the election of directors
         (considered for this purpose as one class) shall be required to amend,
         alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH
         or SIXTEENTH of this Charter or Act of Incorporation.

         SEVENTEENTH: (a) a Director of this Corporation shall not be liable to
         the Corporation or its stockholders for monetary damages for breach of
         fiduciary duty as a Director, except to the extent such exemption from
         liability or limitation thereof is not permitted under the Delaware
         General Corporation Laws as the same exists or may hereafter be
         amended.

                  (b) Any repeal or modification of the foregoing paragraph
                  shall not adversely affect any right or protection of a
                  Director of the Corporation existing hereunder with respect to
                  any act or omission occurring prior to the time of such repeal
                  or modification."

                                       9


                                    EXHIBIT B

                                     BY-LAWS

                            WILMINGTON TRUST COMPANY

                              WILMINGTON, DELAWARE

                         AS EXISTING ON JANUARY 16, 2003



                                                                    EXHIBIT 25.1
                                                                REGISTRATION NO.

                       BY-LAWS OF WILMINGTON TRUST COMPANY

                                    ARTICLE I
                             STOCKHOLDERS' MEETINGS

         Section 1. Annual Meeting. The annual meeting of stockholders shall be
held on the third Thursday in April each year at the principal office at the
Company or at such other date, time or place as may be designated by resolution
by the Board of Directors.

         Section 2. Special Meetings. Special meetings of stockholders may be
called at any time by the Board of Directors, the Chairman of the Board, the
Chief Executive Officer or the President.

         Section 3. Notice. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10) days before said meeting,
at his last known address, a written or printed notice fixing the time and place
of such meeting.

         Section 4. Quorum. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a smaller number of shares may adjourn from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each share of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.

                                    ARTICLE 2
                                    DIRECTORS

         Section 1. Management. The affairs and business of the Company shall be
managed by or under the direction of the Board of Directors.

         Section 2. Number. The authorized number of directors that shall
constitute the Board of Directors shall be fixed from time to time by or
pursuant to a resolution passed by a majority of the Board of Directors within
the parameters set by the Charter of the Company. No more than two directors may
also be employees of the Company or any affiliate thereof.

         Section 3. Qualification. In addition to any other provisions of these
Bylaws, to be qualified for nomination for election or appointment to the Board
of Directors, a person must have not attained the age of sixty-nine years at the
time of such election or appointment, provided however, the Nominating and
Corporate Governance Committee may waive such qualification as to a particular
candidate otherwise qualified to serve as a director upon a good faith
determination by such committee that such a waiver is in the best interests of
the Company and its stockholders. The Chairman of the Board and the Chief
Executive Officer shall not be qualified to continue to serve as directors upon
the termination of their service in those offices for any reason.

         Section 4. Meetings. The Board of Directors shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Board of Directors, the Chief Executive Officer or the President.

         Section 5. Special Meetings. Special meetings of the Board of Directors
may be called at any time by the Chairman of the Board, the Chief Executive
Officer or the President, and shall be called upon the written request of a
majority of the directors.



         Section 6. Quorum. A majority of the directors elected and qualified
shall be necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.

         Section 7. Notice. Written notice shall be sent by mail to each
director of any special meeting of the Board of Directors, and of any change in
the time or place of any regular meeting, stating the time and place of such
meeting, which shall be mailed not less than two days before the time of holding
such meeting.

         Section 8. Vacancies. In the event of the death, resignation, removal,
inability to act or disqualification of any director, the Board of Directors,
although less than a quorum, shall have the right to elect the successor who
shall hold office for the remainder of the full term of the class of directors
in which the vacancy occurred, and until such director's successor shall have
been duly elected and qualified.

         Section 9. Organization Meeting. The Board of Directors at its first
meeting after its election by the stockholders shall appoint an Executive
Committee, an Audit Committee, a Compensation Committee and a Nominating and
Corporate Governance Committee, and shall elect from its own members a Chairman
of the Board, a Chief Executive Officer and a President, who may be the same
person. The Board of Directors shall also elect at such meeting a Secretary and
a Chief Financial Officer, who may be the same person, and may appoint at any
time such committees as it may deem advisable. The Board of Directors may also
elect at such meeting one or more Associate Directors. The Board of Directors,
the Executive Committee or another committee designated by the Board of
Directors may elect or appoint such other officers as they may deem advisable.

         Section 10. Removal. The Board of Directors may at any time remove,
with or without cause, any member of any committee appointed by it or any
associate director or officer elected by it and may appoint or elect his
successor.

         Section 11. Responsibility of Officers. The Board of Directors may
designate an officer to be in charge of such departments or divisions of the
Company as it may deem advisable.

         Section 12. Participation in Meetings. The Board of Directors or any
committee of the Board of Directors may participate in a meeting of the Board of
Directors or such committee, as the case may be, by conference telephone, video
facilities or other communications equipment. Any action required or permitted
to be taken at any meeting of the Board of Directors or any committee thereof
may be taken without a meeting if all of the members of the Board of Directors
or the committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of the Board of Directors or such
committee.

                                    ARTICLE 3
                      COMMITTEES OF THE BOARD OF DIRECTORS

         Section 1. Executive Committee.

                  (A) The Executive Committee shall be composed of not more than
nine (9) members, who shall be selected by the Board of Directors from its own
members, and who shall hold office at the pleasure of the Board of Directors.

                  (B) The Executive Committee shall have and may exercise, to
the fullest extent permitted by law, all of the powers of the Board of Directors
when it is not in session to transact all business for and on behalf of the
Company that may be brought before it.

                  (C) The Executive Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the call of the Chairman of the

                                       2


Executive Committee, the Chairman of the Board, the Chief Executive Officer or
the President. The majority of its members shall be necessary to constitute a
quorum for the transaction of business. Special meetings of the Executive
Committee may be held at any time when a quorum is present.

                  (D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.

                  (E) In the event of an emergency of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these Bylaws, any two available
members of the Executive Committee as constituted immediately prior to such
emergency shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article 3 of these Bylaws. In the event of the unavailability, at
such time, of a minimum of two members of the Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This Bylaw shall be subject to
implementation by resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
Bylaws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementing
resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this Section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these Bylaws.

         Section 2. Audit Committee.

                  (A) The Audit Committee shall be composed of not more than
five (5) members, who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer or employee of the Company, and shall
hold office at the pleasure of the Board.

                  (B) The Audit Committee shall have general supervision over
the Audit Services Division in all matters however subject to the approval of
the Board of Directors; it shall consider all matters brought to its attention
by the officer in charge of the Audit Services Division, review all reports of
examination of the Company made by any governmental agency or such independent
auditor employed for that purpose, and make such recommendations to the Board of
Directors with respect thereto or with respect to any other matters pertaining
to auditing the Company as it shall deem desirable.

                  (C) The Audit Committee shall meet whenever and wherever its
Chairperson, the Chairman of the Board, the Chief Executive Officer, the
President or a majority of the Committee's members shall deem it to be proper
for the transaction of its business. A majority of the Committee's members shall
constitute a quorum for the transaction of business. The acts of the majority at
a meeting at which a quorum is present shall constitute action by the Committee.

         Section 3. Compensation Committee.

                  (A) The Compensation Committee shall be composed of not more
than five (5) members, who shall be selected by the Board of Directors from its
own members, none of whom shall be an officer or employee of the Company, and
shall hold office at the pleasure of the Board of Directors.

                  (B) The Compensation Committee shall in general advise upon
all matters of policy concerning compensation, including salaries and employee
benefits.

                  (C) The Compensation Committee shall meet whenever and
wherever its Chairperson, the Chairman of the Board, the Chief Executive
Officer, the President or a majority of the Committee's members shall deem it to
be proper for the transaction of its business. A majority of the Committee's
members shall constitute a

                                       3


quorum for the transaction of business. The acts of the majority at a meeting at
which a quorum is present shall constitute action by the Committee.

         Section 4. Nominating and Corporate Governance Committee.

                  (A) The Nominating and Corporate Governance Committee shall be
composed of not more than five members, who shall be selected by the Board of
Directors from its own members, none of whom shall be an officer or employee of
the Company, and shall hold office at the pleasure of the Board of Directors.

                  (B) The Nominating and Corporate Governance Committee shall
provide counsel and make recommendations to the Chairman of the Board and the
full Board with respect to the performance of the Chairman of the Board and the
Chief Executive Officer, candidates for membership on the Board of Directors and
its committees, matters of corporate governance, succession planning for the
Company's executive management and significant shareholder relations issues.

                  (C) The Nominating and Corporate Governance Committee shall
meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief
Executive Officer, the President, or a majority of the Committee's members shall
deem it to be proper for the transaction of its business. A majority of the
Committee's members shall constitute a quorum for the transaction of business.
The acts of the majority at a meeting at which a quorum is present shall
constitute action by the Committee.

         Section 5. Other Committees. The Company may have such other committees
with such powers as the Board may designate from time to time by resolution or
by an amendment to these Bylaws.

         Section 6. Associate Directors.

                  (A) Any person who has served as a director may be elected by
the Board of Directors as an associate director, to serve at the pleasure of the
Board of Directors.

                  (B) Associate directors shall be entitled to attend all
meetings of directors and participate in the discussion of all matters brought
to the Board of Directors, but will not have a right to vote.

         Section 7. Absence or Disqualification of Any Member of a Committee. In
the absence or disqualification of any member of any committee created under
Article III of these Bylaws, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member.

                                    ARTICLE 4
                                    OFFICERS

         Section 1. Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the Board of Directors and shall have such further
authority and powers and shall perform such duties the Board of Directors may
assign to him from time to time.

         Section 2. Chief Executive Officer. The Chief Executive Officer shall
have the powers and duties pertaining to the office of Chief Executive Officer
conferred or imposed upon him by statute, incident to his office or as the Board
of Directors may assign to him from time to time. In the absence of the Chairman
of the Board, the Chief Executive Officer shall have the powers and duties of
the Chairman of the Board.

         Section 3. President. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon him by
statute, incident to his office or as the Board of Directors may assign to

                                       4


him from time to time. In the absence of the Chairman of the Board and the Chief
Executive Officer, the President shall have the powers and duties of the
Chairman of the Board.

         Section 4. Duties. The Chairman of the Board, the Chief Executive
Officer or the President, as designated by the Board of Directors, shall carry
into effect all legal directions of the Executive Committee and of the Board of
Directors and shall at all times exercise general supervision over the interest,
affairs and operations of the Company and perform all duties incident to his
office.

         Section 5. Vice Presidents. There may be one or more Vice Presidents,
however denominated by the Board of Directors, who may at any time perform all
of the duties of the Chairman of the Board, the Chief Executive Officer and/or
the President and such other powers and duties incident to their respective
offices or as the Board of Directors, the Executive Committee, the Chairman of
the Board, the Chief Executive Officer or the President or the officer in charge
of the department or division to which they are assigned may assign to them from
time to time.

         Section 6. Secretary. The Secretary shall attend to the giving of
notice of meetings of the stockholders and the Board of Directors, as well as
the committees thereof, to the keeping of accurate minutes of all such meetings,
recording the same in the minute books of the Company and in general notifying
the Board of Directors of material matters affecting the Company on a timely
basis. In addition to the other notice requirements of these Bylaws and as may
be practicable under the circumstances, all such notices shall be in writing and
mailed well in advance of the scheduled date of any such meeting. He shall have
custody of the corporate seal, affix the same to any documents requiring such
corporate seal, attest the same and perform other duties incident to his office.

         Section 7. Chief Financial Officer. The Chief Financial Officer shall
have general supervision over all assets and liabilities of the Company. He
shall be custodian of and responsible for all monies, funds and valuables of the
Company and for the keeping of proper records of the evidence of property or
indebtedness and of all transactions of the Company. He shall have general
supervision of the expenditures of the Company and periodically shall report to
the Board of Directors the condition of the Company, and perform such other
duties incident to his office or as the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or the
President may assign to him from time to time.

         Section 8. Controller. There may be a Controller who shall exercise
general supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors or the Audit Committee at
appropriate times a report relating to the general condition and internal
operations of the Company and perform other duties incident to his office.

         There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.

         Section 9. Audit Officers. The officer designated by the Board of
Directors to be in charge of the Audit Services Division of the Company, with
such title as the Board of Directors shall prescribe, shall report to and be
directly responsible to the Audit Committee and the Board of Directors.

         There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Services
Division.

         Section 10. Other Officers. There may be one or more officers,
subordinate in rank to all Vice Presidents with such functional titles as shall
be determined from time to time by the Board of Directors, who shall ex officio
hold the office of Assistant Secretary of the Company and who may perform such
duties as may be prescribed by the officer in charge of the department or
division to which they are assigned.

                                       5


         Section 11. Powers and Duties of Other Officers. The powers and duties
of all other officers of the Company shall be those usually pertaining to their
respective offices, subject to the direction of the Board of Directors, the
Executive Committee, the Chairman of the Board, the Chief Executive Officer or
the President and the officer in charge of the department or division to which
they are assigned.

         Section 12. Number of Offices. Any one or more offices of the Company
may be held by the same person, except that (A) no individual may hold more than
one of the offices of Chief Financial Officer, Controller or Audit Officer and
(B) none of the Chairman of the Board, the Chief Executive Officer or the
President may hold any office mentioned in Section 12(A).

                                    ARTICLE 5
                          STOCK AND STOCK CERTIFICATES

         Section 1. Transfer. Shares of stock shall be transferable on the books
of the Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.

         Section 2. Certificates. Every holder of stock shall be entitled to
have a certificate signed by or in the name of the Company by the Chairman of
the Board, the Chief Executive Officer or the President or a Vice President, and
by the Secretary or an Assistant Secretary, of the Company, certifying the
number of shares owned by him in the Company. The corporate seal affixed
thereto, and any of or all the signatures on the certificate, may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Company with the same effect as if he were such
officer, transfer agent or registrar at the date of issue. Duplicate
certificates of stock shall be issued only upon giving such security as may be
satisfactory to the Board of Directors or the Executive Committee.

         Section 3. Record Date. The Board of Directors is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment of
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days preceding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.

                                    ARTICLE 6
                                      SEAL

         The corporate seal of the Company shall be in the following form:

                  Between two concentric circles the words "Wilmington Trust
                  Company" within the inner circle the words "Wilmington,
                  Delaware."

                                    ARTICLE 7
                                   FISCAL YEAR

         The fiscal year of the Company shall be the calendar year.

                                       6


                                    ARTICLE 8
                     EXECUTION OF INSTRUMENTS OF THE COMPANY

         The Chairman of the Board, the Chief Executive Officer, the President
or any Vice President, however denominated by the Board of Directors, shall have
full power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power and
authority to attest and affix the corporate seal of the Company to any and all
deeds, conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.

                                    ARTICLE 9
               COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES

         Directors and associate directors of the Company, other than salaried
officers of the Company, shall be paid such reasonable honoraria or fees for
attending meetings of the Board of Directors as the Board of Directors may from
time to time determine. Directors and associate directors who serve as members
of committees, other than salaried employees of the Company, shall be paid such
reasonable honoraria or fees for services as members of committees as the Board
of Directors shall from time to time determine and directors and associate
directors may be authorized by the Company to perform such special services as
the Board of Directors may from time to time determine in accordance with any
guidelines the Board of Directors may adopt for such services, and shall be paid
for such special services so performed reasonable compensation as may be
determined by the Board of Directors.

                                   ARTICLE 10
                                 INDEMNIFICATION

         Section 1. Persons Covered. The Company shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director of the Company or is or was serving
at the request of the Company as a director, officer, employee, fiduciary or
agent of another corporation, partnership, limited liability company, joint
venture, trust, enterprise or non-profit entity that is not a subsidiary or
affiliate of the Company, including service with respect to employee benefit
plans, against all liability and loss suffered and expenses reasonably incurred
by such person. The Company shall be required to indemnify such a person in
connection with a proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors.

         The Company may indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may hereafter be amended,
any person who was or is made or threatened to be made a party or is otherwise
involved in any proceeding by reason of the fact that he, or a person for whom
he is the legal representative, is or was an officer, employee or agent of the
Company or a director, officer, employee or agent of a subsidiary or affiliate
of the Company, against all liability and loss suffered and expenses reasonably
incurred by such person. The Company may indemnify any such person in connection
with a proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the Board of Directors.

         Section 2. Advance of Expenses. The Company shall pay the expenses
incurred in defending any proceeding involving a person who is or may be
indemnified pursuant to Section 1 in advance of its final disposition,

                                       7


provided, however, that the payment of expenses incurred by such a person in
advance of the final disposition of the proceeding shall be made only upon
receipt of an undertaking by that person to repay all amounts advanced if it
should be ultimately determined that the person is not entitled to be
indemnified under this Article 10 or otherwise.

         Section 3. Certain Rights. If a claim under this Article 10 for (A)
payment of expenses or (B) indemnification by a director or person who is or was
serving at the request of the Company as a director, officer, employee,
fiduciary or agent of another corporation, partnership, limited liability
company, joint venture, trust, enterprise or nonprofit entity that is not a
subsidiary or affiliate of the Company, including service with respect to
employee benefit plans, is not paid in full within sixty days after a written
claim therefor has been received by the Company, the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action, the Company shall have the burden of proving that the claimant was not
entitled to the requested indemnification or payment of expenses under
applicable law.

         Section 4. Non-Exclusive. The rights conferred on any person by this
Article 10 shall not be exclusive of any other rights which such person may have
or hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.

         Section 5. Reduction of Amount. The Company's obligation, if any, to
indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or nonprofit entity shall be reduced by any amount such person
may collect as indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit entity.

         Section 6. Effect of Modification. Any amendment, repeal or
modification of the foregoing provisions of this Article 10 shall not adversely
affect any right or protection hereunder of any person in respect of any act or
omission occurring prior to the time of such amendment, repeal or modification.

                                   ARTICLE 11
                            AMENDMENTS TO THE BYLAWS

         These Bylaws may be altered, amended or repealed, in whole or in part,
and any new Bylaw or Bylaws adopted at any regular or special meeting of the
Board of Directors by a vote of a majority of all the members of the Board of
Directors then in office.

                                   ARTICLE 12
                                  MISCELLANEOUS

         Whenever used in these Bylaws, the singular shall include the plural,
the plural shall include the singular unless the context requires otherwise and
the use of either gender shall include both genders.

                                       8


                                    EXHIBIT C

                             SECTION 321(b) CONSENT

         Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.

                                            WILMINGTON TRUST COMPANY

Dated: December 30, 2003                    By: /s/ Bruce L. Bisson
                                                -------------------
                                            Name: Bruce L. Bisson
                                            Title: Vice President




                                    EXHIBIT D

                                     NOTICE

                  This form is intended to assist state nonmember banks and
                  savings banks with state publication requirements. It has not
                  been approved by any state banking authorities. Refer to your
                  appropriate state banking authorities for your state
                  publication requirements.

REPORT OF CONDITION

Consolidating domestic subsidiaries of the

WILMINGTON TRUST COMPANY        of        WILMINGTON
- ------------------------                  ----------
      Name of Bank                           City

in the State of DELAWARE, at the close of business on September 30, 2003.



                                                                                                            Thousands of dollars
                                                                                                         
ASSETS
Cash and balances due from depository institutions:
         Noninterest-bearing balances and currency and coins..............................................          230,570
         Interest-bearing balances........................................................................                0
Held-to-maturity securities...............................................................................            3,535
Available-for-sale securities.............................................................................        1,495,921
Federal funds sold in domestic offices....................................................................          762,660
Securities purchased under agreements to resell...........................................................           21,100
Loans and lease financing receivables:
         Loans and leases held for sale ..................................................................                0
         Loans and leases, net of unearned income ........................................................        5,590,617
         LESS: Allowance for loan and lease losses .......................................................           82,006
         Loans and leases, net of unearned income, allowance, and reserve.................................        5,508,611
Assets held in trading accounts...........................................................................                0
Premises and fixed assets (including capitalized leases)..................................................          142,808
Other real estate owned...................................................................................            1,605
Investments in unconsolidated subsidiaries and associated companies.......................................            2,749
Customers' liability to this bank on acceptances outstanding..............................................                0
Intangible assets:
         a. Goodwill......................................................................................              157
         b. Other intangible assets.......................................................................           11,997
Other assets..............................................................................................          168,077
Total assets..............................................................................................        8,349,790


                                                          CONTINUED ON NEXT PAGE



                                                                    EXHIBIT 25.1
                                                                REGISTRATION NO.

                                                                                                             
LIABILITIES

Deposits:
In domestic offices.......................................................................................      6,657,553
         Noninterest-bearing .............................................................................      1,437,091
         Interest-bearing ................................................................................      5,220,462
Federal funds purchased in domestic offices...............................................................         63,534
Securities sold under agreements to repurchase............................................................        256,775
Trading liabilities (from Schedule RC-D)..................................................................              0
Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases:............        620,438
Bank's liability on acceptances executed and outstanding..................................................              0
Subordinated notes and debentures.........................................................................              0
Other liabilities (from Schedule RC-G)....................................................................        112,978
Total liabilities.........................................................................................      7,711,278

EQUITY CAPITAL

Perpetual preferred stock and related surplus.............................................................              0
Common Stock..............................................................................................            500
Surplus (exclude all surplus related to preferred stock)..................................................        112,358
a. Retained earnings......................................................................................        538,018
b. Accumulated other comprehensive income.................................................................        (12,364)
Total equity capital......................................................................................        638,512
Total liabilities, limited-life preferred stock, and equity capital.......................................      8,349,790