UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.  20549
 
FORM 10-Q
 
ý QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
For the quarterly period ended June 30, 2004
 
or
 
o TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
For the transition period from            to           
 
Commission File Number: 000-30269
 
PIXELWORKS, INC.	
(Exact name of registrant as specified in its charter)	
 	 	 	
OREGON	 	91-1761992	
(State or other jurisdiction of incorporation)	 	(I.R.S. Employer Identification No.)	
 	 	 	
8100 SW Nyberg Road	
Tualatin, Oregon 97062	
(503) 454-1750	
(Address, including zip code, and telephone number, including
area code, of registrant’s principal executive offices)	
 
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the last 90 days.  Yes   ý     No   o
 
Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act).   Yes   ý     No   o
 
Number of shares of Common Stock outstanding as of July 31, 2004: 46,216,605

 
PIXELWORKS, INC.
FORM 10-Q
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 2004
 
TABLE OF CONTENTS
 
PART I – FINANCIAL INFORMATION	
 	
Item 1.	Financial Statements	
 	 	
 	Condensed Consolidated Balance Sheets	
 	Condensed Consolidated Statements of Operations	
 	Condensed Consolidated Statements of Cash Flows	
 	Notes to Condensed Consolidated Financial Statements	
 	 	
Item 2.	Management’s Discussion and Analysis of Financial Condition and Results of Operations	
 	 	
Item 3.	Quantitative and Qualitative Disclosures About Market Risk	
 	 	
Item 4.	Controls and Procedures	
 	 	
PART II – OTHER INFORMATION	
 	
Item 4.	Submission of Matters to a Vote of Security Holders	
 	 	
Item 6.	Exhibits and Reports on Form 8-K	
 	 	
SIGNATURES	

 
PART I – FINANCIAL INFORMATION
 
Item 1.                                                          Financial Statements
 
PIXELWORKS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands)
(Unaudited)
 
 	 	June 30,
2004	 	December 31,
2003	 	
 	 	 	 	 	 	
ASSETS	 	 	 	 	 	
 	 	 	 	 	 	
Current assets:	 	 	 	 	 	
Cash and cash equivalents	 	$	99,982	 	$	75,165	 	
Short-term marketable securities	 	102,761	 	5,656	 	
Accounts receivable, net	 	19,499	 	8,468	 	
Inventories, net	 	15,942	 	10,478	 	
Prepaid expenses and other current assets	 	4,604	 	4,826	 	
Total current assets	 	242,788	 	104,593	 	
 	 	 	 	 	 	
Long-term marketable securities	 	65,804	 	19,875	 	
Property and equipment, net	 	7,476	 	6,561	 	
Other assets, net	 	8,650	 	12,511	 	
Deferred tax assets, net	 	6,693	 	3,694	 	
Debt issuance costs, net	 	4,709	 	—	 	
Acquired intangible assets, net	 	3,028	 	3,535	 	
Goodwill	 	82,007	 	82,548	 	
Total assets	 	$	421,155	 	$	233,317	 	
 	 	 	 	 	 	
LIABILITIES AND SHAREHOLDERS’ EQUITY	 	 	 	 	 	
 	 	 	 	 	 	
Current liabilities:	 	 	 	 	 	
Accounts payable	 	$	10,872	 	$	4,330	 	
Accrued liabilities and current portion of long-term liabilities	 	13,193	 	8,582	 	
Income taxes payable	 	3,042	 	—	 	
Total current liabilities	 	27,107	 	12,912	 	
 	 	 	 	 	 	
Long-term liabilities	 	827	 	100	 	
Long-term debt	 	150,000	 	—	 	
Total liabilities	 	177,934	 	13,012	 	
 	 	 	 	 	 	
Shareholders’ equity:	 	 	 	 	 	
Preferred stock	 	—	 	—	 	
Common stock	 	305,825	 	294,235	 	
Shares exchangeable into common stock	 	6,214	 	7,888	 	
Deferred stock-based compensation	 	(236	)	(449	)	
Accumulated other comprehensive income	 	475	 	—	 	
Accumulated deficit	 	(69,057	)	(81,369	)	
Total shareholders’ equity	 	243,221	 	220,305	 	
Total liabilities and shareholders’ equity	 	$	421,155	 	$	233,317	 	
 
The accompanying notes are an integral part of these condensed consolidated financial statements.
 
3

 
PIXELWORKS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share data)
(Unaudited)
 
 	 	Three Months Ended
June 30,	 	Six Months Ended
June 30,	 	
 	 	2004	 	2003	 	2004	 	2003	 	
 	 	 	 	 	 	 	 	 	 	
Revenue	 	$	48,509	 	$	32,559	 	$	93,779	 	$	64,564	 	
Cost of revenue (1)	 	25,127	 	17,880	 	46,702	 	35,172	 	
Gross profit	 	23,382	 	14,679	 	47,077	 	29,392	 	
 	 	 	 	 	 	 	 	 	 	
Operating expenses:	 	 	 	 	 	 	 	 	 	
Research and development (2)	 	7,471	 	6,854	 	14,725	 	13,601	 	
Selling, general and administrative (3)	 	6,888	 	5,489	 	13,120	 	10,877	 	
Merger related expenses	 	—	 	1,398	 	—	 	2,977	 	
Stock-based compensation and amortization of assembled workforce	 	213	 	468	 	498	 	873	 	
Total operating expenses	 	14,572	 	14,209	 	28,343	 	28,328	 	
Income from operations	 	8,810	 	470	 	18,734	 	1,064	 	
 	 	 	 	 	 	 	 	 	 	
Interest income	 	528	 	305	 	764	 	690	 	
Interest expense	 	(294	)	(4	)	(295	)	(10	)	
Amortization of debt issuance costs	 	(115	)	—	 	(115	)	—	 	
Interest income, net	 	119	 	301	 	354	 	680	 	
Income before income taxes	 	8,929	 	771	 	19,088	 	1,744	 	
 	 	 	 	 	 	 	 	 	 	
Provision for income taxes	 	3,170	 	351	 	6,776	 	1,076	 	
 	 	 	 	 	 	 	 	 	 	
Net income	 	$	5,759	 	$	420	 	$	12,312	 	$	668	 	
 	 	 	 	 	 	 	 	 	 	
Net income per share:	 	 	 	 	 	 	 	 	 	
Basic	 	$	0.12	 	$	0.01	 	$	0.26	 	$	0.01	 	
Diluted	 	$	0.12	 	$	0.01	 	$	0.25	 	$	0.01	 	
 	 	 	 	 	 	 	 	 	 	
Weighted average shares outstanding:	 	 	 	 	 	 	 	 	 	
Basic	 	46,636	 	45,184	 	46,479	 	45,106	 	
Diluted	 	48,475	 	46,390	 	48,299	 	46,364	 	

(1)	Includes amortization of:	 	 	 	 	 	 	 	 	 	 	
 	Acquired developed technology	 	$	132	 	$	132	 	$	264	 	$	264	 	 	
 	Deferred stock-based compensation	 	—	 	2	 	—	 	5	 	 	
(2)	Excludes stock-based compensation of:	 	73	 	147	 	153	 	301	 	 	
(3)	Excludes stock-based compensation of:	 	18	 	79	 	102	 	87	 	 	

The accompanying notes are an integral part of these condensed consolidated financial statements.
 
4

 
PIXELWORKS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
 
 	 	Six Months Ended
June 30,	 	 	
 	 	2004	 	2003	 	 	 	
 	 	 	 	 	 	 	 	
Cash flows from operating activities:	 	 	 	 	 	 	 	
Net income	 	$	12,312	 	$	668	 	 	 	
Adjustments to reconcile net income to net cash provided by operating activities:	 	 	 	 	 	 	 	
Tax benefit from stock options	 	6,106	 	—	 	 	 	
Depreciation and amortization	 	3,196	 	3,137	 	 	 	
Deferred tax assets, net	 	(2,999	)	—	 	 	 	
Stock-based compensation and amortization of assembled workforce	 	498	 	878	 	 	 	
Loss on asset disposals	 	160	 	—	 	 	 	
Amortization of acquired developed technology	 	264	 	264	 	 	 	
Amortization of debt issuance costs	 	115	 	—	 	 	 	
Amortization of deferred tax charge	 	27	 	—	 	 	 	
Deferred rent	 	2	 	—	 	 	 	
Changes in operating assets and liabilities:	 	 	 	 	 	 	 	
Accounts receivable, net	 	(11,031	)	191	 	 	 	
Inventories, net	 	(5,464	)	(2,934	)	 	 	
Prepaid expenses and other current and long-term assets	 	299	 	(190	)	 	 	
Accounts payable	 	6,542	 	1,946	 	 	 	
Accrued current and long-term liabilities and income taxes payable	 	5,291	 	1,992	 	 	 	
Net cash provided by operating activities	 	15,318	 	5,952	 	 	 	
 	 	 	 	 	 	 	 	
Cash flows from investing activities:	 	 	 	 	 	 	 	
Purchases of marketable securities	 	(139,559	)	(16,025	)	 	 	
Proceeds from maturities of marketable securities	 	7,000	 	38,300	 	 	 	
Purchases of property and equipment	 	(3,186	)	(2,023	)	 	 	
Purchases of other assets	 	(2,736	)	(153	)	 	 	
Payments on accrued equipment and other asset balances	 	(1,632	)	(150	)	 	 	
Proceeds from sale of assets	 	3	 	—	 	 	 	
Net cash (used in) provided by investing activities	 	(140,110	)	19,949	 	 	 	
 	 	 	 	 	 	 	 	
Cash flows from financing activities:	 	 	 	 	 	 	 	
Proceeds from the issuance of long-term debt, net	 	145,500	 	—	 	 	 	
Proceeds from issuances of common stock	 	4,309	 	707	 	 	 	
Lease incentives	 	124	 	—	 	 	 	
Debt issuance costs	 	(324	)	—	 	 	 	
Net cash provided by financing activities	 	149,609	 	707	 	 	 	
 	 	 	 	 	 	 	 	
Net increase in cash and cash equivalents	 	24,817	 	26,608	 	 	 	
Cash and cash equivalents, beginning of period	 	75,165	 	62,152	 	 	 	
Cash and cash equivalents, end of period	 	$	99,982	 	$	88,760	 	 	 	
 	 	 	 	 	 	 	 	
Supplemental disclosure of cash flow information:	 	 	 	 	 	 	 	
Cash paid during the year for:	 	 	 	 	 	 	 	
Interest	 	$	1	 	$	9	 	 	 	
Income taxes	 	1	 	256	 	 	 	
 	 	 	 	 	 	 	 	
Supplemental disclosure of non-cash investing and financing activities:	 	 	 	 	 	 	 	
Transfer of cost-based investment to available-for-sale marketable security	 	$	10,000	 	$	—	 	 	 	
Acquisitions of property and equipment and other assets under extended payment terms	 	4,595	 	—	 	 	 	
Release and cancellation of common shares held in escrow	 	541	 	—	 	 	 	
Debt issuance costs withheld from proceeds	 	4,500	 	—	 	 	 	
 
The accompanying notes are an integral part of these condensed consolidated financial statements.
 
5

 
PIXELWORKS, INC.
Notes to Condensed Consolidated Financial Statements
(Unaudited)
(In thousands, except per share data)
 
NOTE 1:                BASIS OF PRESENTATION
 
These condensed consolidated financial statements have been prepared by Pixelworks, Inc. (“Pixelworks” or “the Company”) pursuant to the rules and regulations of the Securities and Exchange Commission.  Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”) have been condensed or omitted pursuant to such regulations, although we believe that the disclosures provided are adequate to prevent the information presented from being misleading.
 
The financial information included herein for the three and six months ended June 30, 2004 and 2003 is unaudited; however, such information reflects all adjustments that are, in the opinion of management, necessary for a fair presentation of the financial position, results of operations and cash flows of the Company for these interim periods.  The financial information as of December 31, 2003 is derived from our audited consolidated financial statements and notes thereto for the fiscal year ended December 31, 2003, included in Item 8 of our Annual Report on Form 10-K, and should be read in conjunction with such consolidated financial statements.
 
The results of operations for the three and six months ended June 30, 2004 are not necessarily indicative of the results expected for the entire fiscal year ending December 31, 2004.
 
Certain reclassifications have been made to the prior year condensed consolidated financial statements to conform to the current year presentation.
 
NOTE 2:                STOCK PLANS
 
We have a 1997 Stock Incentive Plan and a 2001 Non-Qualified Stock Option Plan under which employees, officers and directors may be granted stock options to purchase shares of the Company’s common stock.  We also have an Employee Stock Purchase Plan under which eligible employees may purchase shares of Pixelworks’ common stock at 85% of fair market value at specific, pre-determined dates.
 
As permitted by Statement of Financial Accounting Standards (“SFAS”) No. 123, Accounting for Stock-Based Compensation  (“SFAS 123”), and SFAS No. 148,  Accounting for Stock-Based Compensation — Transition and Disclosure, an Amendment of FASB Statement No. 123 , we continue to apply the intrinsic value based method of accounting for stock compensation described in APB Opinion No. 25,  Accounting for Stock Issued to Employees  (“Opinion 25”).  Entities electing to continue to apply Opinion 25 must make prominent pro-forma disclosures of net income and earnings per share as if the fair value based method prescribed by SFAS 123 had been applied.  Had we accounted for our stock-based compensation plans in accordance with SFAS 123, our net income would approximate the pro-forma amounts below:
 
6

 
 	 	Three Months Ended
June 30,	 	Six Months Ended
June 30,	 	
 	 	2004	 	2003	 	2004	 	2003	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net income as reported	 	$	5,759	 	$	420	 	$	12,312	 	$	668	 	
Add:  Stock-based compensation included in reported net loss, net of related tax effects	 	59	 	141	 	166	 	244	 	
Deduct:  Stock-based compensation determined under the fair value based method, net of related tax effects	 	(2,395	)	(2,272	)	(4,627	)	(4,450	)	
Pro-forma net income (loss)	 	$	3,423	 	$	(1,711	)	$	7,851	 	$	(3,538	)	
 	 	 	 	 	 	 	 	 	 	
Reported basic net income per share	 	$	0.12	 	$	0.01	 	$	0.26	 	$	0.01	 	
Pro-forma basic net income (loss) per share	 	$	0.07	 	$	(0.04	)	$	0.17	 	$	(0.08	)	
 	 	 	 	 	 	 	 	 	 	
Reported diluted net income per share	 	$	0.12	 	$	0.01	 	$	0.25	 	$	0.01	 	
Pro-forma diluted net income (loss) per share	 	$	0.07	 	$	(0.04	)	$	0.16	 	$	(0.08	)	
 
The fair value of stock-based compensation costs reflected in the above pro forma amounts were determined using the Black-Scholes option pricing model and the following weighted average assumptions:
 
 	 	Three Months Ended
June 30,	 	Six Months Ended
June 30,	 	
 	 	2004	 	2003	 	2004	 	2003	 	
 	 	 	 	 	 	 	 	 	 	
Stock Option Plans:	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	
Risk free interest rate	 	4.18	%	2.49	%	3.96	%	2.89	%	
Expected dividend yield	 	0	%	0	%	0	%	0	%	
Expected life (in years)	 	6.0	 	5.5	 	6.1	 	5.5	 	
Volatility	 	100	%	110	%	101	%	113	%	
 	 	 	 	 	 	 	 	 	 	
Employee Stock Purchase Plan:	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	
Risk free interest rate	 	1.92	%	1.91	%	1.90	%	1.84	%	
Expected dividend yield	 	0	%	0	%	0	%	0	%	
Expected life (in years)	 	1.8	 	1.5	 	1.6	 	1.2	 	
Volatility	 	104	%	105	%	104	%	101	%	
 
The effects of applying SFAS 123 in this pro forma disclosure are not indicative of future amounts and additional awards are anticipated in future periods.
 
7

 
NOTE 3:                BALANCE SHEET COMPONENTS
 
Marketable Securities
 
We categorize our marketable securities in accordance with SFAS No. 115, Accounting for Certain Investments in Debt and Equity Securities  (“SFAS 115”).  As of June 30, 2004 and December 31, 2003, all balances included in short-term marketable securities are classified as held-to-maturity.  As of December 31, 2003, all balances included in long-term marketable securities are classified as held-to-maturity, however as of June 30, 2004, long-term marketable securities consist of held-to-maturity securities and an available-for-sale security as follows:
 
Held-to-maturity securities	 	$	55,329	 	
Available-for-sale security	 	10,475	 	
 	 	$	65,804	 	
 
Held-to-maturity marketable securities are stated at amortized cost in the condensed consolidated balance sheets.  We have the positive intent and ability to hold these securities until maturity. Unrealized gains and losses on held-to-maturity marketable securities were not material at June 30, 2004 and December 31, 2003.
 
The available-for-sale security is stated at fair value in the condensed consolidated balance sheet.  The available-for-sale security balance represents the fair value of our investment in Semiconductor Manufacturing International Corporation (“SMIC”) at June 30, 2004.  We made a $10,000 investment in SMIC during the third quarter of 2003 and recorded it at cost in other long-term assets at December 31, 2003.  In March of 2004, SMIC completed its initial public offering and as a result, we now account for the investment as an available-for-sale security in accordance with SFAS 115.  At June 30, 2004, the $475 unrealized holding gain on our SMIC investment is recorded in other comprehensive income, a component of shareholders’ equity.
 
Accounts Receivable
 
Accounts receivable are recorded at invoiced amount and do not bear interest.  We do not have any off balance sheet exposure risk related to customers.  Accounts receivable are stated net of an allowance for doubtful accounts, which is maintained for estimated losses resulting from the inability of our customers to make required payments.  Accounts receivable, net consist of the following:
 
 	 	June 30,
2004	 	December 31,
2003	 	
 	 	 	 	 	 	
Accounts receivable, gross	 	$	19,711	 	$	8,680	 	
Allowance for doubtful accounts	 	(212	)	(212	)	
Accounts receivable, net	 	$	19,499	 	$	8,468	 	
 
8

 
Inventories
 
Inventories consists of finished goods and work-in-process, and are stated at the lower of standard cost (which approximates actual cost on a first-in, first-out basis) or market (net realizable value), net of a reserve for slow moving and obsolete items.   Inventories, net consist of the following:
 
 	 	June 30,
2004	 	December 31,
2003	 	
 	 	 	 	 	 	
Finished goods	 	$	11,917	 	$	7,134	 	
Work-in-process	 	4,025	 	3,344	 	
 	 	$	15,942	 	$	10,478	 	
 
The reserve for slow moving and obsolete items was $1,374 and $1,942 at June 30, 2004 and December 31, 2003, respectively.
 
While we do not currently expect to be able to sell or otherwise use the reserved inventory we have on hand based upon our forecast and backlog, it is possible that a customer will decide in the future to purchase a portion of the reserved inventory.  It is not currently possible to predict if or when this will happen, or how much we may sell.  We do not expect that if such sales occur, they will have a material impact on gross profit margin.
 
Accrued Liabilities
 
Accrued liabilities consist of the following:
 
 	 	June 30,
2004	 	December 31,
2003	 	
 	 	 	 	 	 	
Payroll and related liabilities	 	$	3,722	 	$	3,502	 	
Accrued manufacturing liabilities	 	1,484	 	1,179	 	
Accrued payments for asset purchases	 	2,601	 	—	 	
Accrued royalties and sales commissions	 	1,040	 	656	 	
Reserve for sales returns and allowances	 	734	 	202	 	
Accrued legal and accounting costs	 	466	 	103	 	
Reserve for warranty returns	 	429	 	569	 	
Accrued interest payable	 	314	 	—	 	
Other	 	2,403	 	2,371	 	
 	 	$	13,193	 	$	8,582	 	
 
The following is a summary of the change in our reserve for sales returns and allowances for the six months ended June 30, 2004 and 2003:
 
9

 
 	 	Six Months Ended
June 30,	 	
 	 	2004	 	2003	 	
 	 	 	 	 	 	
Beginning balance	 	$	202	 	$	588	 	
Provision	 	620	 	464	 	
Charge offs	 	(88	)	(556	)	
Ending balance	 	$	734	 	$	496	 	
 
The following is a summary of the change in our reserve for warranty returns for the six months ended June 30, 2004 and 2003:
 
 	 	Six Months Ended
June 30,	 	
 	 	2004	 	2003	 	
 	 	 	 	 	 	
Beginning balance	 	$	569	 	$	769	 	
Provision	 	87	 	(60	)	
Charge offs	 	(227	)	(105	)	
Ending balance	 	$	429	 	$	604	 	
 
Long-Term Debt
 
On May 18, 2004, we issued $125,000 of Convertible Subordinated Debentures (“the debentures”) due 2024 in a private offering pursuant to Rule 144A under the Securities Act of 1933 and outside of the United States in accordance with Regulation S under the Securities Act.  On June 4, 2004, we issued an additional $25,000 of debentures pursuant to the exercise of an option granted to the initial purchasers.
 
The debentures bear interest at a rate of 1.75% per annum and interest is payable on May 15 and November 15 of each year, beginning November 15, 2004.  The debentures are convertible, under certain circumstances, into our common stock at a conversion rate of 41.0627 shares of common stock per $1,000 principal amount of debentures for a total of 6,159 shares.  This is equivalent to a conversion price of approximately $24.35 per share.  The debentures are convertible if (a) during any calendar quarter, the market price of our common stock exceeds 130% of the conversion price per share for at least 20 trading days during the period of 30 consecutive trading days ending on the last trading day of the previous calendar quarter, (b) the trading price of the debentures declines to less than 98% of the product of the closing sale price of our common stock and the number of shares issuable upon conversion of $1,000 principal amount of the debentures for five consecutive trading days, (c) a call for redemption occurs, or (d) in the event of certain other corporate transactions.  We may redeem some or all of the debentures for cash on or after May 15, 2011 at a price equal to 100% of the principal amount of the debentures plus accrued and unpaid interest.  The holders of the debentures have the right to require us to purchase all or a portion of their debentures on May 15, 2011, May 15, 2014 and May 15, 2019 at a price equal to 100% of the principal amount plus accrued and unpaid interest.
 
We have agreed to file a shelf registration statement with the Securities and Exchange Commission covering resales of the debentures and the common stock issuable upon conversion of the debentures.  If we fail to file the registration statement as required, or if the registration
 
10

 
statement is not declared effective as required, we must pay liquidated damages in an amount equal to 0.25% or 0.50% per annum of the principal amount of the debentures.  The debentures are unsecured obligations and are subordinated in right of payment to all our existing and future senior debt.
 
Accumulated Other Comprehensive Income
 
As of June 30, 2004, we had an unrealized gain, net of tax, on our available-for-sale investment in SMIC of $475.  This unrealized gain was recorded during the period in accumulated other comprehensive income.  Total comprehensive income for the three and six months ended June 30, 2004 is as follows:
 
 	 	Three Months
Ended
June 30, 2004	 	Six Months
Ended
June 30, 2004	 	
 	 	 	 	 	 	
Net income	 	$	5,759	 	$	12,312	 	
Unrealized (loss) gain on available-for-sale marketable security, net of tax	 	(2,840	)	475	 	
Comprehensive income	 	$	2,919	 	$	12,787	 	
 
During 2003, we had no transactions that were required to be reported in comprehensive income other than net income or loss.
 
NOTE 4:                EARNINGS PER SHARE
 
The shares used in the computation of basic and diluted net income per share are as follows:
 
 	 	Three Months Ended
June 30,	 	Six Months Ended
June 30,	 	
 	 	2004	 	2003	 	2004	 	2003	 	
 	 	 	 	 	 	 	 	 	 	
Weighted average common shares outstanding, basic	 	46,636	 	45,184	 	46,479	 	45,106	 	
Dilutive effect of employee stock options and vesting of restricted stock	 	1,839	 	1,206	 	1,820	 	1,258	 	
Weighted average common shares outstanding, diluted	 	48,475	 	46,390	 	48,299	 	46,364	 	
 
The computation of basic weighted average common shares outstanding includes exchangeable shares.  These exchangeable shares, which were issued on September 6, 2002 by Jaldi, our Canadian subsidiary, to its shareholders in connection with our Jaldi asset acquisition, have characteristics essentially equivalent to Pixelworks common stock.
 
For the three and six months ended June 30, 2004, respectively, approximately 683 and 1,251 weighted average shares related to stock options were excluded from the calculation of diluted weighted average shares outstanding because the exercise prices of these options were equal to, or greater than, the average market price of Pixelworks common stock during these periods.  As a result, their inclusion would have been anti-dilutive.  For the three and six months ended June 30, 2003, respectively, approximately 4,338 and 4,198 weighted average shares related to stock options were excluded for this reason.
 
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The common shares issuable upon conversion of the convertible subordinated debentures have been excluded from dilutive common shares, as the circumstances that allow for conversion were not met.
 
NOTE 5:                SEGMENT INFORMATION
 
In accordance with SFAS No. 131, Disclosures about Segments of an Enterprise and Related Information, we have identified a single operating segment: the design and development of integrated circuits for electronic display devices.  Substantially all of our assets are located in the United States.
 
Geographic Information
 
Revenue by geographic region, attributed to countries based on the domicile of the customer, was as follows:
 
 	 	Three Months Ended
June 30,	 	Six Months Ended
June 30,	 	
 	 	2004	 	2003	 	2004	 	2003	 	
 	 	 	 	 	 	 	 	 	 	
Japan	 	$	17,281	 	$	11,303	 	$	34,722	 	$	26,177	 	
Taiwan	 	12,078	 	9,846	 	23,722	 	15,964	 	
China	 	9,978	 	3,982	 	16,784	 	6,004	 	
Korea	 	2,841	 	3,625	 	7,116	 	8,673	 	
Europe	 	3,722	 	1,736	 	6,100	 	3,310	 	
U.S.	 	609	 	483	 	1,194	 	854	 	
Other	 	2,000	 	1,584	 	4,141	 	3,582	 	
 	 	$	48,509	 	$	32,559	 	$	93,779	 	$	64,564	 	
 
Significant Customers
 
Sales to distributors represented 71% and 63% of total revenue for the three months ended June 30, 2004 and 2003, respectively, and 71% and 65% of total revenue for the six months ended June 30, 2004 and 2003, respectively.  The following distributors accounted for 10% or more of total revenue for the periods presented:
 
 	 	Three Months Ended
June 30,	 	Six Months Ended
June 30,	 	
 	 	2004	 	2003	 	2004	 	2003	 	
 	 	 	 	 	 	 	 	 	 	
Distributor A	 	27	%	31	%	29	%	37	%	
Distributor B	 	14	%	19	%	16	%	15	%	
 
Sales to our top five end customers represented 34% and 38% of total revenue for the three months ended June 30, 2004 and 2003, respectively.  Sales to our top five end customers represented 32% and 34% of revenue for the six months ended June 30, 2004 and 2003, respectively.  End customers include customers who purchase directly from us, as well as customers who purchase our products indirectly through distributors and contract manufacturers.
 
The following accounts represented 10% or more of gross accounts receivable:
 
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 	 	June 30,
2004	 	December 31,
2003	 	
 	 	 	 	 	 	
Account A	 	23	%	20	%	
Account B	 	12	%	33	%	
Account C	 	10	%	1	%	
Account D	 	7	%	11	%	
 
NOTE 6:                GENESIS MICROCHIP TRANSACTION
 
On March 17, 2003, we announced the execution of a definitive merger agreement with Genesis Microchip.  On August 5, 2003, we entered into an agreement terminating the merger agreement.  In the termination agreement, we agreed to pay a termination fee of $5,500 to Genesis Microchip.  The fee was payable upon execution of the termination agreement, and was recognized as an expense in the third quarter of 2003.  Total expenses related to the proposed merger during the three and six months ended June 30, 2003 were $1,398 and $2,977, respectively.
 
Item 2.                                                          Management’s Discussion and Analysis of FinancialConditionand Results of Operations
 
Forward-looking Statements
 
This Management’s Discussion and Analysis of Financial Condition and Results of Operations and other sections of this Report contain “forward-looking statements” within the meaning of the Securities Litigation Reform Act of 1995 that are based on current expectations, estimates, beliefs, assumptions and projections about our business.  Words such as “expects,” “anticipates,” “intends,” “plans,” “believes,” “seeks,” “estimates” and variations of such words and similar expressions are intended to identify such forward-looking statements.  These statements are not guarantees of future performance and involve certain risks and uncertainties that are difficult to predict.  Actual outcomes and results may differ materially from what is expressed or forecasted in such forward-looking statements due to numerous factors.   Such factors include, but are not limited to, increased competition, continued adverse economic conditions in the U.S. and internationally, including adverse economic conditions in the specific markets for our products, adverse business conditions, failure to design, develop and manufacture new products, lack of success in technological advancements, lack of acceptance of new products, unexpected changes in the demand for our products and services, the inability to successfully manage inventory pricing pressures, failure to reduce costs or improve operating efficiencies, changes to and compliance with international laws and regulations, currency fluctuations and our ability to attract, hire and retain key and qualified employees.  These forward-looking statements speak only as of the date on which they are made, and we do not undertake any obligation to update any forward-looking statement to reflect events or circumstances after the date of this Report on Form 10-Q.  If we do update or correct one or more forward-looking statements, you should not conclude that we will make additional updates or corrections with respect thereto or with respect to other forward-looking statements.
 
(In thousands, except per share data)
 
Overview
 
We are a leading designer, developer and marketer of semiconductors and software for the advanced display industry, including advanced televisions, multimedia projectors and flat panel
 
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monitors.  Our system-on-chip semiconductors provide the ‘intelligence’ for these new types of displays by processing and optimizing video and computer graphic signals to produce high-quality and realistic images.  Many of the world’s leading manufacturers of consumer electronics and computer display products utilize our technology to enhance image quality and ease of use of their products.  Our goal is to provide all of the electronics necessary to process the entire signal path in order to provide a turnkey solution for our customers.
 
We sell our products worldwide through a direct sales force and indirectly through distributors and manufacturers representatives.  We sell to distributors in Japan, Taiwan, China and Europe.  Sales to distributors represented 71% and 63% of total revenue for the three months ended June 30, 2004 and 2003, respectively, and 71% and 65% of total revenue for the six months ended June 30, 2004 and 2003, respectively.  Manufacturers representatives support some of our European and Korean sales.
 
Historically, significant portions of our revenue have been generated by sales to a relatively small number of end customers and distributors.  Sales to our top five end customers represented 34% and 38% of total revenue for the three months ended June 30, 2004 and 2003, respectively.  Sales to our top five end customers represented 32% and 34% of revenue for the six months ended June 30, 2004 and 2003, respectively.  End customers are customers that indirectly purchase our products through distributors and contract manufacturers as well as directly from us.
 
Significant portions of our products are sold overseas.  Sales outside the U.S. accounted for approximately 99% of total revenue for the three and six months ended June 30, 2004 and 2003.  Our integrators, branded manufacturers and branded suppliers incorporate our products into systems that are sold worldwide.  All revenue to date has been denominated in U.S. dollars.
 
Critical Accounting Policies and Estimates
 
Our discussion and analysis of our financial condition and results of operations are based on our financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”).  The preparation of financial statements in conformity with GAAP requires management to make estimates and judgments that affect the amounts reported in the financial statements and accompanying notes.  On an on-going basis, we evaluate our estimates, including those related to product returns, warranty obligations, inventories, property and equipment, intangible assets, income taxes, litigation and other contingencies.  We base our estimates on historical experience and various other assumptions that we believe to be reasonable under the circumstances.  Actual results may differ from these estimates under different assumptions or conditions.
 
We believe the following critical accounting policies affect our more significant judgments and estimates used in the preparation of our consolidated financial statements:
 
Revenue Recognition.  We recognize revenue in accordance with Staff Accounting Bulletin No. 104, Revenue Recognition.  Accordingly, revenue is recognized when an authorized purchase order has been received, the sales price is fixed and determinable, title has transferred, collection of the resulting receivable is probable and product returns are reasonably estimable.  This generally occurs upon shipment of the underlying merchandise for product sales to direct customers.  This also occurs upon shipment of the underlying merchandise for product sales to distributors if the distributor has a firm sales commitment from an end customer.
 
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Sales Returns and Allowances.  Our customers do not have a stated right to return product other than under our warranty policy discussed below.  As such, customer returns are accepted on a case-by-case basis only as a customer accommodation.  However, certain of our distributors have stock rotation provisions in their distributor agreements, which allow them to return 5-10% of the products purchased in the prior six months in exchange for products of equal value.  Certain distributors also have price protection provisions in their agreements with us.
 
We record estimated reductions to gross profit for these sales returns and allowances in our reserve for sales returns and allowances.  We update the balance in this reserve based on historical experience at each reporting period.  If actual returns and allowances increase, we may be required to recognize additional reductions to revenue.
 
Product Warranties.  We warrant that our products will be free from defects in materials and workmanship for a period of twelve months from delivery.  Warranty repairs are guaranteed for the remainder of the original warranty period.  Our warranty is limited to repairing or replacing products, or refunding the purchase price.
 
We record the estimated cost of product warranties in our warranty reserve.  We update the balance in this reserve based on historical experience at each reporting period.  While we engage in extensive product quality programs and processes, which include actively monitoring and evaluating the quality of our suppliers, should actual product failure rates or product replacement costs differ from our estimates, revisions to the estimated warranty liability may be required.
 
Allowance for Doubtful Accounts.  We offer credit to customers after careful examination of their creditworthiness.  We maintain an allowance for doubtful accounts for estimated losses that may result from the inability of our customers to make required payments.  We update the balance in the allowance based on historical experience and the age of outstanding receivables at each reporting period.  If the financial condition of our customers were to deteriorate, resulting in an impairment of their ability to make payments, additional allowances may be required.
 
Inventory Valuation.  We record a reserve against our inventory for estimated obsolete, unmarketable, and otherwise impaired products by calculating the difference between the cost of inventory and the estimated market value based upon assumptions about future demand and market conditions.  We review our inventory at the end of each reporting period for valuation issues.  If actual market conditions are less favorable than those projected by us at the time the reserve was recorded, additional inventory write-downs may be required.
 
Useful Lives and Recoverability of Equipment and Other Long-Lived Assets.  In accordance with Statement of Financial Accounting Standards (“SFAS”) No. 144  Accounting for the Impairment or Disposal of Long-Lived Assets , we evaluate the remaining useful life and recoverability of equipment and other assets, including identifiable intangible assets with definite lives, whenever events or changes in circumstances indicate that the carrying amount of the assets may not be recoverable.  If there is an indication of impairment, we prepare an estimate of future, undiscounted cash flows expected to result from the use of each asset and its eventual disposition.  If these cash flows are less than the carrying value of the asset, we adjust the carrying amount of the asset to its estimated fair value.
 
Goodwill.  Goodwill, which represents the excess of cost over the fair value of net assets acquired in business combinations, is tested annually for impairment, and is tested for impairment more frequently if events and circumstances indicate that it might be impaired.  The impairment tests are performed in accordance with SFAS No. 142,  Goodwill and Other Intangible Assets
 
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Accordingly, an impairment loss is recognized to the extent that the carrying amount of goodwill exceeds its implied fair value.  This determination is made at the reporting unit level.  We have assigned all goodwill to a single, enterprise-level reporting unit.  The impairment test consists of two steps.  First, we determine the fair value of the reporting unit.  The fair value is then compared to its carrying amount.  Second, if the carrying amount of the reporting unit exceeds its fair value, an impairment loss is recognized for any excess of the carrying amount of the reporting unit’s goodwill over the implied fair value of that goodwill.  The implied fair value of goodwill is determined by allocating the fair value of the reporting unit in a manner similar to a purchase price allocation in accordance with SFAS No. 141,  Business Combinations .  The residual fair value after this allocation is the implied fair value of the reporting unit goodwill.  We perform our annual impairment test in the first quarter of each year.  We did not record any impairment losses against goodwill when we performed the test in the first quarter of 2004 or 2003.
 
Income Taxes.  We record a valuation allowance to reduce our deferred tax assets to the amount that we believe is more likely than not realizable.  Should we determine that we will not be able to realize all or part of our net deferred tax asset in the future, an adjustment to the deferred tax asset would be charged to income in the period such determination was made.
 
Results of Operations
 
The following table sets forth certain financial data for the periods indicated:
 
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 	 	Three Months Ended June 30,	 	Six Months Ended June 30,	 	 	
 	 	2004	 	2003	 	2004	 	2003	 	 	 	 	 	
 	 	Dollars	 	% of
sales	 	Dollars	 	% of
sales	 	Dollars	 	% of
sales	 	Dollars	 	% of
sales	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Revenue	 	$	48,509	 	100.0	%	$	32,559	 	100.0	%	$	93,779	 	100.0	%	$	64,564	 	100.0	%	 	 	 	 	 	 	 	
Cost of revenue	 	25,127	 	51.8	 	17,880	 	54.9	 	46,702	 	49.8	 	35,172	 	54.5	 	 	 	 	 	 	 	 	
Gross profit	 	23,382	 	48.2	 	14,679	 	45.1	 	47,077	 	50.2	 	29,392	 	45.5	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Operating expenses:	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Research and development	 	7,471	 	15.4	 	6,854	 	21.1	 	14,725	 	15.7	 	13,601	 	21.1	 	 	 	 	 	 	 	 	
Selling, general and administrative	 	6,888	 	14.2	 	5,489	 	16.9	 	13,120	 	14.0	 	10,877	 	16.8	 	 	 	 	 	 	 	 	
Merger related expenses	 	—	 	0.0	 	1,398	 	4.3	 	—	 	0.0	 	2,977	 	4.6	 	 	 	 	 	 	 	 	
Stock-based compensation and amortization of assembled workforce	 	213	 	0.4	 	468	 	1.4	 	498	 	0.5	 	873	 	1.4	 	 	 	 	 	 	 	 	
Total operating expenses	 	14,572	 	30.0	 	14,209	 	43.6	 	28,343	 	30.2	 	28,328	 	43.9	 	 	 	 	 	 	 	 	
Income from operations	 	8,810	 	18.2	 	470	 	1.4	 	18,734	 	20.0	 	1,064	 	1.6	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Interest income	 	528	 	1.1	 	305	 	0.9	 	764	 	0.8	 	690	 	1.1	 	 	 	 	 	 	 	 	
Interest expense	 	(294	)	(0.6	)	(4	)	(0.0	)	(295	)	(0.3	)	(10	)	(0.0	)	 	 	 	 	 	 	 	
Amortization of debt issuance costs	 	(115	)	(0.2	)	—	 	0.0	 	(115	)	(0.1	)	—	 	0.0	 	 	 	 	 	 	 	 	
Interest income, net	 	119	 	0.2	 	301	 	0.9	 	354	 	0.4	 	680	 	1.1	 	 	 	 	 	 	 	 	
Income before income taxes	 	8,929	 	18.4	 	771	 	2.4	 	19,088	 	20.4	 	1,744	 	2.7	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Provision for income taxes	 	3,170	 	6.5	 	351	 	1.1	 	6,776	 	7.2	 	1,076	 	1.7	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net income	 	$	5,759	 	11.9	%	$	420	 	1.3	%	$	12,312	 	13.1	%	$	668	 	1.0	%	 	 	 	 	 	 	 	

Percentages may not add due to rounding.
 
Revenue
 
Revenue for the three moths ended June 30, 2004 was 49% higher than revenue for the three months ended June 30, 2003.  Revenue for the six months ended June 30, 2004 was 45% higher than revenue for the six months ended June 30, 2003.  Changes in units shipped and average selling prices were as follows:
 
 	 	Percent
Change in
Units Sold	 	Percent Change
in Average
Selling Price	 	
Three months ended June 30, 2004 compared to three months ended June 30, 2003	 	70	%	-12	%	
Six months ended June 30, 2004 compared to six months ended June 30, 2003	 	67	%	-13	%	
 
Revenue by market as a percentage of total revenue was as follows:
 
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 	 	Three Months Ended
June 30,	 	Six Months Ended
June 30,	 	
 	 	2004	 	2003	 	2004	 	2003	 	
 	 	 	 	 	 	 	 	 	 	
Multimedia projectors	 	43	%	51	%	46	%	54	%	
Advanced televisions	 	41	%	25	%	39	%	19	%	
LCD monitors	 	14	%	22	%	13	%	23	%	
Other	 	2	%	2	%	2	%	4	%	
 
Multimedia Projectors
 
Total revenue from multimedia projector sales increased 25% from $16,551 in the second quarter of 2003 to $20,708 in the second quarter of 2004.  Units shipped increased 41%, while average selling prices decreased 11%.  For the six months ended June 30, 2004, total revenue from multimedia projector sales was $43,100, an increase of 23% over $35,183 for the six months ended June 30, 2003.  Units shipped during the six months ended June 30, 2004 were 40% higher than during the six months ended June 30, 2003, while average selling prices were 12% lower.  The growth in unit shipments and decrease in average selling prices were driven primarily by the sub-$1,000 and consumer segments of the projector market continuing to expand.  Recently we identified 36 models of projectors priced under $1,000 and believe that we will continue to see the price points of projectors come down within the next two years.
 
Consistent with the three and six months ended June 30, 2003, the majority of our sales to multimedia projector manufacturers during the three and six months ended June 30, 2004 were to customers located in Japan.  Japanese customers accounted for 68% and 61% of total projector revenue for the three months ended June 30, 2004 and 2003, respectively, and 66% and 64% of total projector revenue for the six months ended June 30, 2004 and 2003, respectively.
 
We believe that we are likely to realize a sequential increase of up to 10% in projector revenue in the third quarter of 2004.  We expect some of this increase to be seasonal, because the projector business is usually slow in June and July and then generally picks up in August and September.  Additionally, our orders hit record levels in the second quarter of 2004, which we believe points to a strong third quarter in 2004 for this market.
 
Advanced Televisions
 
Total revenue from advanced television sales increased 146% from $8,037 in the second quarter of 2003 to $19,774 in the second quarter of 2004.  Units shipped increased 175%, while average selling prices decreased 11%.  For the six months ended June 30, 2004, total revenue from advanced television sales was $36,991, an increase of 195% over $12,537 for the six months ended June 30, 2003.  Units shipped during the six months ended June 30, 2004 were 252% higher than during the six months ended June 30, 2003, while average selling prices were 16% lower.  The unit growth was attributable to growth in the overall market for advanced televisions as well as possible market share gains in some segments of the overall advanced television market.  We believe our breadth of applications for our products in the advanced television business has also helped us to increase our advanced television revenue.
 
The following table shows advanced television revenue by display technology:
 
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 	 	Three Months Ended
June 30,	 	Six Months Ended
June 30,	 	
 	 	2004	 	2003	 	2004	 	2003	 	
 	 	 	 	 	 	 	 	 	 	
Digital Cathode Ray Tube (CRT)	 	35	%	28	%	31	%	27	%	
Liquid Crystal Display (LCD)	 	32	%	47	%	42	%	43	%	
Plasma	 	27	%	20	%	23	%	24	%	
Digital Rear Projection / Other	 	6	%	5	%	4	%	6	%	
 
The majority of our television revenue is generated on sales to customers in China, Taiwan and Korea, with sales to television manufacturers in these three countries comprising 74% of total television revenue for the three months ended June 30, 2004 and 2003, respectively, and 77% and 74% of total television revenue for the six months ended June 30, 2004 and 2003, respectively.
 
We expect sequential growth of 5-10% in advanced television revenue during the third quarter of 2004.  We believe that we will see softness in this market in July and August; however we believe that we will see strengthening as panel prices stabilize at new lower levels in September and the Christmas build cycle gets into full swing.  We also believe that the advanced television market as a whole will grow 75-100% this year to an estimated 18 to 20 million units.
 
LCD Monitors
 
Total revenue from LCD monitor sales decreased 1% from $7,079 in the second quarter of 2003 to $7,002 in the second quarter of 2004.  Units shipped increased 6% but average selling prices decreased 6%.  For the six months ended June 30, 2004, total revenue from LCD monitor sales was $11,754, a decrease of 20% over $14,706 for the six months ended June 30, 2003.  Units shipped during the six months ended June 30, 2004 were 16% lower than during the six months ended June 30, 2003, and average selling prices were 5% lower.  The relatively small decrease in average selling prices was attributable to an increase in the percentage of chips sold into Ultra Extended Graphics Array (“UXGA”) monitors, which carry higher average selling prices than chips sold into Super Extended Graphics Array (“SXGA”) or Extended Graphics Array (“XGA”) monitors.
 
The following table shows LCD monitor revenue by resolution:
 
 	 	Three Months Ended
June 30,	 	Six Months Ended
June 30,	 	 	
 	 	2004	 	2003	 	2004	 	2003	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	
XGA	 	18	%	22	%	22	%	30	%	 	 	 	
SXGA	 	31	%	29	%	30	%	37	%	 	 	 	
UXGA	 	51	%	49	%	48	%	33	%	 	 	 	
 
The majority of our LCD monitor revenue is generated on sales to customers located in Taiwan.  Taiwanese customers accounted for 71% and 62% of LCD monitor revenue for the three months ended June 30, 2004 and 2003, respectively, and 64% and 43% of LCD monitor revenue for the six months ended June 30, 2004 and 2003, respectively.
 
Based on backlog and estimated orders, we expect a sequential decrease in monitor revenue of approximately 30%, or $2,000, in the third quarter of 2004.
 
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Other
 
Other revenue includes sales of evaluation kits as well as the impact of changes in our reserve for sales returns.  It also includes sales into small, niche markets that are unrelated to our three primary markets for our products.  We do not expect other revenue to be significant in the near future.
 
Cost of sales and gross profit
 
Cost of sales includes purchased materials, assembly, test, labor and overhead, warranty expense, royalties, amortization of purchased developed technology and provisions for slow moving and obsolete inventory.
 
Gross profit increased to 48.2% and 50.2% for the three and six months ended June 30, 2004, respectively, from 45.1% and 45.5% for the comparable periods in 2003.  The increases are primarily driven by wafer and back-end product cost reductions that resulted from manufacturing efficiencies.
 
We expect our gross profit margin to decrease to between 45.0% and 47.0% in the third quarter of 2004.  This decrease is attributable to normal levels of average selling price erosion without any offsetting decrease in product costs.
 
Research and development
 
Research and development expense is primarily comprised of compensation and related costs for personnel, development and non-recurring engineering expenses, depreciation and amortization, expensed equipment and fees for outside services.  Research and development expense, inclusive of stock-based compensation expense, was as follows:
 
 	 	Three Months Ended
June 30,	 	Six Months Ended
June 30,	 	 	
 	 	2004	 	2003	 	2004	 	2003	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	
Research and development expense, inclusive of stock-based compensation	 	$	7,544	 	$	7,001	 	$	14,878	 	$	13,902	 	 	 	 	

Research and development expense, inclusive of stock-based compensation expense, increased $543, or 8%, from the three months ended June 30, 2003 to the three months ended June 30, 2004 due to the following offsetting factors:
 
•                  Depreciation and amortization expense increased $226 due to an increase in purchases of licensed technology assets during the three months ended June 30, 2004.
 
•                  Expensed equipment and software purchases increased $220.
 
•                  Travel expenses increased $119.
 
•                  Stock-based compensation expense decreased $74 due to our use of the accelerated method of expense recognition, under which less expense is recognized in later periods.
 
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The $976, or 7%, increase in research and development expense from the six months ended June 30, 2003 to the six months ended June 30, 2004 was due to the following offsetting factors:
 
•                  Development-related expenses, including non-recurring engineering and outside services, increased $486.  The increase is attributable to the timing of projects in progress during the respective periods.
 
•                  Expensed equipment and software increased $380.
 
•                  We recorded a $163 loss on the disposal of licensed technology during the three months ended March 31, 2004.  We will no longer utilize the licensed technology in our product development efforts and we have no alternative uses for it.
 
•                  Travel expenses increased $126.
 
•                  Our research and development compensation expense decreased $102.
 
•                  Stock-based compensation expense decreased $148 due to our use of the accelerated method of expense recognition, under which less expense is recognized in later periods.
 
We expect our research and development expense to continue to increase in future periods to support our on going investment in new product development programs.
 
Selling, general and administrative
 
Selling, general and administrative expense includes compensation and related costs for personnel, travel, outside services, sales commissions and overhead incurred in our sales, marketing, customer support, management, legal and other professional and administrative support functions.  Selling, general and administrative expense, inclusive of stock-based compensation expense, was as follows:
 
 	 	Three Months Ended
June 30,	 	Six Months Ended
June 30,	 	 	
 	 	2004	 	2003	 	2004	 	2003	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	
Selling, general and administrative expense inclusive of stock-based compensation	 	$	6,906	 	$	5,568	 	$	13,222	 	$	10,964	 	 	 	 	

Selling, general and administrative expense, inclusive of stock-based compensation expense, increased $1,338, or 24%, from the three months ended June 30, 2003 to the three months ended June 30, 2004 due to the following factors:
 
•                  Compensation costs increased $407 from the three months ended June 30, 2003 to the three months ended June 30, 2004.  The increase is attributable to an increase in headcount in administrative, sales and marketing personnel required to support our growing revenue base and new regulatory requirements.
 
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•                  Outside services, including accounting and legal fees, increased $355.  The increase is attributable to higher legal fees related to patent applications, legal fees associated with restructuring corporate subsidiaries in China, and accounting fees incurred during 2004 related to Sarbanes-Oxley compliance.
 
•                  Our travel and trade show expenses increased $247.
 
•                  Our telephone and other communications expenses increased $93.
 
•                  Our recruiting expenses increased $80.
 
•                  Our expensed equipment increased $50.
 
The $2,258, or 21%, increase in selling, general and administrative expense from the six months ended June 30, 2003 to the six months ended June 30, 2004 was due to the following factors:
 
•                  Compensation costs increased $736 from the six months ended June 30, 2003 to the six months ended June 30, 2004.  The increase is attributable to an increase in headcount in administrative, sales and marketing personnel required to support our growing revenue base and new regulatory requirements.
 
•                  Outside services, including accounting and legal fees, increased $471.  The increase is attributable to higher fees for general corporate matters as well as accounting fees incurred during 2004 related to Sarbanes-Oxley compliance.
 
•                  Our travel and trade show expenses increased $326.
 
•                  Our insurance expense increased $120 primarily related to higher Directors and Officers insurance premiums.
 
•                  Our telephone and other communications expenses increased $113.
 
•                  Our recruiting expenses increased $108.
 
•                  Our investor relations expenses increased $93.
 
•                  Our expensed equipment increased $86.
 
We expect our selling, general and administrative expenses to increase in future periods.  The increases will result from higher sales-related and overhead costs that will be required to support a higher revenue base.
 
Merger-related expenses
 
On March 17, 2003, we announced the execution of a definitive merger agreement with Genesis Microchip.  On August 5, 2003, we entered into an agreement terminating the merger.  Merger-related expenses of $1,398 and $2,977 during the three and six months ended June 30, 2003, respectively, resulted from this proposed merger, and consisted primarily of legal fees.
 
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Stock-based compensation and amortization of assembled workforce
 
Stock-based compensation and amortization of assembled workforce was $213 and $498 for the three and six months ended June 30, 2004, respectively, compared to $468 and $873 for the comparable periods in 2003.  Stock-based compensation and amortization of assembled workforce decreased due to the following factors:
 
•                  A decrease in the carrying amount and quarterly amortization amount of the assembled workforce asset.  These decreases resulted from a re-allocation of the Jaldi Semiconductor purchase price in 2003 due to an intellectual property asset purchase agreement that was entered into by Pixelworks, Inc. and Jaldi.  As a result of the agreement, the original purchase price allocation was revised to reallocate $1,332 of the excess purchase price over the fair value of the net assets acquired from the assembled workforce asset to a deferred tax charge and a reduction in the deferred tax liability.
 
•                  Our use of the accelerated method of expense recognition for deferred stock-based compensation, under which less expense is recognized in later periods.
 
Interest income, net
 
Interest income, net includes interest income earned on cash equivalents and short and long-term marketable securities, interest expense related to the 1.75% convertible subordinated debentures that we issued in May and June of 2004, and amortization of debt issuance costs which have been capitalized and are included in long term assets on the balance sheet.  The debt issuance costs are being amortized over a 7 year term.
 
Interest income was $528 and $764 for the three and six months ended June 30, 2004, respectively, and $305 and $690 for the comparable periods in 2003.  Interest expense was $294 and $295 for the three and six months ended June 30, 2004, respectively, and $4 and $10 for the comparable periods in 2003.  Interest income increased due to our investment of the proceeds from the issuance of our convertible subordinated debentures in marketable securities.  Interest expense increased due to the issuance of our 1.75% convertible debentures in May and June of 2004.
 
Provision for income taxes
 
The provision for income taxes for the three and six months ended June 30, 2004 increased to $3,170 and $6,776, respectively, from $351 and $1,076 for the comparable periods in 2003.  The increase in the provision was primarily attributable to our increased income before taxes offset by various credits and other permanent items.  The effective tax rate differs from the federal statutory rate primarily due to the following items: non-cash and other permanent income and expense items recognized differently for book and tax purposes; the utilization of federal and state tax credits; and, in 2003, an increase in our valuation allowance related to Jaldi’s net operating losses.  Due to the termination of the proposed merger with Genesis Microchip in the three months ended June 30, 2003, certain merger-related costs treated as non-deductible for tax purposes in the three months ended March 31, 2003 became deductible.  Therefore, the provision for income taxes for the three months ended June 30, 2003 had been reduced to reflect the change in treatment for the six months ended June 30, 2003.
 
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Liquidity and Capital Resources
 
Cash and cash equivalents and short and long-term marketable securities
 
As of June 30, 2004 we had cash and cash equivalents of $99,982, short and long-term marketable securities of $168,565 and working capital of $215,681.  Cash provided by operations during the six months ended June 30, 2004 was $15,318 compared to $5,952 during the six months ended June 30, 2003.  The increase in cash flows from operations is directly attributable to higher net income and increases in accounts payable and accrued liabilities, offset by increases in accounts receivable and inventory.
 
Cash used in investing activities during the six months ended June 30, 2004 was $140,110.  This compares to $19,949 provided by investing activities during the six months ended June 30, 2003.  Cash used in investing activities during the six months ended June 30, 2004 was used primarily for purchases of marketable securities, purchases of property and equipment and other assets, and payments on accrued balances related to asset acquisitions.  Cash generated from investing activities during the six months ended June 30, 2003 resulted primarily from maturities of marketable securities.
 
Cash provided by financing activities was $149,609 and $707 for the six months ended June 30, 2004 and 2003, respectively.  Cash provided by financing activities includes $145,500 in net proceeds from the issuance of convertible subordinated debentures during the six months ended June 30, 2004 (see Capital Resources below).  It also includes proceeds from the issuance of common stock of $4,309 and $707 for the six months ended June 30, 2004 and 2003, respectively.
 
We anticipate that our existing cash and investment balances, along with cash expected to be generated from operations will be adequate to fund our operating and investing needs for the next twelve months and the foreseeable future.  From time to time, we may evaluate acquisitions of businesses, products or technologies that compliment our business.  Any such transactions, if consummated, may consume a material portion of our working capital or require the issuance of equity securities that may result in dilution to existing shareholders.
 
Accounts receivable, net
 
Accounts receivable, net increased to $19,499 at June 30, 2004 from $8,468 at December 31, 2003.  Average days sales outstanding increased to 36 at June 30, 2004 compared to 19 days at December 31, 2003.  The increase in days sales outstanding is attributable to a greater portion of shipments in the last month of the second quarter of 2004 as compared to the third month of the fourth quarter of 2003.
 
Inventories, net
 
Inventories, net increased to $15,942 at June 30, 2004 from $10,478 at December 31, 2003.  Inventory turnover remained consistent at approximately 8 from December 31, 2003 to June 30, 2004.  At June 30, 2004, this represents approximately eight weeks of inventory, which is within our target range of six to eight weeks of inventory.
 
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Capital resources
 
On May 18, 2004, we issued $125,000 of Convertible Subordinated Debentures (“the debentures”) due 2024 in a private offering pursuant to Rule 144A under the Securities Act of 1933 and outside of the United States in accordance with Regulation S under the Securities Act.  On June 4, 2004, we issued an additional $25,000 of debentures pursuant to the exercise of an option granted to the initial purchasers.  We intend to use the net proceeds from this offering for general corporate purposes, including potential acquisitions.
 
The debentures bear interest at a rate of 1.75% per annum and interest is payable on May 15 and November 15 of each year, beginning November 15, 2004.  The debentures are convertible, under certain circumstances, into our common stock at a conversion rate of 41.0627 shares of common stock per $1,000 principal amount of debentures for a total of 6,159 shares.  This is equivalent to a conversion price of approximately $24.35 per share.  The debentures are convertible if (a) during any calendar quarter, the market price of our common stock exceeds 130% of the conversion price per share for at least 20 trading days during the period of 30 consecutive trading days ending on the last trading day of the previous calendar quarter, (b) the trading price of the debentures declines to less than 98% of the product of the closing sale price of our common stock and the number of shares issuable upon conversion of $1,000 principal amount of the debentures for five consecutive trading days, (c) a call for redemption occurs, or (d) in the event of certain other corporate transactions.  We may redeem some or all of the debentures for cash on or after May 15, 2011 at a price equal to 100% of the principal amount of the debentures plus accrued and unpaid interest.  The holders of the debentures have the right to require us to purchase all or a portion of their debentures on May 15, 2011, May 15, 2014 and May 15, 2019 at a price equal to 100% of the principal amount plus accrued and unpaid interest.
 
We have agreed to file a shelf registration statement with the Securities and Exchange Commission covering resales of the debentures and the common stock issuable upon conversion of the debentures.  The debentures are unsecured obligations and are subordinated in right of payment to all our existing and future senior debt.
 
Contractual Payment Obligations
 
A summary of our contractual commitments and obligations as of June 30, 2004 is as follows:
 
Contractual Obligation	 	Payments Due By Period	 	 	
 	 	Total	 	2004	 	2005 and
2006	 	2007 and
2008	 	2009 and
beyond	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	
Operating Leases	 	$	6,824	 	$	2,635	 	$	3,300	 	$	820	 	$	69	 	 	
Estimated Q3 2004 purchase commitments to contract manufacturers	 	23,038	 	23,038	 	—	 	—	 	—	 	 	

The lease payments above are net of sublease rentals of $73, $95 and $40 for the years ending December 31, 2004, 2005 and 2006, respectively.
 
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Off-Balance Sheet Arrangements
 
We do not have any off-balance sheet arrangements that have or are reasonably likely to have a material current or future effect on our financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources.
 
RISK FACTORS
 
Investing in our securities involves a high degree of risk.  If any of the following risks occur, the market price of our shares of common stock could decline and investors could lose all or part of their investment.
 
(In thousands, except per share data.)
 
Risks Related to our Operations
 
We have incurred net losses since our inception, and we may not achieve or sustain annual profitability.
 
While we had $5,759 and $12,312 of net income in the three and six months ended June 30, 2004, our accumulated deficit is $69,057 through June 30, 2004, and we have never been profitable in any full year period. In the future we expect our research and development and selling, general and administrative expenses to increase. Given expected increases in operating expenses, we must increase revenues and gross profit to become profitable. We cannot be certain that we will achieve profitability in the future or, if we do, that we can sustain or increase profitability on a quarterly or annual basis. This may in turn cause the price of our common stock to decline. In addition, if we are not profitable in the future we may be unable to continue our operations.
 
Fluctuations in our quarterly operating results make it difficult to predict our future performance and may result in volatility in the market price of our common stock.
 
Our quarterly operating results have varied significantly from quarter to quarter and are likely to vary significantly in the future based on a number of factors related to our industry and the markets for our products. Some of these factors are not in our control and any of them may cause the price of our common stock to fluctuate. These factors include:
 
•                  demand for multimedia projectors, advanced televisions, and LCD monitors;
 
•                  demand for our products and the timing of orders for our products;
 
•                  the deferral of customer orders in anticipation of new products or product enhancements from us or our competitors or due to a reduction in our end customers’ demand;
 
•                  the loss of one or more of our key distributors or customers or a reduction, delay or cancellation of orders from one or more of these parties;
 
•                  changes in the available production capacity at the semiconductor fabrication foundries that manufacture our products and changes in the costs of manufacturing;
 
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•                  our ability to provide adequate supplies of our products to customers and avoid excess inventory;
 
•                  announcement or introduction of products and technologies by our competitors;
 
•                  changes in product mix, product costs or pricing, or distribution channels; and
 
•                  general economic conditions and economic conditions specific to the advanced display and semiconductor markets.
 
These factors are difficult or impossible to forecast, and these or other factors could seriously harm our business. We anticipate the rate of new orders may vary significantly from quarter to quarter.
 
Our operating expenses and inventory levels are based on our expectations of future revenues and our operating expenses are relatively fixed in the short term. Consequently, if anticipated sales and shipments in any quarter do not occur when expected, operating expenses and inventory levels could be disproportionately high, and our operating results for that quarter and, potentially, future quarters may be negatively impacted. Any shortfall in our revenues would have a direct impact on our business. In addition, fluctuations in our quarterly results could adversely affect the price of our common stock in a manner unrelated to our long-term operating performance. Because our operating results are volatile and difficult to predict, you should not rely on the results of one quarter as an indication of our future performance. It is possible that in some future quarter our operating results will fall below the expectations of securities analysts and investors. In this event, the price of our common stock may decline significantly.
 
Our products are characterized by average selling prices that decline over relatively short time periods, which will negatively affect financial results unless we are able to reduce our product costs or introduce new products with higher average selling prices.
 
Average selling prices for our products decline over relatively short time periods while many of our product costs are fixed. When our average selling prices decline, our gross profits decline unless we are able to sell more units or reduce the cost to manufacture our products. Our operating results are negatively affected when revenue or gross profit margins decline. We have experienced these problems and expect that we will continue to experience them in the future, although we cannot predict when they may occur or how severe they will be.
 
Our highly integrated products and high-speed mixed signal products are difficult to manufacture without defects and the existence of defects in the manufactured products could result in an increase in our costs and delays in the availability of our products.
 
The manufacture of semiconductors is a complex process and it is often difficult for semiconductor foundries to produce semiconductors free of defects. Because our products are more highly integrated than many other semiconductors and incorporate mixed analog and digital signal processing and embedded memory technology, they are even more difficult to produce without defects.
 
The ability to manufacture products of acceptable quality depends on both product design and manufacturing process technology. Since defective products can be caused by either design or manufacturing difficulties, identifying quality problems can occur only by analyzing and testing our semiconductors in a system after they have been manufactured. The difficulty in identifying defects
 
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is compounded because the process technology is unique to each of the multiple semiconductor foundries we contract with to manufacture our products. Failure to achieve defect-free products due to their increasing complexity may result in an increase in our cost and delays in the availability of our products. For example, we have experienced field failures of our ICs in certain customer system applications that required us to institute additional IC level testing. As a result of these field failures we incurred additional costs due to customers returning potentially affected products. Additionally, customers have experienced delays in receiving product shipments from us that resulted in the loss of revenue and profits. Shipment of defective products may also harm our reputation with customers.
 
If we do not achieve additional design wins in the future, our ability to grow would be seriously limited.
 
Our future success will depend on developers of advanced display products designing our products into their systems. To achieve design wins we must define and deliver cost-effective, innovative and integrated semiconductors. Once a supplier’s products have been designed into a system, the developer may be reluctant to change its source of components due to the significant costs associated with qualifying a new supplier. Accordingly, the failure on our part to obtain additional design wins with leading branded manufacturers or integrators, and to successfully design, develop and introduce new products and product enhancements could harm our business, financial condition and results of operations.
 
Achieving a design win does not necessarily mean that a developer will order large volumes of our products. A design win is not a binding commitment by a developer to purchase our products. Rather, it is a decision by a developer to use our products in the design process of that developer’s products. Developers can choose at any time to discontinue using our products in their designs or product development efforts. If our products are chosen to be incorporated into a developer’s products, we may still not realize significant revenues from that developer if that developer’s products are not commercially successful or if that developer chooses to qualify a second source for the products that we promote.
 
Because of the complex nature of our semiconductor designs and of the associated manufacturing process and the rapid evolution of our customers’ product designs we may not be able to develop new products or product enhancements in a timely manner, which could decrease customer demand for our products and reduce our revenues.
 
The development of our semiconductors, some of which incorporate mixed analog and digital signal processing, is highly complex. These complexities require that we employ advanced designs and manufacturing processes that are unproven. We have experienced increased development time and delays in introducing new products that resulted in significantly less revenue than originally expected for those products. We will not always succeed in developing new products or product enhancements nor will we always do so in a timely manner. Acquisitions have significantly added to the complexity of our product development efforts. We must now coordinate very complex product development programs between multiple, geographically dispersed locations.
 
Many of our designs involve the development of new high-speed analog circuits that are difficult to simulate and that require physical prototypes not required by the primarily digital circuits we currently design. The result could be longer and less predictable development cycles.
 
Successful development and timely introduction of new or enhanced products depends on a number of other factors, including:
 
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•                  accurate prediction of customer requirements and evolving industry standards, including digital interface and content piracy protection standards;
 
•                  development of advanced display technologies and capabilities;
 
•                  timely completion and introduction of new product designs;
 
•                  use of advanced foundry processes and achievement of high manufacturing yields; and
 
•                  market acceptance of the new products.
 
If we are not able to successfully develop and introduce our products in a timely manner, our business and results of operations will be adversely affected.
 
Integration of software in our products adds complexity and cost that may affect our ability to achieve design wins and may affect our profitability.
 
Our products incorporate software and software development tools. The integration of software adds complexity, may extend our internal development programs and could impact our customers’ development schedules. This complexity requires increased coordination between hardware and software development schedules and may increase our operating expenses without a corresponding increase in product revenue. Some customers and potential customers may choose not to use our products because of the additional requirements of implementing our software, preferring to use a product that works with their existing software. This additional level of complexity lengthens the sales cycle and may result in customers selecting competitive products requiring less software integration.
 
A significant amount of our revenue comes from a few customers and distributors. Any decrease in revenues from, or loss of any of these customers or distributors, could significantly reduce our total revenues.
 
We are and will continue to be dependent on a limited number of large distributors and customers for a substantial portion of our revenue. Sales to distributors represented 71% of our total revenue for the three and six months ended June 30, 2004, and 63% and 65% of total revenue for the three and six months ended June 30, 2003, respectively. During the three and six months ended June 30, 2004, sales to Tokyo Electron Device Limited, or TED, our distributor in Japan, represented 27% and 29% of our total revenue, respectively. Sales to TED represented 31% and 37% of total revenue in the comparable periods in 2003. Sales to our top five end customers accounted for approximately 34% and 32% of our total revenue for the three and six months ended June 30, 2004, respectively, and 38% and 34% of our total revenue for the comparable periods in 2003. As a result of this distributor and end customer concentration, any one of the following factors could significantly impact our revenues:
 
•                  a significant reduction, delay or cancellation of orders from one or more of our key distributors, branded manufacturers or integrators; or
 
•                  a decision by one or more significant customers to select products manufactured by a competitor, or its own internally developed semiconductor, for inclusion in future product generations.
 
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The display manufacturing market is highly concentrated among relatively few large manufacturers. We expect our operating results to continue to depend on revenues from a relatively small number of distributors that sell our products to display manufacturers and their suppliers.
 
The concentration of our accounts receivable with a limited number of customers exposes us to increased credit risk and could seriously harm our operating results and cash flows.
 
At June 30, 2004, we had three customers that each represented more than 10% of our accounts receivable balance. TED represented 23% and 20% of our total accounts receivable at June 30, 2004 and December 31, 2003, respectively. Neoview, our distributor in Taiwan, represented 12% and 33% of total accounts receivable at June 30, 2004 and December 31, 2003, respectively. A third customer accounted for 10% of total accounts receivable at June 30, 2004 and a fourth customer accounted for 11% of total accounts receivable at December 31, 2003. The failure to pay these balances by TED, Neoview or any other customer representing 10% or more of our total accounts receivable in the future would result in a significant expense that would increase our operating expenses and would reduce our cash flows.
 
International sales account for almost all of our revenue, and if we do not successfully address the risks associated with our international operations, our revenue could decrease.
 
Sales outside the U.S. accounted for approximately 99% of total revenue for the three and six months ended June 30, 2004 and for the comparable periods in 2003. Most of our customers are concentrated in Japan, Taiwan, China and Korea, with aggregate sales from those four countries accounting for 87% and 88% of our total revenue during the three and six months ended June 30, 2004 and 88% during the comparable periods of 2003. We anticipate that sales outside the U.S. will continue to account for a substantial portion of our revenue in future periods. In addition, customers who incorporate our products into their products sell a substantial portion of them outside of the U.S., thereby exposing us indirectly to further international risks. In addition, all of our products are manufactured outside of the U.S. We are, therefore, subject to many international risks, including, but not limited to:
 
•                  increased difficulties in managing international distributors and manufacturers of our products and components due to varying time zones, languages and business customs;
 
•                  foreign currency exchange fluctuations such as the devaluation in the currencies of Japan, Taiwan and Korea that could result in an increased cost of procuring our semiconductors;
 
•                  potentially adverse tax consequences, such as license fee revenue taxes imposed in Japan;
 
•                  difficulties regarding timing and availability of export and import licenses, which have limited our ability to freely move demonstration equipment and samples in and out of Asia;
 
•                  political and economic instability, particularly in China, Taiwan and Korea;
 
•                  reduced or limited protection of our intellectual property, significant amounts of which are contained in software, which is more prone to design piracy;
 
•                  increased transaction costs related to sales transactions conducted outside of the U.S. such as charges to secure letters of credit for foreign receivables;
 
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•                  difficulties in maintaining sales representatives outside of the U.S. that are knowledgeable about the display processor industry and our display processor products;
 
•                  changes in the regulatory environment in China, Japan, Korea and Taiwan that may significantly impact purchases of our products by our customers;
 
•                  outbreaks of SARS in China or other parts of Asia; and
 
•                  difficulties in collecting accounts receivable.
 
Our growing presence and investment within the Peoples Republic of China subjects us to risks of economic and political instability in the area, which could adversely impact our results of operations.
 
A substantial and potentially increasing portion of our products are manufactured by foundries located in the Peoples Republic of China, or the PRC, and a large number of our customers are geographically concentrated in the PRC. In addition, approximately 30 percent of our employees are located in this area and we made an investment of $10,000 in Semiconductor Manufacturing International Corporation (SMIC) located in Shanghai, China in the third quarter of 2003. Disruptions from natural disasters, health epidemics (including new outbreaks of SARS) and political, social and economic instability may affect the region, and would have a negative impact on our results of operations. In addition, the economy of the PRC differs from the economies of many countries in respects such as structure, government involvement, level of development, growth rate, capital reinvestment, allocation of resources, self-sufficiency, rate of inflation and balance of payments position, among others. In the past, the economy of the PRC has been primarily a planned economy subject to state plans. Since the entry of the PRC into the World Trade Organization in 2002, the PRC government has been reforming its economic and political systems. These reforms have resulted in significant economic growth and social change. We cannot assure, however, that the PRC government’s policies for economic reforms will be consistent or effective. Our results of operations and financial position may be harmed by changes in the PRC’s political, economic or social conditions.
 
Our dependence on selling through distributors and integrators increases the complexity of managing our supply chain and may result in excess inventory or inventory shortages.
 
Selling through distributors reduces our ability to forecast sales and increases the complexity of our business. Since our distributors act as intermediaries between us and the companies using our products, we must rely on our distributors to accurately report inventory levels and production forecasts. This arrangement requires us to manage a more complex supply chain and monitor the financial condition and creditworthiness of our distributors and customers. Our failure to manage one or more of these challenges could result in excess inventory or shortages that could seriously impact our operating revenue or limit the ability of companies using our semiconductors to deliver their products.
 
Dependence on a limited number of sole-source, third party manufacturers for our products exposes us to shortages based on capacity allocation or low manufacturing yield, errors in manufacturing, price increases with little notice, volatile inventory levels and delays in product delivery, which could result in delays in satisfying customer demand, increased costs and loss of revenues.
 
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We do not own or operate a semiconductor fabrication facility and we do not have the resources to manufacture our products internally. We rely on third party foundries for wafer fabrication and other contract manufacturers for assembly and testing of our products. Our requirements represent only a small portion of the total production capacity of our contract manufacturers. Our third-party manufacturers have in the past re-allocated capacity to other customers even during periods of high demand for our products. We expect that this may occur in the future. We have limited control over delivery schedules, quality assurance, manufacturing yields, potential errors in manufacturing and production costs. We do not have long-term supply contracts with our third-party manufacturers so they are not obligated to supply us with products for any specific period, in any specific quantity or at any specific price, except as may be provided in a particular purchase order. From time to time our third-party manufacturers increase prices charged to manufacture our products with little notice. This requires us to either increase the price we charge for our products or suffer a decrease in our gross margins. We try not to maintain substantial inventories of products, but need to order products long before we have firm purchase orders for those products which could result in excess inventory or inventory shortages.
 
If we are unable to obtain our products from manufacturers on schedule, our ability to satisfy customer demand will be harmed, and revenue from the sale of products may be lost or delayed. If orders for our products are cancelled, expected revenues would not be realized. In addition, if the price charged by our third-party manufacturers increases we will be required to increase our prices, which could harm our competitiveness.
 
The concentration of our manufactures and customers in the same geographic region increases our risk that a natural disaster, labor strike or political unrest could disrupt our operations.
 
Most of our current manufacturers and customers are located in China, Japan, Korea and Taiwan. The risk of earthquakes in the Pacific Rim region is significant due to the proximity of major earthquake fault lines in the area. A current manufacturer’s facilities were affected by a significant earthquake in Taiwan in September 1999. As a consequence of this earthquake, the manufacturer suffered power outages and disruption that impaired its production capacity. Earthquakes, fire, flooding, power outages and other natural disasters in the Pacific Rim region, or political unrest, labor strikes or work stoppages in countries where our manufacturers and customers are located likely would result in the disruption of our foundry partners’ assembly capacity. Any disruption resulting from extraordinary events could cause significant delays in shipments of our solutions until we are able to shift our manufacturing or assembling from the affected contractor to another third-party vendor. There can be no assurance that alternative capacity could be obtained on favorable terms, if at all.
 
We use a COT, or customer owned tooling, process for manufacturing some of our products which exposes us to the possibility of poor yields and unacceptably high product costs.
 
We are building many of our products on a customer owned tooling basis, also known in the semiconductor industry as COT, where we directly contract the manufacture of wafers and assume the responsibility for the assembly and testing of our products. As a result, we are subject to increased risks arising from wafer manufacturing yields and risks associated with coordination of the manufacturing, assembly and testing process. Poor product yields would result in higher product costs, which could make our products uncompetitive with products offered by our competitors, thereby resulting in low gross profit margins or loss of revenue, or both.
 
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We are dependent on our foundries to implement complex semiconductor technologies, which could adversely affect our operations if those technologies are not available, delayed or inefficiently implemented.
 
In order to increase performance and functionality and reduce the size of our products, we are continuously developing new products using advanced technologies that further miniaturize semiconductors. However, we are dependent on our foundries to develop and provide access to the advanced processes that enable such miniaturization. We cannot be certain that future advanced manufacturing processes will be implemented without difficulties, delays or increased expenses. Our business, financial condition and results of operations could be materially and adversely affected if advanced manufacturing processes are unavailable to us, substantially delayed or inefficiently implemented.
 
Manufacturers of our semiconductor products periodically discontinue manufacturing processes, which could make our products unavailable from our current suppliers.
 
Semiconductor manufacturing technologies change rapidly and manufacturers typically discontinue older manufacturing processes in favor of newer ones. Once a manufacturer makes the decision to retire a manufacturing process, notice is generally given to its customers. Customers will then either retire the affected part or develop a new version of the part that can be manufactured on the newer process. In the event that a manufacturing process is discontinued, our products could become unavailable from our current suppliers. Additionally, migrating to a new, more advanced process requires significant expenditures for research and development. A significant portion of our products use 0.25um embedded DRAM technology and the required manufacturing process for these technologies will likely be available for the next two years. We also utilize a 0.18um standard logic process, which we expect will be readily available for the next five to seven years. We have commitments from our suppliers to notify us in the event of a discontinuance of a manufacturing process in order to assist us with product transitions.
 
If we have to qualify a new contract manufacturer or foundry for any of our products, we may experience delays that result in lost revenues and damaged customer relationships.
 
None of our products are fabricated by more than one supplier. Additionally, our products require manufacturing with state-of-the-art fabrication equipment and techniques. Because the lead-time needed to establish a relationship with a new contract manufacturer is at least six months, and the estimated time for us to adapt a product’s design to a particular contract manufacturer’s processes is at least four months, there is no readily available alternative source of supply for any specific product. This could cause significant delays in shipping products, which may result in lost revenues and damaged customer relationships.
 
Our future success depends upon the continued services of key personnel, many of whom would be difficult to replace and the loss of one or more of these employees could seriously harm our business by delaying product development.
 
Our future success depends upon the continued services of our executive officers, key hardware and software engineers, and sales, marketing and support personnel, many of whom would be difficult to replace. The loss of one or more of these employees, particularly Allen Alley, our President and Chief Executive Officer, could seriously harm our business. In addition, because of the highly technical nature of our business, the loss of key engineering personnel could delay product introductions and significantly impair our ability to successfully create future products. We believe our success depends, in large part, upon our ability to identify, attract and retain qualified hardware
 
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and software engineers, and sales, marketing, finance and managerial personnel. Competition for talented personnel is intense and we may not be able to retain our key personnel or identify, attract or retain other highly qualified personnel in the future. We have experienced, and may continue to experience, difficulty in hiring and retaining employees with appropriate qualifications. If we do not succeed in hiring and retaining employees with appropriate qualifications, our product development efforts, revenues and business could be seriously harmed.
 
Because we do not have long-term commitments from our customers, and plan purchases based on estimates of customer demand which may be inaccurate, we must contract for the manufacture of our products based on those potentially inaccurate estimates.
 
Our sales are made on the basis of purchase orders rather than long-term purchase commitments. Our customers may cancel or defer purchase orders at any time. This process requires us to make multiple demand forecast assumptions, each of which may introduce error into our estimates. If our customers or we overestimate demand, we may purchase components or have products manufactured that we may not be able to use or sell. As a result, we would have excess inventory, which would negatively affect our operating results. Conversely, if our customers or we underestimate demand or if sufficient manufacturing capacity is unavailable, we would forego revenue opportunities, lose market share and damage our customer relationships.
 
Development projects may cause us to incur substantial operating expenses without the guarantee of any associated revenue or far in advance of revenue.
 
We have development projects that consume large amounts of engineering resources far in advance of product revenue. Our work under these projects is technically challenging and places considerable demands on our limited resources, particularly on our most senior engineering talent, and may not result in revenue for twelve to eighteen months, if at all. In addition, allocating significant resources to these projects may detract from or delay the completion of other important development projects. Any of these development projects could be canceled at any time without notice. These factors could have a material and adverse effect on our long-term business and results of operations.
 
Because of our long product development process and sales cycle, we may incur substantial expenses before we earn associated revenues and may not ultimately sell as many units of our products as we forecasted.
 
We develop products based on anticipated market and customer requirements and incur substantial product development expenditures, which can include the payment of large up-front, third-party license fees and royalties, prior to generating associated revenues. Because the development of our products incorporates not only our complex and evolving technology, but also our customers’ specific requirements, a lengthy sales process is often required before potential customers begin the technical evaluation of our products. Our customers typically perform numerous tests and extensively evaluate our products before incorporating them into their systems. The time required for testing, evaluation and design of our products into a customer’s equipment can take up to six months or more. It can take an additional six months before a customer commences volume shipments of systems that incorporate our products. However, even when we achieve a design win, the customer may never ship systems incorporating our products. We cannot assure you that the time required for the testing, evaluation and design of our products by our customers would not exceed six months. Because of this lengthy development cycle, we will experience delays between the time we incur expenditures for research and development, sales and marketing, inventory levels and the time we generate revenues, if any, from these expenditures. Additionally, if actual sales
 
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volumes for a particular product are substantially less than originally forecasted, we may experience large write-offs of capitalized license fees, product masks and prepaid royalties that would negatively affect our operating results.
 
Shortages of other key components for our customers’ products could delay our ability to sell our products.
 
Shortages of components and other materials that are critical to the design and manufacture of our customers’ products could limit our sales. These components include liquid crystal display panels and other display components, analog-to-digital converters, digital receivers and video decoders. During 2000, some of our customers experienced delays in the availability of key components from other suppliers, which, in turn, caused a delay in demand for the products that we supplied to our customers.
 
Shortages of materials used in the manufacturing of our products may increase our costs or limit our revenues and impair our ability to ship our products on time.
 
From time to time, shortages of materials that are used in our products may occur. In particular, we may experience shortages of semiconductor wafers and packages. If material shortages occur, we may incur additional costs or be unable to ship our products to our customers in a timely fashion, all of which could harm our business and negatively impact our earnings.
 
Our products could become obsolete if necessary licenses of third-party technology are not available to us or are only available on terms that are not commercially viable.
 
We license technology from third parties that is incorporated into our products or product enhancements. Future products or product enhancements may require additional third-party licenses that may not be available to us or available on terms that are commercially reasonable. If we are unable to obtain any third-party license required to develop new products and product enhancements, we may have to obtain substitute technology of lower quality or performance standards or at greater cost, either of which could seriously harm the competitiveness of our products.
 
We may not be able to respond to the rapid technological changes in the markets in which we compete, or we may not be able to comply with industry standards in the future making our products less desirable or obsolete.
 
The markets in which we compete or seek to compete are subject to rapid technological change, frequent new product introductions, changing customer requirements for new products and features, and evolving industry standards. The introduction of new technologies and the emergence of new industry standards could render our products less desirable or obsolete, which could harm our business. Examples of changing industry standards include the introduction of high-definition television, or HDTV, new digital receivers and displays with resolutions that have required us to accelerate development of new products to meet these new standards.
 
Our software development tools may be incompatible with industry standards and challenging to implement, which could slow product development or cause us to lose customers and design wins.
 
Our existing products incorporate complex software tools designed to help customers bring products into production. Software development is a complex process and we are dependent on software development languages and operating systems from vendors that may compromise our
 
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ability to design software in a timely manner. Also, software development is a volatile market and new software languages are introduced to the market that may be incompatible with our existing systems and tools. New software development languages may not be compatible with our own requiring significant engineering efforts to migrate our existing systems in order to be compatible with those new languages. Existing or new software development tools could make our current products obsolete or hard to use. Software development disruptions could slow our product development or cause us to lose customers and design wins.
 
Our integrated circuits and software could contain defects, which could reduce sales of those products or result in claims against us.
 
Despite testing by both our customers and us, errors or performance problems may be found in existing or new semiconductors and software. This could result in a delay in the recognition or loss of revenues, loss of market share or failure to achieve market acceptance. These defects may cause us to incur significant warranty, support and repair costs. They could also divert the attention of our engineering personnel from our product development efforts and harm our relationships with our customers. The occurrence of these problems could result in the delay or loss of market acceptance of our semiconductors and would likely harm our business. Defects, integration issues or other performance problems in our semiconductors and software could result in financial or other damages to our customers or could damage market acceptance of our products. Our customers could also seek damages from us for their losses. A product liability claim brought against us, even if unsuccessful, would likely be time consuming and costly to defend.
 
Others may bring infringement actions against us that could be time-consuming and expensive to defend.
 
We may become subject to claims involving patents or other intellectual property rights. For example, in early 2000, we were notified by InFocus Corporation (“InFocus”) that we were infringing patents held by InFocus. In February 2000, we entered into a license agreement with InFocus granting us the right to use the technology covered by those InFocus patents. As a result, we recorded a one-time charge of $4,078 for patent settlement expense in the first quarter of 2000. Intellectual property claims could subject us to significant liability for damages and invalidate our proprietary rights. In addition, intellectual property claims may be brought against customers that incorporate our products in the design of their own products. These claims, regardless of their success or merit and regardless of whether we are named as defendants in a lawsuit, would likely be time-consuming and expensive to resolve and would divert the time and attention of management and technical personnel. Any future intellectual property litigation or claims also could force us to do one or more of the following:
 
•                  stop selling products using technology that contains the allegedly infringing intellectual property;
 
•                  attempt to obtain a license to the relevant intellectual property, which license may not be available on reasonable terms or at all;
 
•                  attempt to redesign those products that contain the allegedly infringing intellectual property; and
 
•                  pay damages for past infringement claims that are determined to be valid or which are arrived at in settlement of such litigation or threatened litigation.
 
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If we are forced to take any of the foregoing actions, we may be unable to manufacture and sell our products, which could seriously harm our business. In addition, we may not be able to develop, license or acquire non-infringing technology under reasonable terms. These developments could result in an inability to compete for customers or could adversely affect our ability to increase our earnings.
 
Our limited ability to protect our intellectual property and proprietary rights could harm our competitive position by allowing our competitors to access our proprietary technology and to introduce similar display processor products.
 
Our ability to compete effectively with other companies will depend, in part, on our ability to maintain the proprietary nature of our technology, including our semiconductor designs and software. We rely on a combination of patent, copyright, trademark and trade secret laws, as well as nondisclosure agreements and other methods to protect our proprietary technologies. We hold 9 U.S. patents and have 39 patent applications pending with the U.S. Patent and Trademark Office for protection of our significant technologies.  We cannot assure you that the degree of protection offered by patents or trade secret laws will be sufficient. Furthermore, we cannot assure you that any patents will be issued as a result of any pending applications, or that, if issued, any claims allowed will be sufficiently broad to protect our technology. In addition, it is possible that existing or future patents may be challenged, invalidated or circumvented. Competitors in both the U.S. and foreign countries, many of whom have substantially greater resources, may apply for and obtain patents that will prevent, limit or interfere with our ability to make and sell our products, or develop similar technology independently or design around our patents. Effective copyright, trademark and trade secret protection may be unavailable or limited in foreign countries. In addition, we provide the computer programming code for our software to selected customers in connection with their product development efforts, thereby increasing the risk that customers will misappropriate our proprietary software.
 
Any acquisition or equity investment we make could disrupt our business and severely harm our financial condition.
 
To date, we acquired Panstera, Inc. in January 2001, nDSP in January 2002 and Jaldi Semiconductor in September 2002. In March 2003, we announced the execution of a definitive merger agreement with Genesis Microchip, Inc.; however, the merger was terminated in August of 2003, and we incurred $8,949 of expenses related to the transaction. Additionally, in the third quarter of 2003, we made an investment of $10,000 in SMIC. We intend to continue to consider investments in or acquisitions of complementary businesses, products or technologies. In the second quarter of 2004, we raised $150,000 upon the sale of our 1.75% convertible debentures.  We may use these proceeds to fund such future acquisitions or equity investments.
 
The acquisitions of Panstera, nDSP and Jaldi contained a very high level of risk primarily because the investments were made based on in-process technological development that may not have been completed, or if completed, may not have become commercially viable.
 
These and any future acquisitions and investments could result in:
 
•                  issuance of stock that dilutes current shareholders’ percentage ownership;
 
•                  incurrence of debt;
 
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•                  assumption of liabilities;
 
•                  amortization expenses related to other intangible assets;
 
•                  impairment of goodwill; or
 
•                  large and immediate write-offs.
 
Our operation of any acquired business will also involve numerous risks, including, but not limited to:
 
•                  problems combining the purchased operations, technologies or products;
 
•                  unanticipated costs;
 
•                  diversion of management’s attention from our core business;
 
•                  adverse effects on existing business relationships with customers;
 
•                  risks associated with entering markets in which we have no or limited prior experience; and
 
•                  potential loss of key employees, particularly those of the acquired organizations.
 
We may not be able to successfully integrate businesses, products, technologies or personnel that we might acquire in the future and any failure to do so could disrupt our business and seriously harm our financial condition.
 
Goodwill represents a significant portion of our total assets.
 
As of June 30, 2004, goodwill amounted to $82,007, or approximately 19% of our total assets. Effective January 1, 2002 with the adoption of new accounting standards we are required to review goodwill for possible impairment on an annual basis or when events and circumstances arise which indicate a possible impairment. The review of goodwill for impairment may result in large write-offs of goodwill, which could have a material adverse effect on our results of operations.
 
We have incurred substantial indebtedness as a result of the sale of convertible debentures.
 
In the second quarter of 2004, we issued $150 million of 1.75% convertible debentures due 2024 in a private placement pursuant to Rule 144A and Regulation S under the Securities Act of 1933. As a result of this indebtedness, our principal obligations will increase substantially. These debt obligations could materially and adversely affect our ability to obtain debt financing for working capital, acquisitions or other purposes, limit our flexibility in planning for or reacting to changes in our business, reduce funds available for use in our operations 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 will be subject to financial, business and other factors affecting our operations, many of which are beyond our control.
 
Additionally, we have agreed to file a shelf registration statement with the Securities and Exchange Commission covering resales of the debentures and the common stock issuable upon conversion of the debentures.  If we fail to file the registration statement as required, or if the
 
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registration statement is not declared effective as required, we must pay liquidated damages in an amount equal to 0.25% or 0.50% per annum of the principal amount of the debentures.
 
Failure to manage our expansion effectively could adversely affect our ability to increase our business and our results of operations.
 
Our ability to successfully market and sell our products in a rapidly evolving market requires effective planning and management processes. We continue to increase the scope of our operations domestically and internationally and have increased our headcount substantially. Through internal growth as well as acquisition, our headcount grew from 176 employees at the end of 2001 to 290 at June 30, 2004. Our past growth, and our expected future growth, places a significant strain on our management systems and resources including our financial and managerial controls, reporting systems and procedures. To manage our growth effectively, we must implement and improve operational and financial systems, train and manage our employee base and attract and retain qualified personnel with relevant experience. We must also manage multiple relationships with customers, business partners, contract manufacturers, suppliers and other third parties. Moreover, we will spend substantial amounts of time and money in connection with our rapid growth and may have unexpected costs. Our systems, procedures or controls may not be adequate to support our operations and we may not be able to expand quickly enough to exploit potential market opportunities. While we have not, to date, suffered any significant adverse consequences due to our growth, if we do not continue to manage growth effectively our operating expenses could increase more rapidly than our revenue causing decreased profitability.
 
Risks Related to our Industry
 
Failure of consumer demand for advanced displays and other digital display technologies to increase would impede our growth and adversely affect our business.
 
Our product development strategies anticipate that consumer demand for flat panel displays and other emerging display technologies will increase in the future. The success of our products is dependent on increased demand for these display technologies. The potential size of the market for products incorporating these display technologies and the timing of its development are uncertain and will depend upon a number of factors, all of which are beyond our control. In order for the market for many of our products to grow, advanced display products must be widely available and affordable to consumers. In the past, the supply of advanced display products has been cyclical. We expect this pattern to continue. Under-capacity in the advanced display market may limit our ability to increase our revenues because our customers may limit their purchases of our products if they cannot obtain sufficient supplies of LCD panels or other advanced display components. In addition, advanced display prices may remain high because of limited supply, and consumer demand may not grow.
 
If products incorporating our semiconductors are not compatible with computer display protocols, video standards and other devices, the market for our products will be reduced and our business prospects could be significantly limited.
 
Our products are incorporated into our customers’ products, which have different parts and specifications and utilize multiple protocols that allow them to be compatible with specific computers, video standards and other devices. If our customers’ products are not compatible with these protocols and standards, consumers will return these products, or consumers will not purchase these products, and the markets for our customers’ products could be significantly reduced. As a result, a portion of our market would be eliminated, and our business would be harmed.
 
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Intense competition in our markets may reduce sales of our products, reduce our market share, decrease our gross profit and result in large losses.
 
Rapid technological change, evolving industry standards, compressed product life cycles and declining average selling prices are characteristics of our market and could have a material adverse effect on our business, financial condition and results of operations. As the overall price of advanced flat panel display screens continues to fall, we may be required to offer our products to manufacturers at discounted prices due to increased price competition. At the same time, new, alternative display processing technologies and industry standards may emerge that directly compete with technologies that we offer. We may be required to increase our investment in research and development at the same time that product prices are falling. In addition, even after making this investment, we cannot assure you that our technologies will be superior to those of our competitors or that our products will achieve market acceptance, whether for performance or price reasons. Failure to effectively respond to these trends could reduce the demand for our products.
 
We compete with specialized and diversified electronics and semiconductor companies that offer display processors or scaling components. Some of these include Genesis Microchip, I-Chips, ITE, Macronix, Mediatek, Media Reality Technologies, Micronas, MStar Semiconductor, Inc., Oplus, Realtek, Silicon Image, Silicon Optix, STMicroelectronics, Techwell, Topro, Trident, Trumpion, Weltrend, Zoran and other companies. Potential competitors may include diversified semiconductor manufacturers and the semiconductor divisions or affiliates of some of our customers, including ATI, Intel, Koninlijke Philips Electronics, LG Electronics, Matsushita Electric Industrial, Mitsubishi, National Semiconductor, NEC, nVidia, Samsung Electronics, Sanyo Electric Company, Sharp Corporation, Sony Corporation, Texas Instruments and Toshiba Corporation. In addition, start-up companies may seek to compete in our markets. Many of our competitors have longer operating histories and greater resources to support development and marketing efforts. Some of our competitors may operate their own fabrication facilities. These competitors may be able to react more quickly and devote more resources to efforts that compete directly with our own. In the future, our current or potential customers may also develop their own proprietary display processors and become our competitors. Our competitors may develop advanced technologies enabling them to offer more cost-effective and higher quality semiconductors to our customers than those offered by us. Increased competition could harm our business, financial condition and results of operations by, for example, increasing pressure on our profit margin or causing us to lose sales opportunities. We cannot assure you that we can compete successfully against current or potential competitors.
 
The cyclical nature of the semiconductor industry may lead to significant variances in the demand for our products and could harm our operations.
 
In the past, the semiconductor industry has been characterized by significant downturns and wide fluctuations in supply and demand. Also, during this time, the industry has experienced significant fluctuations in anticipation of changes in general economic conditions, including economic conditions in Asia and North America. The cyclical nature of the semiconductor industry has led to significant variances in product demand and production capacity. It has also accelerated erosion of average selling prices per unit. We may experience periodic fluctuations in our future financial results because of changes in industry-wide conditions.
 
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Other Risks
 
The anti-takeover provisions of Oregon law and in our articles of incorporation could adversely affect the rights of the holders of our common stock by preventing a sale or takeover of us at a price or prices favorable to the holders of our common stock.
 
Provisions of our articles of incorporation and bylaws and provisions of Oregon law may have the effect of delaying or preventing a merger or acquisition of us, making a merger or acquisition of us less desirable to a potential acquirer or preventing a change in our management, even if the shareholders consider the merger or acquisition favorable or if doing so would benefit our shareholders. In addition, these provisions could limit the price that investors would be willing to pay in the future for shares of our common stock. The following are examples of such provisions in our articles of incorporation or bylaws:
 
•                  our board of directors is authorized, without prior shareholder approval, to create and issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to acquire us or change our control, commonly referred to as “blank check” preferred stock;
 
•                  members of our board of directors can only be removed for cause;
 
•                  the board of directors may alter our bylaws without obtaining shareholder approval; and
 
•                  shareholders are required to provide advance notice for nominations for election to the board of directors or for proposing matters to be acted upon at a shareholder meeting.
 
Our principal shareholders have significant voting power and may take actions that may make it more difficult to sell our shares at a premium to take over candidates.
 
Our executive officers, directors and other principal shareholders, in the aggregate, beneficially own 12,501,903 shares or approximately 27% of our outstanding common stock as of July 31, 2004. These shareholders currently have, and will continue to have, significant influence with respect to the election of our directors and approval or disapproval of our significant corporate actions. This influence over our affairs might be adverse to the interest of our other shareholders. In addition, the voting power of these shareholders could have the effect of delaying or preventing a change in control of our business or otherwise discouraging a potential acquirer from attempting to obtain control of us, which could prevent our other shareholders from realizing a premium over the market price for their common stock.
 
The price of our common stock has and may continue to fluctuate substantially.
 
Investors may not be able to sell shares of our common stock at or above the price they paid due to a number of factors, including:
 
•                  actual or anticipated fluctuations in our operating results;
 
•                  changes in expectations as to our future financial performance;
 
•                  changes in financial estimates of securities analysts;
 
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•                  announcements by us or our competitors of technological innovations, design wins, contracts, standards or acquisitions;
 
•                  the operating and stock price performance of other comparable companies;
 
•                  changes in market valuations of other technology companies; and
 
•                  inconsistent trading volume levels of our common stock.
 
In particular, the stock prices of technology companies similar to us have been highly volatile. These fluctuations often have been unrelated or disproportionate to the operating performance of those companies. Market fluctuations as well as general economic, political and market conditions including recessions, interest rate changes or international currency fluctuations, may negatively impact the market price of our common stock. Therefore, the price of our common stock may decline, and the value of your investment may be reduced regardless of our performance.
 
We may be unable to meet our future capital requirements, which would limit our ability to grow.
 
We believe our current cash balances will be sufficient to meet our capital requirements for the next 12 months. However, we may need, or could elect, to seek additional funding prior to that time. To the extent that currently available funds are insufficient to fund our future activities, we may need to raise additional funds through public or private equity or debt financing. Additional funds may not be available on terms favorable to us or our shareholders. Further, if we issue equity securities, our shareholders may experience additional dilution or the new equity securities may have rights, preferences or privileges senior to those of our common stock. If we cannot raise funds on acceptable terms, we may not be able to develop or enhance our products, take advantage of future opportunities or respond to competitive pressures or unanticipated requirements.
 
Item 3.                                                          Quantitativeand Qualitative Disclosures About Market Risk
 
(In thousands, except percentages)
 
Our primary market risk exposure is the impact of interest rate fluctuations on interest income earned on our investment portfolio.  The risks associated with market, liquidity and principal are mitigated by investing in high-credit quality securities and limiting concentrations of issuers and maturity dates.  The carrying value of our marketable securities approximates their fair value at June 30, 2004 and December 31, 2003.  Derivative financial instruments are not part of our investment portfolio.
 
As of June 30, 2004, we had convertible subordinated notes of $150,000 outstanding with a fixed interest rate of 1.75%.  Interest rate changes affect the fair value of these notes, but do not affect earnings or cash flow.
 
All of our sales are denominated in U.S. dollars and as a result, we have relatively little exposure to foreign currency exchange risk with respect to any of our sales.  We have employees located in offices in Canada, China, Japan and Taiwan and as a result a portion of our operating expenses are denominated in foreign currencies.  Accordingly, our operating results are affected by changes in the exchange rate between the U.S. dollar and those currencies.  Any future strengthening of those currencies against the U.S. dollar could negatively impact our operating results by increasing our operating expenses as measured in U.S. dollars.  We do not currently
 
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hedge against foreign currency rate fluctuations.  The effect of an immediate 10% change in exchange rates would not have a material impact on our future operating results or financial position.
 
Item 4.                                                          Controls and Procedures
 
(a)          Evaluation of Disclosure Controls and Procedures.  Our management, with the participation of our Chief Executive Officer (“CEO”) and Chief Financial Officer (“CFO”), carried out an evaluation of the effectiveness of the Company’s disclosure controls and procedures as of the end of the period covered by this report pursuant to Securities Exchange Act Rule 13a-15(e) and 15d-15(e).  Based upon this evaluation, our CEO and CFO concluded that our controls and procedures are effective in timely alerting them to material information regarding the Company (including its consolidated subsidiaries) required to be included in our periodic SEC filings.
 
(b)         Changes in Internal Controls.  There have been no significant changes in our internal controls over financial reporting that could significantly affect those controls subsequent to the date of the evaluation, and no significant deficiencies or material weaknesses were identified which required corrective action.
 
While we have not identified any material weaknesses in internal controls, in the course of preparing for our Sarbanes-Oxley Section 404 assertion as of December 31, 2004, we have taken measures to improve the effectiveness of our internal controls.  Among others, we have taken and are taking the following measures:
 
1.               We have formalized and documented review policies and procedures for accounting transactions and financial reporting.
 
2.               We have added staff in several areas, including general ledger accounting, accounts receivable, payroll, shipping and receiving and customer service.  The additional staff has helped strengthen our segregation of duties controls.
 
PART II - OTHER INFORMATION
 
Item 4.                                                          Submission of Matters to a Vote of Security Holders
 
Pixelworks 2004 Annual Meeting of Shareholders was held on May 25, 2004 to:
 
1.               Elect five directors to serve for the following year or until their successors are elected;
 
2.               Amend Pixelworks’ Articles of Incorporation to provide that the Board of Directors shall be classified only upon the number of directors being set at eight or more;
 
3.               Amend Pixelworks’ 1997 Stock Incentive Plan to increase the number of shares available for grant under the plan by 1,500,000 shares to bring the total shares reserved for issuance under the plan to 18,340,116;
 
4.               Approve certain amendments to Pixelworks’ Employee Stock Purchase Plan to provide an absolute ceiling for the automatic increase in the number of shares authorized for issuance under the plan; and
 
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5.               Transact any other business that properly came before the meeting.
 
The following nominees were elected to serve on the board of directors by the votes and the terms indicated below:
 
Nominee	 	For	 	Withheld	 	Term
Ending	 	
 	 	 	 	 	 	 	 	
Allen H. Alley	 	38,526,817	 	2,501,544	 	2005	 	
Oliver D. Curme	 	37,287,490	 	3,740,871	 	2005	 	
C. Scott Gibson	 	37,866,826	 	3,161,535	 	2005	 	
Frank Gill	 	37,233,251	 	3,795,110	 	2005	 	
Steven J. Sharp	 	40,813,952	 	214,409	 	2005	 	
 
The proposal to amend Pixelworks’ Articles of Incorporation was approved and received the following votes:
 
 	 	Votes	 	
 	 	 	 	
For	 	29,874,467	 	
Against	 	2,029,675	 	
Abstain	 	46,382	 	
 
The proposal to amend Pixelworks’ 1997 Stock Incentive Plan was approved and received the following votes:
 
 	 	Votes	 	
 	 	 	 	
For	 	23,379,714	 	
Against	 	8,525,704	 	
Abstain	 	45,106	 	
 
The proposal to amend Pixelworks’ Employee Stock Purchase Plan was approved and received the following votes:
 
 	 	Votes	 	
 	 	 	 	
For	 	18,044,867	 	
Against	 	13,862,987	 	
Abstain	 	42,670	 	
 
There were no other matters that properly came before the meeting that were voted upon.
 
Item 6:                                                         Exhibits and Reports on Form 8-K
 
(a)           Exhibits
 
3.1                                 Sixth Amended and Restated Articles of Incorporation of Pixelworks, Inc., As Amended.
 
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4.1                                 Indenture dated May 18, 2004 between Pixelworks, Inc. and Wells Fargo Bank, National Association.
 
4.2                                 Form of 1.75% Convertible Subordinated Debentures due 2024 dated May 18, 2004.
 
4.3                                 Registration Rights Agreement, dated May 18, 2004 among Pixelworks, Inc., Citigroup Global Markets Inc. and D.A. Davidson & Co.
 
4.4                                 Purchase Agreement, dated May 12, 2004 among Pixelworks, Inc. and Citigroup Global Markets Inc.
 
10.1                           First Amendment of Lease between Southcenter III & IV Investors LLC and Pixelworks, Inc.
 
10.2                           Pixelworks, Inc. 1997 Stock Incentive Plan, As Amended.
 
10.3                           Pixelworks, Inc. 2000 Employee Stock Purchase Plan, As Amended.
 
31.1                           Certification of Chief Executive Officer.
 
31.2                           Certification of Chief Financial Officer.
 
32.1                           Certification of Chief Executive Officer.
 
32.2                           Certification of Chief Financial Officer.
 
(b)           Reports on Form 8-K
 
Reports Furnished
 
On April 19, 2004, we furnished a report on Form 8-K to report under Item 7 and 12 that on April 19, 2004 we issued a press release announcing our financial results for the quarter ending March 31, 2004.
 
On April 26, 2004, we furnished a report on Form 8-K to provide under Item 9 the Company’s Letter to Shareholders, which accompanies the Annual Report for the year ended December 31, 2003.
 
Reports Filed
 
On May 11, 2004, we filed a report on Form 8-K to report under Item 5 and 7 that on May 11, 2004 we issued a press release announcing our intention to offer $125 million of Convertible Subordinated Debentures, subject to market and other conditions.
 
On May 13, 2004, we filed a report on Form 8-K to report under Item 5 and 7 that on May 12, 2004 we issued a press release announcing the pricing of an aggregate of $125 million of Convertible Subordinated Debentures due 2024, to be sold in a private offering under Rule 144A (plus up to an additional $25 million aggregate principal amount of such debentures if and to the extent that the initial purchasers exercise a purchase option), subject to market and other conditions.
 
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On May 18, 2004, we filed a report on Form 8-K to report under Item 5 and 7 that on May 18, 2004 we issued a press release announcing the closing of the sale of an aggregate of $125 million of 1.75% Convertible Subordinated Debentures due 2024.
 
On June 4, 2004, we filed a report on Form 8-K to report under Item 5 and 7 that on June 4, 2004 we issued a press release announcing the closing of the sale of an additional $25 million of 1.75% Convertible Subordinated Debentures due 2024.
 
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SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 	 	 	PIXELWORKS, INC.	

Dated:  August 9, 2004	 	 	/s/ Jeffrey B. Bouchard	
 	 	 	Jeffrey B. Bouchard	
 	 	 	Vice President, Finance and	
 	 	 	Chief Financial Officer	
 
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Exhibit 3.1
 
SIXTH AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
PIXELWORKS, INC.
 
Pursuant to the Oregon Business Corporation Act (ORS Chapter 60), Pixelworks, Inc. hereby adopts the following Sixth Amended and Restated Articles of Incorporation, which shall supersede the heretofore existing Fifth Restated Articles of Incorporation and all previous amendment and restatements thereof.
 
ARTICLE 1.
NAME.
 
The name of the Corporation is Pixelworks, Inc.
 
ARTICLE 2.
SHARES AND RIGHTS THEREOF GENERALLY.
 
2.1          Authorized Stock.  The aggregate number of shares which the corporation shall have authority to issue is 250,000,000 shares of common stock with a par value of $0.001 per share (“Common Stock”) , and 50,000,000 shares of preferred stock with a par value of $0.001 per share (Preferred Stock”).
 
2.2          Rights of Common Stock.  The shares of common stock have unlimited voting rights and are entitled to receive the net assets of the Corporation on dissolution, subject to rights of the Preferred Stock.
 
2.3          Authority to Designate Series Preferred.  The Board of Directors is hereby authorized to fix or alter the rights, preferences, privileges and restrictions granted to or imposed upon additional series of Preferred Stock, and the number of shares constituting any such series and the designation thereof, or of any of them.  Subject to compliance with applicable protective voting rights or consent rights which have been or may be granted to the Preferred Stock or any series thereof herein, by law, or in Articles of Amendment adopted by the Board of Directors (“Protective Provisions”), but notwithstanding any other rights of the Preferred Stock or any series thereof, the rights, privileges, preferences and restrictions of any such additional series may be subordinated to, made pari passu with (including, without limitation, inclusion in provisions with respect to liquidation and acquisition preferences, redemption and/or approval of matters by vote or written consent), or made senior to any of those of any present or future class of series of Preferred or Common Stock.  Subject to compliance with applicable Protective Provisions, the Board of Directors is also authorized to increase or decrease the number of shares of any series, prior or subsequent to the issue of that series, but not below the number of shares of such series then outstanding.  In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series.
 
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ARTICLE 3.
DIRECTORS.
 
3.1          Number of Directors.  The number of directors of the Corporation shall be not less than three nor more than twelve, and within such limits, the exact number shall be fixed and increased or decreased from time to time by resolution of the Board of Directors.
 
3.2          Election of Directors.  If the number of directors is fixed by the Board of Directors at six or more, the directors shall be divided into three classes designated Class I, Class II and Class III, each class to be as nearly equal in number as possible.  At the next annual meeting of shareholders following that designation (“First Meeting”), directors of all three classes shall be elected.  The term of office of Class I directors shall expire at the first annual meeting of shareholders following their election.  The terms of Class II directors shall expire at the second annual meeting of shareholders following their election.  The terms of the Class III directors shall expire at the third annual meeting of shareholders following their election.  At each annual meeting of shareholders after the First Meeting, each class of directors elected to succeed those directors whose terms expire shall be elected to serve for three-year terms and until their successors are elected and qualified, so that the term of one class of directors will expire each year.  When the number of directors is changed within the limits provided herein, any newly created directorships, or any decrease in directorships, shall be so apportioned among the classes as to make all classes as nearly equal as possible, provided that no decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent directors.
 
3.3          Removal.  All or any number of the directors of the Corporation may be removed only for cause and at a meeting of shareholders called expressly for that purpose, by the vote of 75 percent of the votes then entitled to be cast for the election of directors.  Cause for removal shall be deemed to exist only if the director whose removal is proposed has engaged in criminal conduct or has engaged in fraudulent or dishonest conduct or gross abuse of authority or discretion with respect to the Corporation. At any meeting of shareholders at which one or more directors are removed, a majority of votes then entitled to be cast for the election of directors may fill any vacancy created by such removal.  If any vacancy created by removal of a director is not filled by the shareholders at the meeting at which the removal is effected, such vacancy may be filled by a majority vote of the remaining directors.
 
3.4          Amendment of Article. The provisions of this Article3 may not be amended, altered, changed or repealed in any respect unless such action is approved by the affirmative vote of not less than 75 percent of the votes then entitled to be cast for election of directors.
 
ARTICLE 4.
EXCLUSION OF DIRECTOR LIABILITY.
 
No director of the Corporation shall be personally liable to the Corporation or its shareholders for monetary damages for conduct as a director; provided that this Article4 shall not eliminate the liability of a director for any act or omission for which such elimination of liability is not permitted under the Oregon Business Corporation Act.  No amendment to the Oregon Business Corporation Act that further limits the acts or omissions for which elimination of
 
2

 
liability is permitted shall affect the liability of a director for any act or omission that occurs prior to the effective date of such amendment.
 
ARTICLE 5.
INDEMNIFICATION OF DIRECTORS, OFFICERS, & FIDUCIARIES.
 
5.1          Indemnification.  The Corporation shall indemnify to the fullest extent not prohibited by law any person who was or is a party or is threatened to be made a party to any Proceeding (as defined below) against all expenses (including attorney fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by the person in connection with such Proceeding.
 
5.2          Advancement of Expenses.  Expenses incurred by a director or officer of the Corporation in defending a Proceeding shall in all cases be paid by the Corporation in advance of the final disposition of such Proceeding at the written request of such person, if the person:
 
5.2.1        furnishes the Corporation a written affirmation of the person’s good faith belief that such person has met the standard of conduct described in the Oregon Business Corporation Act or is entitled to be indemnified by the Corporation under any other indemnification rights granted by the Corporation to such person; and
 
5.2.2        furnishes the Corporation a written undertaking to repay such advance to the extent it is ultimately determined by a court that such person is not entitled to be indemnified by the Corporation under this Article 5 or under any other indemnification rights granted by the Corporation to such person.
 
Such advances shall be made without regard to the person’s ability to repay such advances and without regard to the person’s ultimate entitlement to indemnification under this Article 5 or otherwise.
 
5.3          Definition of Proceeding.  The term “Proceeding” shall include any threatened, pending, or completed action, suit, or proceeding, whether brought in the right of the corporation or otherwise and whether of a civil, criminal, administrative, or investigative nature, in which a person may be or may have been involved as a party or otherwise by reason of the fact that the person is or was a director or officer of the corporation or a fiduciary within the meaning of the Employee Retirement Income Security Act of 1974 with respect to any employee benefit plan of the corporation, or is or was serving at the request of the corporation as a director, officer, or fiduciary of an employee benefit plan of another corporation, partnership, joint venture, trust, or other enterprise, whether or not serving in such capacity at the time any liability or expense is incurred for which indemnification or advancement of expenses can be provided under this Article 5.
 
5.4          Non-Exclusivity and Continuity of Rights.  This Article 5:  (i) shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any statute, agreement, general or specific action of the board of directors, vote of shareholders or otherwise, both as to action in the official capacity of the person indemnified and as to action in
 
3

 
another capacity while holding office, (ii)shall continue as to a person who has ceased to be a director or officer, (iii)shall inure to the benefit of the heirs, executors, and administrators of such person, and (iv)shall extend to all claims for indemnification or advancement of expenses made after the adoption of this Article 5.
 
5.5          Amendments.  Any repeal of this Article 5 shall only be prospective and no repeal or modification hereof shall adversely affect the rights under this Article 5 in effect at the time of the alleged occurrence of any action or omission to act that is the cause of any Proceeding.
 
ARTICLE 6.
SHAREHOLDER APPROVAL OF CERTAIN CORPORATE ACTIONS.
 
No agreement of merger or consolidation of this corporation which requires shareholder approval under the Oregon Business Corporation Act shall be approved or become effective unless the holders of not less than sixty-seven percent (67%) of the outstanding shares of the corporation entitled to vote thereon shall vote for the adoption of the agreement.  This corporation shall not sell, lease or exchange all or substantially all of its property and assets unless the holders of not less than sixty-seven percent (67%) of the outstanding shares of the corporation entitled to vote thereon shall vote for such sale, lease or exchange.  Dissolution or liquidation of the corporation shall require the prior approval of holders of not less than sixty-seven percent (67%) of the outstanding shares of the corporation entitled to vote thereon.
 
4

 
EXHIBIT A
 
First Amendment to Sixth Amended and Restated Articles of Incorporation
of
Pixelworks, Inc.

Article 2 of the Sixth Amended and Restated Articles of Incorporation (the “Restated Articles”) of Pixelworks, Inc. is hereby amended by the addition of the following Section 2.4:
 
2.4          Preferred Stock Designation.  One series of Preferred Stock shall be designated “Special Voting Share Series Preferred Stock,” and shall consist of one (1) share (the “Special Voting Share”).  Special Voting Share Series Preferred Stock has an Issue Price of $0.001 per share.  The relative rights, preferences and limitations of the Special Voting Share Series Preferred Stock are as follows:
 
a.             Dividends. Neither the holder nor, if different, the owner of the Special Voting Share shall be entitled to receive dividends in its capacity as holder or owner thereof.
 
b.             Voting Right.  The holder of record of the Special Voting Share shall be entitled to all of the voting rights, including the right to vote in person or by proxy, of the Special Voting Share on any matters, questions, proposals or propositions whatsoever that may properly come before the stockholders of the Corporation at a meeting of the Corporation or in connection with a consent of the Corporation.
 
c.             Liquidation Preference.  In the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, the holder of the Special Voting Share shall be entitled to be paid out of the assets of the Corporation available for distribution to the stockholders, an amount equal to $0.001 before any payment shall be made to the holders of Common Stock or any other class or series of stock ranking on liquidation junior to the Special Voting Share as to distribution of assets upon liquidation, dissolution or winding-up.
 
d.             Ranking.  The Special Voting Share shall, with respect to rights on liquidation, dissolution and winding up, rank (i) pari passu with the Common Stock and (ii) junior to any other class or series of capital stock of the Corporation.
 
e.             Redemption.  The Special Voting Share shall not be subject to redemption except that at such time as no exchangeable shares (“Exchangeable Shares”) of Jaldi Semiconductor Corp. (“Jaldi”) (other than Exchangeable Shares owned by the Corporation and its affiliates) shall be outstanding and no shares of stock, debt, options or other agreements which could give rise to the issuance of any Exchangeable Shares to any person (other than the Corporation and its affiliates) shall exist, the Special Voting Share shall automatically be redeemed and cancelled, for an amount equal to $0.001 due and payable upon such redemption.  Upon any such redemption or other purchase or acquisition of the Special Voting Share by the Corporation, the Special Voting Share shall be deemed retired and cancelled and may not be reissued.

 
f.              Other Provisions.  Pursuant to the terms of an agreement (the “Voting and Share Trust Agreement”) to be entered into between the Corporation, Pixelworks Nova Scotia Company, Jaldi and CIBC Mellon Trust Company (the “Trustee”), as such agreement may be amended, modified or supplemented from time to time (the “Trust Agreement”):
 
(A)          during the term of the Trust Agreement, the Corporation may not, without the consent of the holders of the Exchangeable Shares, issue any other additional shares of the same series as the Special Voting Shares Series Preferred Stock;
 
(B)           with respect to all meetings of stockholders of the Corporation at which holders of the Corporation’s Common Stock are entitled to vote (each a “Meeting”) and with respect to any written consents, to the extent permitted by the Articles and by-laws of the Corporation, sought by the Corporation from its stockholders, including the holders of Common Stock (each a “ Consent”), the Special Voting Share shall vote together with the Common Stock as a single class and subject to (C) shall have the identical voting rights to those of the Common Stock;
 
(C)           the Special Voting Share entitles the holder of record to a number of votes in respect of a Meeting or in respect of a Consent equal to the number of Exchangeable Shares (as defined by the Trust Agreement) outstanding on the record date for determining stockholders entitled to vote at the applicable Meeting or in connection with the applicable Consent, from time to time (other than Exchangeable Shares held by the Corporation and its affiliates);
 
(D)          the Trustee shall exercise the votes held by the Special Voting Share pursuant to and in accordance with the Trust Agreement;
 
(E)           the voting rights attached to the Special Voting Share shall terminate pursuant to and in accordance with the Trust Agreement; and
 
(F)           the powers, designations and preferences, participating, optional and other special rights, and the qualifications limitations and restrictions, of such Special Voting Share shall be as otherwise provided in the Trust Agreement.

 
EXHIBIT B
 
Second Amendment to Sixth Amended and Restated Articles of Incorporation
of
Pixelworks, Inc.
 
Section 3.2 of the Sixth Amended and Restated Articles of Incorporation, as amended (the “Restated Articles”) of Pixelworks, Inc. is hereby replaced in its entirety by the following Section 3.2:
 
3.2 NUMBER AND QUALIFICATION. The number of directors of the Corporation shall be not less than three nor more than twelve, and within such limits, the exact number shall be fixed and increased or decreased from time to time by resolution of the Board of Directors. If the number of directors is fixed by the Board of Directors at seven or less, the directors shall hold office until the next Annual Meeting of shareholders and until their successors have been elected and qualified. If the number of directors is fixed by the Board of Directors at eight or more, the directors shall be divided into three classes designated Class I, Class II and Class III, each class to be as nearly equal in number as possible. At the next Annual Meeting of shareholders following that designation (“First Meeting”), directors of all three classes shall be elected. The term of office of Class I directors shall expire at the first Annual Meeting of shareholders following their election. The terms of Class II directors shall expire at the second Annual Meeting of shareholders following their election. The terms of the Class III directors shall expire at the third Annual Meeting of shareholders following their election. At each Annual Meeting of shareholders after the First Meeting, each class of directors elected to succeed those directors whose terms expire shall be elected to serve for three-year terms and until their successors are elected and qualified, so that the term of one class of directors will expire each year. When the number of directors is changed within the limits provided herein, any newly created directorships, or any decrease in directorships, shall be so apportioned among the classes as to make all classes as nearly equal as possible, provided that no decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent directors. Directors need not be residents of the State of Oregon or shareholders of the Corporation.

Exhibit 4.1
 
Execution Version

PIXELWORKS, INC.
 
as Issuer
 
and
 
WELLS FARGO BANK, NATIONAL ASSOCIATION
 
as Trustee
 
INDENTURE
 
Dated as of May 18, 2004
 
$125,000,000
 
1.75% CONVERTIBLE SUBORDINATED DEBENTURES DUE 2024

 
CROSS-REFERENCE TABLE
 
TIA
Section	 	Indenture
Section	
310(a)(1)	 	5.11	
      (a)(2)	 	5.11	
      (a)(3)	 	n/a	
      (a)(4)	 	n/a	
      (a)(5)	 	5.11	
      (b)	 	5.3;5.11	
      (c)	 	n/a	
311(a)	 	5.12	
      (b)	 	5.12	
      (c)	 	n/a	
312(a)	 	2.10	
      (b)	 	14.3	
      (c)	 	14.3	
313(a)	 	5.7	
      (b)(1)	 	n/a	
      (b)(2)	 	5.7	
      (c)	 	5.7; 14.2	
      (d)	 	5.7	
314(a)(1),(2),(3)	 	9.6; 14.6	
      (a)(4)	 	9.6; 9.7; 14.6	
      (b)	 	n/a	
      (c)(1)	 	14.5	
      (c)(2)	 	14.5	
      (c)(3)	 	n/a	
      (d)	 	n/a	
      (e)	 	14.6	
      (f)	 	n/a	
315(a)	 	5.1(a)	
      (b)	 	5.6; 14.2	
      (c)	 	5.1(b)	
      (d)	 	5.1(c)	
      (e)	 	4.14	
316(a)(last sentence)	 	2.13	
      (a)(l)(A)	 	4.5	
      (a)(1)(B)	 	4.4	
      (a)(2)	 	n/a	
      (b)	 	4.7	
      (c)	 	7.4	
317(a)(1)	 	4.8	
      (a)(2)	 	4.9	
      (b)	 	2.5	
318(a)	 	14.1	
      (b)	 	n/a	
      (c)	 	14.1	

“n/a” means not applicable.
 
This Cross-Reference Table shall not, for any purpose, be deemed to be a part of the Indenture.

 
TABLE OF CONTENTS
 
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE	 	
 	 	
Section 1.01.	Definitions	 	
Section 1.02.	Incorporation by Reference of Trust Indenture Act	 	
Section 1.03.	Rules of Construction	 	
 	 	 	
ARTICLE 2
THE SECURITIES	 	
 	 	
Section 2.01.	Title and Terms	 	
Section 2.02.	Form of Securities	 	
Section 2.03.	Legends	 	
Section 2.04.	Execution, Authentication, Delivery and Dating	 	
Section 2.05.	Registrar and Paying Agent	 	
Section 2.06.	Paying Agent to Hold Assets in Trust	 	
Section 2.07.	General Provisions Relating to Transfer and Exchange	 	
Section 2.08.	Book-Entry Provisions for the Global Securities	 	
Section 2.09.	Special Transfer Provisions	 	
Section 2.10.	Holder Lists	 	
Section 2.11.	Persons Deemed Owners	 	
Section 2.12.	Mutilated, Destroyed, Lost or Stolen Securities	 	
Section 2.13.	Treasury Securities	 	
Section 2.14.	Temporary Securities	 	
Section 2.15.	Cancellation	 	
Section 2.16.	CUSIP Numbers	 	
Section 2.17.	Defaulted Interest	 	
Section 2.18.	Rule 144A and Regulation S	 	
 	 	 	
ARTICLE 3
SATISFACTION AND DISCHARGE	 	
 	 	 	
Section 3.01.	Satisfaction and Discharge of Indenture	 	
Section 3.02.	Deposited Monies to Be Held in Trust	 	
Section 3.03.	Return of Unclaimed Monies	 	
 	 	 	
ARTICLE 4
DEFAULTS AND REMEDIES	 	
 	 	 	
Section 4.01.	Events of Default	 	
Section 4.02.	Acceleration of Maturity; Rescission and Annulment	 	
Section 4.03.	Other Remedies	 	
Section 4.04.	Waiver of Past Defaults	 	
Section 4.05.	Control by Majority	 	
Section 4.06.	Limitation on Suit	 	
Section 4.07.	Unconditional Rights of Holders to Receive Payment and to Convert	 	
Section 4.08.	Collection of Indebtedness and Suits for Enforcement by the Trustee	 	
Section 4.09.	Trustee May File Proofs of Claim	 	
Section 4.10.	Restoration of Rights and Remedies	 	
Section 4.11.	Rights and Remedies	 	
Section 4.12.	Delay or Omission Not Waiver	 	
Section 4.13.	Application of Money Collected	 	
Section 4.14.	Undertaking for Costs	 	
Section 4.15.	Waiver of Stay or Extension Laws	 	
 
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ARTICLE 5
THE TRUSTEE	 	
 	 	
Section 5.01.	Certain Duties and Responsibilities	 	
Section 5.02.	Certain Rights of Trustee	 	
Section 5.03.	Individual Rights of Trustee	 	
Section 5.04.	Money Held in Trust	 	
Section 5.05.	Trustee’s Disclaimer	 	
Section 5.06.	Notice of Defaults	 	
Section 5.07.	Reports by Trustee to Holders	 	
Section 5.08.	Compensation and Indemnification	 	
Section 5.09.	Replacement of Trustee	 	
Section 5.10.	Successor Trustee by Merger, Etc	 	
Section 5.11.	Corporate Trustee Required; Eligibility	 	
Section 5.12.	Collection of Claims Against the Company	 	
 	 	 	
ARTICLE 6
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE	 	
 	 	 	
Section 6.01.	Company May Consolidate, Etc., Only on Certain Terms	 	
Section 6.02.	Successor Substituted	 	
 	 	 	
ARTICLE 7
AMENDMENTS, SUPPLEMENTS AND WAIVERS	 	
 	 	 	
Section 7.01.	Without Consent of Holders of Securities	 	
Section 7.02.	With Consent of Holders of Securities	 	
Section 7.03.	Compliance with Trust Indenture Act	 	
Section 7.04.	Revocation of Consents and Effect of Consents or Votes	 	
Section 7.05.	Notation on or Exchange of Securities	 	
Section 7.06.	Trustee to Sign Amendment, Etc	 	
 	 	 	
ARTICLE 8
MEETING OF HOLDERS OF SECURITIES	 	
 	 	 	
Section 8.01.	Purposes for Which Meetings May Be Called	 	
Section 8.02.	Call Notice and Place of Meetings	 	
Section 8.03.	Persons Entitled to Vote at Meetings	 	
Section 8.04.	Quorum; Action	 	
Section 8.05.	Determination of Voting Rights; Conduct and Adjournment of Meetings	 	
Section 8.06.	Counting Votes and Recording Action of Meetings	 	
 	 	 	
ARTICLE 9
COVENANTS	 	
 	 	 	
Section 9.01.	Payment of Principal and Interest	 	
Section 9.02.	Maintenance of Offices or Agencies	 	
Section 9.03.	Corporate Existence	 	
Section 9.04.	Reports	 	
Section 9.05.	Compliance Certificate	 	
Section 9.06.	Liquidated Damages	 	
 
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ARTICLE 10
REDEMPTION OF SECURITIES	 	
Section 10.01.	Optional Redemption	 	
Section 10.02.	Notice to Trustee	 	
Section 10.03.	Selection of Securities to be Redeemed	 	
Section 10.04.	Notice of Redemption	 	
Section 10.05.	Effect of Notice of Redemption	 	
Section 10.06.	Deposit of Redemption Price	 	
Section 10.07.	Securities Redeemed in Part	 	
Section 10.08.	Conversion Arrangement On Call For Redemption	 	
 	 	 	
ARTICLE 11
PURCHASE OF SECURITIES	 	
 	 	 	
Section 11.01.	Purchase Right Upon Fundamental Change	 	
Section 11.02.	Purchase of Securities by the Company at Option of the Holder	 	
Section 11.03.	Fundamental Change Notices; Method of Exercising Purchase Right, Etc	 	
 	 	 	
ARTICLE 12
CONVERSION OF SECURITIES	 	
 	 	 	
Section 12.01.	Conversion Right and Conversion Rate	 	
Section 12.02.	Exercise of Conversion Right	 	
Section 12.03.	Fractions of Shares	 	
Section 12.04.	Adjustment of Conversion Rate	 	
Section 12.05.	Notice of Adjustments of Conversion Rate	 	
Section 12.06.	Notice Prior to Certain Actions	 	
Section 12.07.	Company to Reserve Common Stock	 	
Section 12.08.	Taxed on Conversions	 	
Section 12.09.	Covenant as to Common Stock	 	
Section 12.10.	Cancellation of Converted Securities	 	
Section 12.11.	Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale	 	
Section 12.12.	Responsibility of Trustee for Conversion Provisions	 	
 
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ARTICLE 13
SUBORDINATION	 	
 	 	 	
Section 13.01.	Securities Subordinated to Senior Debt	 	
Section 13.02.	Subrogation	 	
Section 13.03.	Obligation of the Company is Absolute and Unconditional	 	
Section 13.04.	Maturity of or Default on Senior Debt	 	
Section 13.05.	Payments on Securities Permitted	 	
Section 13.06.	Effectuation of Subordination by Trustee	 	
Section 13.07.	Knowledge of Trustee	 	
Section 13.08.	Trustee’s Relation to Senior Debt	 	
Section 13.09.	Rights of Holders of Senior Debt Not Impaired	 	
Section 13.10.	Modification of Terms of Senior Debt	 	
Section 13.11.	Certain Conversions Not Deemed Payment	 	
 	 	 	
ARTICLE 14
OTHER PROVISIONS OF GENERAL APPLICATION	 	
 	 	 	
Section 14.01.	Trust Indenture Act Controls	 	
Section 14.02.	Notices	 	
Section 14.03.	Communication by Holders with Other Holders	 	
Section 14.04.	Acts of Holders of Securities	 	
Section 14.05.	Certificate and Opinion as to Conditions Precedent	 	
Section 14.06.	Statements Required in Certificate or Opinion	 	
Section 14.07.	Effect of Headings and Table of Contents	 	
Section 14.08.	Successors and Assigns	 	
Section 14.09.	Separability Clause	 	
Section 14.10.	Benefits of Indenture	 	
Section 14.11.	Governing Law	 	
Section 14.12.	Counterparts	 	
Section 14.13.	Legal Holidays	 	
Section 14.14.	Recourse Against Others	 	
 
iv

 
EXECUTION VERSION
 
INDENTURE, dated as of May 18, 2004, between PIXELWORKS, INC., a corporation duly organized and existing under the laws of the State of Oregon, having its principal office at 8100 Nyberg Street, Suite 300, Tualatin, Oregon 97062 (the “ Issuer ” or the “ Company ”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a New York banking corporation, as Trustee, as Trustee (the “ Trustee ”).
 
RECITALS OF THE COMPANY
 
The Company has duly authorized the creation of an issue of its 1.75% Convertible Subordinated Debentures due 2024 (herein called the “ Securities ”) of substantially the tenor and amount hereinafter set forth, and to provide therefor the Company has duly authorized the execution and delivery of this Indenture.
 
All things necessary to make the Securities, when the Securities are executed by the Company and authenticated and delivered hereunder and duly issued by the Company, the valid obligations of the Company, and to make this Indenture a valid agreement of the Company, in accordance with their and its terms, have been done.
 
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
 
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows:
 
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
 
Section 1.01.                            Definitions.    For all purposes of this Indenture and the Securities, the following terms are defined as follows:
 
“Act”, when used with respect to any Holder of a Security, has the meaning specified in Section 14.04(a) hereof.
 
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “ control ”, when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “ controlling ” and “ controlled ” have meanings correlative to the foregoing.
 
“Bankruptcy Law” means Title 11 of the U.S. Code or any similar federal or state law for the relief of debtors.
 
“Board of Directors” means either the board of directors of the Company or any committee of that board empowered to act for it with respect to this Indenture.
 
“Board Resolution” means a resolution duly adopted by the Board of Directors, a copy of which, certified by the Secretary or an Assistant Secretary of the Company to be in full force and effect on the date of such certification, shall have been delivered to the Trustee.
 
“Business Day”, when used with respect to any Place of Payment or Place of Conversion, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment or Place of Conversion, as the case may be, are authorized or obligated by law to close.
 
“Chief Executive Officer” means the chief executive officer of the Company.

 
“Closing Price” of any security on any date of determination means:
 
(1)                                 the closing sale price (or, if no closing sale price is reported, the last reported sale price) of such security (regular way) on the New York Stock Exchange on such date;
 
(2)                                 if such security is not listed for trading on the New York Stock Exchange on any such date, the closing sale price as reported in the composite transactions for the principal U.S. securities exchange on which such security is so listed;
 
(3)                                 if such security is not so listed on a U.S. national or regional securities exchange, the closing sale price as reported by the Nasdaq National Market;
 
(4)                                 if such security is not so reported, the last quoted bid price for such security in the over-the-counter market as reported by the National Quotation Bureau or similar organization; or
 
(5)                                 if such bid price is not available, the average of the mid-point of the last bid and ask prices of such security on such date from at least three nationally recognized independent investment banking firms retained for this purpose by the Company.
 
“Common Stock” means any stock of any class of the Company which has no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which is not subject to redemption by the Company. However, subject to the provisions of Section 12.11 hereof, shares issuable on conversion of Securities shall include only shares of the class designated as Common Stock, par value $0.001 per share, of the Company at the Issue Date or shares of any class or classes resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which are not subject to redemption by the Company,  provided ,  however , that if at any time there shall be more than one such resulting class, the shares of each such class then so issuable shall be substantially in the proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.
 
“Company” means the corporation named as the “Company” in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “ Company ” shall mean such successor corporation.
 
“Company Notice” has the meaning specified in Section 11.03 hereof.
 
“Company Order” means a written order signed in the name of the Company by both (1) the Chief Executive Officer, the President or a Vice President and (2) so long as not the same as the officer signing pursuant to clause (1), the Chief Financial Officer, the Treasurer, the Secretary or any Assistant Secretary of the Company, and delivered to the Trustee.
 
“Continuing Directors” means a director who either was a member of our board of directors on May 12, 2004 or who becomes a member of our board of directors subsequent to that date and whose appointment, election or nomination for election by our stockholders is duly approved by a majority of the continuing directors on our board of directors at the time of such approval, either by a specific vote or by approval of the proxy statement issued by the Company on behalf of the board of directors in which such individual is named as nominee for director.
 
“Conversion Agent” means any Person authorized by the Company to convert Securities in accordance with Article 12 hereof.
 
“Conversion Price” as of any day will equal $1,000 divided by the Conversion Rate as of such date.
 
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“Conversion Rate” has the meaning specified in Section 12.01 hereof.
 
“Corporate Trust Office” means for purposes of presentation or surrender of Securities for payment, registration, transfer, exchange or conversion or for service of notices or demands upon the Company, the office of Wells Fargo Bank, National Association, located in the City of New York (which at the Issue Date is located at 45 Broadway, 12 th  Floor, New York, NY 10006-3007, and for all other purposes, the office of the Trustee located in the City of Los Angeles, California (which at the Issue Date is located at 707 Wilshire Boulevard, 17 th  Floor, Los Angeles, California 90017).
 
“Current Market Price” has the meaning set forth in Section l2.4(g).
 
“Custodian” means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.
 
“Default” means an event which is, or after notice or lapse of time or both would be, an Event of Default.
 
“Defaulted Interest” has the meaning specified in Section 2.17 hereof.
 
“Depositary” means The Depository Trust Company, its nominees and their respective successors.
 
“Designated Senior Debt” means Senior Debt of the Company which, on the date of a payment event of default or the delivery of a Payment Blockage Notice, has an aggregate amount outstanding of, or under which, on such date, the holders thereof are committed to lend up to, at least $1.0 million and is specifically designated in the instrument, agreement or other document evidencing or governing that Senior Debt as “ Designated Senior Debt ” for purposes of this Indenture.
 
“Dollar”, “U.S. Dollar” or “U.S. $” means a dollar or other equivalent unit in such coin or currency of the United States as at the time shall be legal tender for the payment of public and private debts.
 
“DTC Participants” has the meaning specified in Section 2.08 hereof.
 
“Event of Default” has the meaning specified in Section 4.01 hereof.
 
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
 
“Expiration Time” has the meaning specified in Section 12.04(f) hereof.
 
“fair market value” has the meaning set forth in Section 12.04(g) hereof.
 
“Fundamental Change” means the occurrence of any of the following after the Issue Date:
 
(1)                                 a “person” or “group” within the meaning of Section 13(d) of the Exchange Act other than the Company, its subsidiaries or the Company’s or its subsidiaries’ employee benefit plans, files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect ultimate “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Common Stock representing more than 50% of the voting power of the Company’s Common Stock entitled to vote generally in the election of directors;
 
(2)                                 consummation of any share exchange, consolidation or merger of the Company pursuant to which its Common Stock will be converted into cash, securities or other property or any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its subsidiaries, taken as a whole, to any person other than the Company or one or more of its subsidiaries; provided, however, that a transaction where the holders of the Company’s Common Stock immediately prior to such transaction have directly or indirectly, more than 50% of the aggregate voting power of all classes of Common Stock of the
 
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continuing or surviving corporation or transferee entitled to vote generally in the election of directors immediately after such event shall not be a Fundamental Change; or
 
(3)                                 Continuing Directors cease to constitute at least a majority of the Board of Directors.
 
However, a Fundamental Change will not be deemed to have occurred if:
 
 (x)                               the daily market price per share of Common Stock for any five Trading Days within the period of 10 consecutive Trading Days beginning immediately after the later of the Fundamental Change or the public announcement of the Fundamental Change (in the case of a clause (1) or (3) above) or the period of 10 consecutive Trading Days ending immediately before the Fundamental Change (in the case of clause (2) above) shall equal or exceed 110% of the Conversion Price of the Securities in effect on the date of the Fundamental Change or the public announcement of the Fundamental Change, as applicable; or
 
 (y)                             in the case of the clause (2) above, at least 95% of the consideration (excluding cash payments for fractional shares or dissenters’ appraisal rights) in the transaction or transactions constituting the Fundamental Change consists of shares of common stock that are, or upon issuance will be, traded on the New York Stock Exchange or quoted on the Nasdaq National Market.
 
Beneficial ownership shall be determined in accordance with Rule 13d-3 promulgated by the SEC under the Exchange Act. The term “ person ” shall include any syndicate or group which would be deemed to be a “ person ” under Section 13(d)(3) of the Exchange Act.
 
“Global Security” has the meaning specified in Section 2.02 hereof.
 
“Guarantee” means any obligation, contingent or otherwise, of any Person, directly or indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person:
 
(1)                                 to purchase or pay (or advance or supply finds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or maintain financial statement conditions or otherwise); or
 
(2)                                 entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part);
 
provided, however, that the term “guarantee” will not include endorsements for collection or deposit in the ordinary course of business. The term “ guarantee ” used as a verb has a corresponding meaning.
 
“Holder”, when used with respect to any Security, means the Person in whose name the Security is registered in the Register.
 
“Indebtedness”, when used with respect to any Person, and without duplication means:
 
(1)                                 all indebtedness, obligations and other liabilities (contingent or otherwise) of such Person for borrowed money (including obligations of the Company in respect of overdrafts, foreign exchange contracts, currency exchange agreements, Interest Rate Protection Agreements, and any loans or advances from banks, whether or not evidenced by notes or similar instruments) or evidenced by bonds, debentures, notes or other instruments for the payment of money, or incurred in connection with the acquisition of any property, services or assets (whether or not the recourse of the lender is to the whole of the assets of such Person or to only a portion thereof), other than any account payable or other accrued current liability or obligation to trade creditors incurred in the ordinary course of business in connection with the obtaining of materials or services;
 
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(2)                                 all reimbursement obligations and other liabilities (contingent or otherwise) of such Person with respect to letters of credit, bank guarantees, bankers’ acceptances, surety bonds, performance bonds or other guaranty of contractual performance;
 
(3)                                 all obligations and liabilities (contingent or otherwise) in respect of (a) leases of such Person required, in conformity with generally accepted accounting principles, to be accounted for as capitalized lease obligations on the balance sheet of such Person and (b) any lease or related documents (including a purchase agreement) in connection with the lease of real property which provides that such Person is contractually obligated to purchase or cause a third party to purchase the leased property and thereby guarantee a minimum residual value of the leased property to the landlord and the obligations of such Person under such lease or related document to purchase or to cause a third party to purchase the leased property;
 
(4)                                 all obligations of such Person (contingent or otherwise) with respect to an interest rate or other swap, cap or collar agreement or other similar instrument or agreement or foreign currency hedge, exchange, purchase or similar instrument or agreement;
 
(5)                                 all direct or indirect guaranties or similar agreements by such Person in respect of, and obligations or liabilities (contingent or otherwise) of such Person to purchase or otherwise acquire or otherwise assure a creditor against loss in respect of, indebtedness, obligations or liabilities of another Person of the kind described in clauses (1) through (4);
 
(6)                                 any indebtedness or other obligations described in clauses (1) through (4) secured by any mortgage, pledge, lien or other encumbrance existing on property which is owned or held by such Person, regardless of whether the indebtedness or other obligation secured thereby shall have been assumed by such Person; and
 
(7)                                 any and all deferrals, renewals, extensions, refinancings, replacements, restatements and refundings of, or amendments, modifications or supplements to, any indebtedness, obligation or liability of the kind described in clauses (1) through (6).
 
“Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof.
 
“Initial Purchasers” means Citigroup Global Markets Inc. and D.A. Davidson & Co.
 
“Interest Payment Date” means each May 15 and November 15.
 
“Interest Rate” means 1.75% per annum.
 
“Interest Rate Protection Agreement” means, with respect to any Person, any interest rate swap agreement, interest rate cap or collar agreement or other financial agreement or arrangement designed to protect such Person against fluctuations in interest rates, as in effect from time to time.
 
“Issue Date” means May 18, 2004.
 
“Liquidated Damages” means all liquidated damages, if any, payable pursuant to Section 7 of the Registration Rights Agreement.
 
“Maturity” means the date on which the principal of such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by acceleration, conversion, call for redemption, exercise of a Purchase Right or a Put Purchase Right or otherwise.
 
“Nasdaq National Market” means the National Association of Securities Dealers Automated Quotation National Market or any successor national securities exchange or automated over-the-counter trading market in the United States.
 
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“Non-Electing Share” has the meaning specified in Section 12.11 hereof.
 
“Officer” of the Company means the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer, any Vice President, the Secretary or any Assistant Secretary of the Company.
 
“Officers’ Certificate” means a certificate signed by both (1) the Chief Executive Officer, the President or a Vice President and (2) so long as not the same as the officer signing pursuant to clause (1), the Chief Financial Officer, the Treasurer or the Secretary of the Company, and delivered to the Trustee.
 
“Opinion of Counsel” means a written opinion of counsel, who may be counsel to the Company (and may include directors or employees of the Company) and which opinion is acceptable to the Trustee, which acceptance shall not be unreasonably withheld or delayed.
 
“Optional Redemption Price” has the meaning specified in Section 10.01 hereof.
 
“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except Securities:
 
(1)                                 previously canceled by the Trustee or delivered to the Trustee for cancellation;
 
(2)                                 for the payment or redemption of which money in the necessary amount has been previously deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities,  provided ,  however , that if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture; and
 
(3)                                 which have been paid, in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company.
 
“Paying Agent” has the meaning specified in Section 2.05 hereof.
 
“Payment Blockage Notice” has the meaning specified in Section 13.01(d) hereof.
 
“Payment Blockage Period” has the meaning specified in Section 13.01(d) hereof.
 
“Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, estate, unincorporated organization or government or any agency or political subdivision thereof.
 
“Physical Securities” has the meaning specified in Section 2.02 hereof.
 
“Place of Conversion” means any city in which any Conversion Agent is located.
 
“Place of Payment” means any city in which any Paying Agent is located.
 
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.12 hereof in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
 
“Purchase Agreement” means the Purchase Agreement, dated May 12, 2004, among the Company and the Initial Purchasers.
 
“Purchase Date” has the meaning specified in Section 11.01 hereof.
 
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“Purchase Notice” has the meaning specified in Section 11.02 hereof.
 
“Purchase Price” has the meaning specified in Section 11.01 hereof.
 
“Purchase Right” has the meaning specified in Section 11.01 hereof.
 
“Put Purchase Date” has the meaning specified in Section 11.02 hereof.
 
“Put Purchase Price” has the meaning specified in Section 11.02 hereof.
 
“Put Purchase Right” has the meaning specified in Section 11.02 hereof.
 
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
 
“Quoted Price” of the Common Stock means the last reported sale price of the Common Stock on the Nasdaq National Market or, if the Common Stock is listed on a national securities exchange, then on such exchange, or if the Common Stock is not quoted on Nasdaq National Market or listed on an exchange, the average of the last bid and asked price on the National Association of Securities Dealers Automated Quotation System.
 
“Record Date” means either a Regular Record Date or a Special Record Date, as the case may be, provided that, for purposes of Section 12.04 hereof, Record Date has the meaning specified in Section 12.04(g) hereof.
 
“Redemption Date”, when used with respect to any Security to be redeemed, means the optional redemption date, in the event of an optional redemption.
 
“Redemption Price”, when used with respect to any Security to be redeemed, means the Optional Redemption Price, in the event of an optional redemption.
 
“Reference Period” has the meaning set forth in Section 12.04(d) hereof.
 
“Register” has the meaning specified in Section 2.05 hereof.
 
“Registrar” has the meaning specified in Section 2.05 hereof.
 
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of May 18, 2004, among the Company and the Initial Purchasers.
 
“Regular Record Date” for the interest on the Securities (including Liquidated Damages, if any) payable means the May 1 (whether or not a Business Day) next preceding a May 15 Interest Payment Date and the November 1 (whether or not a Business Day) next preceding an November 15 Interest Payment Date.
 
“Regulation S” means Regulation S promulgated under the Securities Act.
 
“Responsible Officer”, when used with respect to the Trustee, means any officer in the Corporate Trust Office of the Trustee and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
 
“Restricted Period” means the applicable distribution compliance period under Regulation S.
 
“Restricted Securities” means the Securities defined as such in Section 2.03 hereof.
 
“Restricted Securities Legend” has the meaning set forth in Section 2.03(a) hereof.
 
“Rule 144” means Rule 144 under the Securities Act (including any successor rule thereof), as the same may be amended from time to time.
 
“Rule 144A” means Rule 144A as promulgated under the Securities Act (including any successor rule thereof), as the same may be amended from time to time.
 
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“SEC” means the Securities and Exchange Commission.
 
“Securities” has the meaning ascribed to it in the first paragraph under the caption “Recitals of the Company”.
 
“Securities Act” means the Securities Act of 1933, as amended.
 
“Senior Debt” means the principal of, premium, if any, interest (including all interest accruing subsequent to the commencement of any bankruptcy or similar proceeding, whether or not a claim for post-petition interest is allowable as a claim in any such proceeding) and rent payable on or termination payment with respect to or in connection with, and all fees, costs, expenses and other amounts accrued or due on or in connection with, Indebtedness of the Company, whether outstanding on the Issue Date or subsequently created, incurred, assumed, guaranteed or in effect guaranteed by the Company (including all deferrals, renewals, extensions or refundings of, or amendments, modifications or supplements to, the foregoing), except for (a) any particular Indebtedness in respect of which the instrument creating or evidencing the same or the assumption or guarantee thereof expressly provides that such Indebtedness shall not be senior in right of payment to the Securities or expressly provides that such Indebtedness is pari passu or junior to the Securities; (b) any Indebtedness between or among the Company and/or any of its Subsidiaries; and (c) the Company’s trade payables and accrued expenses for goods, services or materials purchased or provided in the ordinary course of business. The term “Senior Debt” shall include, without limitation, all Designated Senior Debt.
 
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Company pursuant to Section 2.17 hereof.
 
“Stated Maturity” means the date specified in any Security as the fixed date for the payment of principal on such Security or on which an installment of interest (including Liquidated Damages, if any) on such Security is due and payable.
 
“Subsidiary” means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition only, “voting stock” means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
 
“TIA” means the Trust Indenture Act of 1939 (15 U.S. Code §77aaa-77bbbb), as in effect on the Issue Date;  provided ,  however , that in the event the TIA is amended after such date, “TIA” means, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended, or any successor statute.
 
“Trading Day” means a day during which trading in securities generally occurs on The New York Stock Exchange or, if the Common Stock is not then listed on The New York Stock Exchange, on the principal other national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a national or regional securities exchange, on the Nasdaq National Market or, if the Common Stock is not then quoted on the Nasdaq National Market, on the principal other market on which the Common Stock is traded.
 
“Trading Price” of the Securities on any date of determination means the average of the secondary market bid quotations per $1,000 principal amount of Securities obtained by the Trustee for $5,000,000 principal amount of the Securities at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers selected by the Company;  provided ,  however , that if three such bids cannot reasonably be obtained by the Trustee, but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Trustee, this one bid shall be used. If the Trustee cannot reasonably obtain at least one bid for $5,000,000 principal amount of Securities from a nationally recognized
 
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securities dealer, then the trading price per $1,000 principal amount of Securities shall be deemed to be less than 98% of the product of the sale price (as defined in the Securities) of the Common Stock and the then applicable Conversion Rate.
 
“Transfer Agent” means any Person, which may be the Company, authorized by the Company to exchange or register the transfer of Securities.
 
“Trigger Event” has the meaning specified in Section 12.04(d) hereof.
 
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.
 
“U.S. Person” has the meaning specified in Regulation S.
 
“Vice President”, when used with respect to the Company, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”
 
Section 1.02.                            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:
 
(i)  “indenture securities” means the Securities;
 
(ii)  “indenture security holder” means a Holder;
 
(iii)  “indenture to be qualified” means this Indenture;
 
(iv)  “indenture trustee” or “institutional trustee” means the Trustee; and
 
(v)  “obligor” on the Securities means the Company and any other obligor on the indenture securities.
 
All other TIA terms used 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 1.03.                            Rules of Construction.    For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
 
(i)  the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
 
(ii)  all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with accounting principles generally accepted in the United States prevailing at the time of any relevant computation hereunder; and
 
(iii)  the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
 
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ARTICLE 2
THE SECURITIES
 
Section 2.01.                            Title and Terms.    The Securities shall be known and designated as the “1.75% Convertible Subordinated Debentures due 2024” of the Company. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is limited to $125,000,000 (or $150,000,000 if the option set forth in Section 2(b) of the Purchase Agreement is exercised in full), except for securities authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of other Securities pursuant to Section 2.07, 2.08, 2.09, 2.12, 7.05, 10.07, 11.01 or 12.02 hereof. The Securities shall be issuable in denominations of $1,000 or multiples thereof.
 
The Securities shall mature on May 15, 2024.
 
Interest shall accrue from May 18, 2004 at the Interest Rate until the principal thereof is paid or made available for payment. Interest shall be payable semiannually in arrears on May 15 and November 15 of each year, commencing November 15, 2004.
 
Interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months, and for any period shorter than a full semiannual period for which interest is calculated, on the basis of a 30-day month, and for such periods of less than a month, the actual number of days elapsed over a 30-day month.
 
Subject to Section 2.17, a Holder of any Security at the close of business on a Regular Record Date shall be entitled to receive interest (including Liquidated Damages, if any) on such Security on the corresponding Interest Payment Date.
 
A Holder of any Security which is converted after the close of business on a Regular Record Date and prior to the corresponding Interest Payment Date (other than any Security whose Maturity is prior to such Interest Payment Date) shall be entitled to receive interest (including Liquidated Damages, if any) on the principal amount of such Security on such Interest Payment Date, notwithstanding the conversion of such Security prior to such Interest Payment Date. However, any such Holder which surrenders any such Security for conversion during the period between the close of business on such Regular Record Date and ending with the opening of business on the corresponding Interest Payment Date shall be required to pay the Company an amount equal to the interest (excluding Liquidated Damages, if any) on the principal amount of such Security so converted (but excluding any Defaulted Interest or on the principal amount of such Security so converted that exists at the time such Holder surrenders such Security for conversion), which is payable by the Company to such Holder on such Interest Payment Date, at the time such Holder surrenders such Security for conversion. Notwithstanding the foregoing, any such Holder which surrenders for conversion any Security (a) which has been called for redemption by the Company in a notice of redemption given by the Company pursuant to Section 10.04 hereof on a Redemption Date after such Regular Record Date and on or prior to the next succeeding Interest Payment Date or (b) with respect to which the Company has specified a Purchase Date that is after such Regular Record Date and on or prior to the next succeeding Interest Payment Date, in either case, shall be entitled to receive (and retain) such interest and need not pay the Company an amount equal to the interest on the principal amount of such Security so converted at the time such Holder surrenders such Security for conversion.
 
Principal of and interest on, Global Securities shall be payable to the Depositary in immediately available funds.
 
Principal on Physical Securities shall be payable at the office or agency of the Company maintained for such purpose, initially the Corporate Trust Office of the Trustee. Interest on Physical Securities will be payable by (i) U.S. Dollar check drawn on a bank located in the city where the Corporate Trust Office of the Trustee is located mailed to the address of the Person entitled thereto as such address shall appear in the Register, or (ii) upon application to the Registrar not later than the
 
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relevant Record Date by a Holder of an aggregate principal amount in excess of $5,000,000, wire transfer in immediately available funds.
 
The Securities shall be redeemable at the option of the Company as provided in Article 10 hereof.
 
The Securities shall have the Purchase Rights exercisable at the option of Holders as provided in Article 11 hereof.
 
The Securities shall be convertible as provided in Article 12 hereof.
 
The Securities shall be subordinated in right of payment to Senior Debt of the Company as provided in Article 13 hereof.
 
Section 2.02.                            Form of Securities.    The Securities and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially in the form annexed hereto as Exhibit A, which is incorporated in and made a part of this Indenture. The terms and provisions contained in the form of Security shall constitute, and are hereby expressly made, a part of this Indenture and to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.
 
Any of the Securities may have such letters, numbers or other marks of identification and such notations, legends and endorsements as the Officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Securities may be listed or designated for issuance, or to conform to usage.
 
The Securities will be offered and sold only to QIBs in reliance on Rule 144A and outside the United States in accordance with Regulation S and shall be issued initially only in the form of one or more permanent Global Securities (each, a “ Global Security ”) in registered form without interest coupons. The Global Securities shall be:
 
(1)  duly executed by the Company and authenticated by the Trustee as hereinafter provided;
 
(2)  registered in the name of the Depositary (or its nominee) for credit to the respective accounts of the Holders at the Depositary; and
 
(3)  deposited with the Trustee, as custodian for the Depositary.
 
The Global Securities shall be substantially in the form of Security set forth in Exhibit A annexed hereto (including the text and schedule called for by footnotes 1 and 2 thereto). The aggregate principal amount of the Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee as required by Section 2.9, as custodian for the Depositary (or its nominee), in accordance with the instructions given by the Holder thereof, as hereinafter provided.
 
Securities issued in exchange for interests in the Global Securities pursuant to Section 2.08(d) hereof shall be issued in the form of permanent definitive Securities (the “ Physical Securities ”) in registered form without interest coupons. The Physical Securities shall be substantially in the form set forth in Exhibit A annexed hereto.
 
The Securities shall be typed, printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any securities exchange on which the Securities may be listed, all as determined by the Officers executing such Securities, as evidenced by their execution of such Securities.
 
Section 2.03.                            Legends.    (a) Restricted Securities Legends.    Each Security issued hereunder shall, upon issuance, bear the legend set forth in Section 2.03(a)(i) or Section 2.03(a)(ii) (each, a “ Restricted
 
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Securities Legend”), as the case may be, and such legend shall not be removed except as provided in Section 2.03(a)(iii). Each Security that bears or is required to bear the Restricted Securities Legend set forth in Section 2.03(a)(i) (together with any Common Stock issued upon conversion of the Securities and required to bear the Restricted Securities Legend set forth in Section 2.03(a)(ii), collectively, the “ Restricted Securities ”) shall be subject to the restrictions on transfer set forth in this Section 2.03(a) (including the Restricted Securities Legend set forth below), and the Holder of each such Restricted Security, by such Holder’s acceptance thereof, shall be deemed to have agreed to be bound by all such restrictions on transfer.
 
As used in Section 2.03(a), the term “transfer” encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.
 
(i)                                     Restricted Securities Legend for Securities.    Except as provided in Section 2.03(a)(iii), until the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision), any certificate evidencing such Security (and all securities issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon conversion thereof, which shall bear the legend set forth in Section 2.03(a)(ii), if applicable) shall bear a Restricted Securities Legend in substantially the following form:
 
THIS DEBENTURE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”), AND THIS DEBENTURE AND THE COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS DEBENTURE IS HEREBY NOTIFIED THAT THE SELLER OF THIS DEBENTURE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A OR REGULATION S THEREUNDER.
 
THE HOLDER OF THIS DEBENTURE AGREES FOR THE BENEFIT OF PIXELWORKS, INC. THAT (A) THIS DEBENTURE AND THE COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE l44A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE l44A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, (B) THE HOLDER WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO THIS SECURITY OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT, AND (C) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS DEBENTURE FROM IT OF THE RESTRICTIONS REFERRED TO IN (A) AND (B) ABOVE.
 
(ii)                                  Restricted Securities Legend for Common Stock Issued upon Conversion of the Securities.    Except as provided in Section 2.03(a)(iii), until the expiration of the holding period applicable to
 
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sales thereof under Rule 144(k) under the Securities Act (or any successor provision), any stock certificate representing Common Stock issued upon conversion of such Security shall bear a Restricted Securities Legend in substantially the following form:
 
THE COMMON STOCK EVIDENCED HEREBY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”). THE HOLDER OF THIS CERTIFICATE AGREES FOR THE BENEFIT OF PIXELWORKS, INC. (THE “COMPANY”) THAT (A) THE COMMON STOCK EVIDENCED HEREBY MAY OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, IF AVAILABLE, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, (B) THE HOLDER WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO THIS COMMON STOCK EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT, AND (C) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE COMMON STOCK EVIDENCED HEREBY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) AND (B) ABOVE.
 
(iii)                               Removal of the Restricted Securities Legends.    Each Security or share of Common Stock issued upon conversion of such Security shall bear the Restricted Securities Legend set forth in Section 2.03(a)(i) or 2.03(a)(ii), as the case may be, until the earlier of:
 
(A)                                           the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision);
 
(B)                                             such Security or Common Stock has been sold pursuant to a registration statement that has been declared effective under the Securities Act (and which continues to be effective at the time of such sale); or
 
(C)                                             such Common Stock has been issued upon conversion of Securities that have been sold pursuant to a registration statement that has been declared effective under the Securities Act (and which continues to be effective at the time of such sale).
 
The Holder must give notice thereof to the Trustee and any transfer agent for the Common Stock, as applicable.
 
Notwithstanding the foregoing, the Restricted Securities Legend may be removed if there is delivered to the Company such satisfactory evidence, which may include an opinion of independent counsel, as may be reasonably required by the Company, that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Security will not violate the registration requirements of the Securities Act. Upon provision of such satisfactory evidence, the Trustee, at the written direction of the Company, shall authenticate and deliver in exchange for such Securities another Security or Securities having an equal aggregate principal amount that does not bear such legend. If the Restricted Securities Legend has been removed from a Security as provided above, no other Security issued in exchange for all or any part of such Security shall bear such legend, unless
 
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the Company has reasonable cause to believe that such other Security is a “restricted security” within the meaning of Rule 144 and instructs the Trustee in writing to cause a Restricted Securities Legend to appear thereon.
 
Any Security (or security issued in exchange or substitution thereof) as to which such restrictions on transfer shall have expired in accordance with their terms or as to which the conditions for removal of the Restricted Securities Legend set forth in Section 2.03(a)(i) as set forth therein have been satisfied may, upon surrender of such Security for exchange to the Registrar in accordance with the provisions of Section 2.07 hereof, be exchanged for a new Security or Securities, of like tenor and aggregate principal amount, which shall not bear the Restricted Securities Legend required by Section 2.03(a)(i).
 
Any such Common Stock as to which such restrictions on transfer shall have expired in accordance with their terms or as to which the conditions for removal of the Restricted Securities Legend set forth in Section 2.03(a)(ii) as set forth therein have been satisfied may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of Common Stock, which shall not bear the Restricted Securities Legend required by Section 2.03(a)(ii).
 
(b)  Global Security Legend.    Each Global Security shall also bear the following legend on the face thereof:
 
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO PIXELWORKS, INC. (OR ITS SUCCESSOR) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, CONVERSION OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), 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.
 
Section 2.04.                            Execution, Authentication, Delivery and Dating.    Two Officers shall execute the Securities on behalf of the Company by manual or facsimile signature. If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall be valid nevertheless.
 
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities as in this Indenture provided and not otherwise.
 
Each Security shall be dated the date of its authentication.
 
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 executed by or on behalf of the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.
 
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The Trustee may appoint an authenticating agent or agents reasonably acceptable to the Company with respect to the Securities. Unless limited by the terms of such appointment, an authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.
 
Section 2.05.                            Registrar and Paying Agent.    The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (the “ Registrar ”) and an office or agency where Securities may be presented for payment (the “ Paying Agent ”). The Registrar shall keep a register of the Securities (the “ Register ”) and of their transfer and exchange. The Company may appoint one or more co-Registrars and one or more additional Paying Agents for the Securities. The term “Paying Agent” includes any additional paying agent and the term “Registrar” includes any additional registrar. The Company may change any Paying Agent or Registrar without prior notice to any Holder.
 
The Company will cause each Paying Agent (other than the Trustee) to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
 
(i)  hold all sums held by it for the payment of the principal of or interest (including Liquidated Damages, if any) on Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as provided in this Indenture;
 
(ii)  give the Trustee notice of any Default by the Company in the making of any payment of principal or interest (including Liquidated Damages, if any); and
 
(iii)  at any time during the continuance of any such Default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
 
The Company shall give prompt written notice to the Trustee of the name and address of any Paying Agent who is not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any Affiliate of the Company may act as Paying Agent or Registrar;  provided ,  however , that none of the Company, its Subsidiaries or the Affiliates of the foregoing shall act:
 
(i)  as Paying Agent in connection with redemptions, offers to purchase and discharges, as otherwise specified in this Indenture, and
 
(ii)  as Paying Agent or Registrar if a Default or Event of Default has occurred and is continuing.
 
The Company hereby initially appoints the Trustee as Registrar and Paying Agent for the Securities.
 
Section 2.06.                            Paying Agent to Hold Assets in Trust.    Not later than 12:00 Noon (New York City time) on each due date of the principal and interest (including Liquidated Damages, if any) on any Securities, the Company shall deposit with one or more Paying Agents money in immediately available funds sufficient to pay such principal and interest (including Liquidated Damages, if any) so becoming due. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company) shall have no further liability for the money so paid over to the Trustee.
 
If the Company shall act as a Paying Agent, it shall, prior to or on each due date of the principal of or interest (including Liquidated Damages, if any) on any of the Securities, segregate and hold in trust for the benefit of the Holders a sum sufficient with monies held by all other Paying Agents, to pay the principal or interest (including Liquidated Damages, if any) so becoming due until such sums shall
 
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be paid to such Persons or otherwise disposed of as provided in this Indenture, and shall promptly notify the Trustee of its action or failure to act.
 
Section 2.07.                            General Provisions Relating to Transfer and Exchange.    The Securities are issuable only in registered form. A Holder may transfer a Security only by written application to the Registrar stating the name of the proposed transferee and otherwise complying with the terms of this Indenture. No such transfer shall be effected until, and such transferee shall succeed to the rights of a Holder only upon, final acceptance and registration of the transfer by the Registrar in the Register. Furthermore, any Holder of a Global Security shall, by acceptance of such Global Security, agree that transfers of beneficial interests in such Global Security may be effected only through a book-entry system maintained by the Holder of such Global Security (or its agent) and that ownership of a beneficial interest in the Security shall be required to be reflected in a book-entry. Notwithstanding the foregoing, in the case of a Restricted Security, a beneficial interest in a Global Security being transferred in reliance on an exemption from the registration requirements of the Securities Act other than in accordance with Rule 144, Rule 144A and Regulation S may only be transferred for a Physical Security.
 
When Securities are presented to the Registrar with a request to register the transfer or to exchange them for an equal aggregate principal amount of Securities of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its requirements for such transactions are met (including that such Securities are duly endorsed or accompanied by a written instrument of transfer duly executed by the Holder thereof or by an attorney who is authorized in writing to act on behalf of the Holder). Subject to Section 2.04 hereof, to permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Securities at the Registrar’s request. No service charge shall be made for any registration of transfer or exchange or redemption of the Securities, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or other similar governmental charge payable upon exchanges pursuant to Section 2.14, 7.05 or 10.07 hereof).
 
Neither the Company nor the Registrar shall be required to exchange or register a transfer of any Securities:
 
(i)  for a period of 15 Business Days prior to the day of any selection of Securities for redemption under Article 10 hereof;
 
(ii)  so selected for redemption or, if a portion of any Security is selected for redemption, such portion thereof selected for redemption; or
 
(iii)  surrendered for conversion or, if a portion of any Security is surrendered for conversion, such portion thereof surrendered for conversion, or for which a Purchase Notice or Fundamental Change Purchase Notice has been given and not withdrawn.
 
Section 2.08.                            Book-Entry Provisions for the Global Securities.    (a) The Global Securities initially shall
 
(i)  be registered in the name of the Depositary (or a nominee thereof);
 
(ii)  be delivered to the Trustee as custodian for such Depositary; and
 
(iii)  bear the Restricted Securities Legend as set forth in Section 2.03(a)(i) hereof.
 
Members of, or participants in, the Depositary (“DTC Participants”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, or the Trustee as its custodian, or under such Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing contained herein
 
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shall prevent the Company, the Trustee or any agent of the Company or Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and the DTC Participants, the operation of customary practices governing the exercise of the rights of a Holder of any Security.
 
(b)         The registered Holder of a Global Security may grant proxies and otherwise authorize any Person, including DTC Participants and Persons that may hold interests through DTC Participants, to take any action which a Holder is entitled to take under this Indenture or the Securities.
 
(c)          A Global Security may not be transferred, in whole or in part, to any Person other than the Depositary (or a nominee thereof), and no such transfer to any such other Person may be registered. Beneficial interests in a Global Security may be transferred in accordance with the rules and procedures of the Depositary and the provisions of Section 2.09 hereof.
 
(d)         If at any time:
 
(i)  the Depositary notifies the Company in writing that it is no longer willing or able to continue to act as Depositary for the Global Securities, or the Depositary ceases to be a “clearing agency” registered under the Exchange Act, and a successor Depositary for the Global Securities is not appointed by the Company within 90 days of such notice or cessation;
 
(ii)  the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of the Securities in definitive registered form under this Indenture in exchange for all or any part of the Securities represented by a Global Security or Global Securities; or
 
(iii)  an Event of Default has occurred and is continuing and the Registrar has received a request from the Depositary for the issuance of Physical Securities in exchange for such Global Security or Global Securities,
 
the Depositary shall surrender such Global Security or Global Securities to the Trustee for cancellation and the Company shall execute, and the Trustee, upon receipt of an Officers’ Certificate and Company Order for the authentication and delivery of Securities, shall authenticate and deliver in exchange for such Global Security or Global Securities, Physical Securities of like tenor as that of the Global Securities in an aggregate principal amount equal to the aggregate principal amount of such Global Security or Global Securities. Such Physical Securities shall be registered in such names as the Depositary shall identify in writing as the beneficial owners of the Securities represented by such Global Security or Global Securities (or any nominees thereof).
 
Notwithstanding the foregoing, in connection with any such surrender and subsequent exchange pursuant to Section 2.08(d) hereof, the Registrar shall reflect on its books and records the date and a decrease in the principal amount of such Global Security in an amount equal to the principal amount of the beneficial interest in such Global Security to be transferred.
 
Section 2.09.                            Special Transfer Provisions.    Unless a Security is transferred after the time period referred to in Rule 144(k) under the Securities Act or otherwise sold pursuant to a registration statement that has been declared effective under the Securities Act (and which continues to be effective at the time of such sale), the following provisions shall apply.
 
With respect to the registration of any proposed transfer of Securities to a QIB in accordance with Rule 144A:
 
(i)  if the Securities to be transferred consist of an interest in the Global Securities, the transfer of such interest may be effected only through the book-entry system maintained by the Depositary; and
 
(ii)  if the Securities to be transferred consist of Physical Securities, the Registrar shall register the transfer if such transfer is being made by a proposed transferor who has checked the box
 
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provided on the form of Security stating, or has otherwise advised the Company and the Registrar in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has signed the certification provided on the form of Security stating or has otherwise advised the Company and the Registrar in writing that:
 
(A)                it is purchasing the Securities for its own account or an account with respect to which it exercises sole investment discretion, in each case for investment and not with a view to distribution;
 
(B)                  it and any such account is a QIB within the meaning of Rule l44A;
 
(C)                  it is aware that the sale to it is being made in reliance on Rule 144A;
 
(D)                 it acknowledges that it has received such information regarding the Company as it has requested pursuant to Rule 144A or has determined not to request such information; and
 
(E)                   it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A.
 
With respect to the registration of any proposed transfer of Securities to a person who is not a U.S. Person in an offshore transaction in accordance with Regulation S:
 
(i)  if the Securities to be transferred consist of an interest in the Global Securities, the transfer of such interest may be effected only through the book-entry system maintained by the Depositary; and
 
(ii)  if the Securities to be transferred consist of Physical Securities, the Registrar shall register the transfer if such transfer is being made by a proposed transferor who has checked the box provided for on the form of Security stating, or has otherwise advised the Company and the Registrar in writing, that the sale has been made in compliance with the provisions of Regulation S to a transferee who has signed the certification provided for on the form of Security stating or has otherwise advised the Company and the Registrar in writing that:
 
(A)                the transfer is not being made to a person in the United States and (1) at the time the buy order was originated, the transferee was outside the United States or such transferor and any Person acting on its behalf reasonably believed and believes that the transferee was outside the United States or (2) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States;
 
(B)                  no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act;
 
(C)                  the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
 
(D)                 if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person.
 
By its acceptance of any Security bearing the Restricted Securities Legend, each Holder of such a Security acknowledges the restrictions on transfer of such Security set forth in this Indenture and agrees that it will transfer such Security only as provided in this Indenture. The Registrar shall not register a transfer of any Security unless such transfer complies with the restrictions on transfer of such Security set forth in this Indenture. The Registrar shall be entitled to receive and rely on written instructions from the Company verifying that such transfer complies with such restrictions on transfer. In connection with any transfer of Securities, each Holder agrees by its acceptance of the Securities to furnish the Registrar or the Company such certifications, legal opinions or other information as either of them may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or a transaction not subject to, the registration requirements of the Securities Act;  provided , however , that the Registrar shall not be required to determine (but may rely on a determination made by the Company with respect to) the sufficiency of any such certifications, legal opinions or other information.
 
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The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.08 hereof or this Section 2.09. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.
 
Section 2.10.                            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 and shall otherwise comply with Section 312(a) of the TIA. If the Trustee is not the Registrar, the Company shall furnish to the Trustee prior to or on each Interest Payment Date and at such other times as the Trustee may request in writing a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders relating to such Interest Payment Date or request, as the case may be.
 
Section 2.11.                            Persons Deemed Owners.    The Company, the Trustee and any agent of the Company or the Trustee may treat the registered Holder of a Global Security as the absolute owner of such Global Security for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security be overdue, and notwithstanding any notice of ownership or writing thereon, or any notice of previous loss or theft or other interest therein. The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name any Security is registered as the owner of such Security for the purpose of receiving payment of principal of and interest (including Liquidated Damages, if any) on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and notwithstanding any notice of ownership or writing thereon, or any notice of previous loss or theft or other interest therein.
 
Section 2.12.                            Mutilated, Destroyed, Lost or Stolen Securities.    If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of like tenor and principal amount and bearing a number not contemporaneously outstanding.
 
If there is delivered to the Company and the Trustee
 
(i)  evidence to their satisfaction of the destruction, loss or theft of any Security, and
 
(ii)  such security or indemnity as may be required by them to save each of them and any agent of either of them harmless,
 
then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and, upon request, the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor and principal amount and bearing a number not contemporaneously outstanding.
 
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion, but subject to any conversion rights, may, instead of issuing a new Security, pay such Security, upon satisfaction of the condition set forth in the preceding paragraph.
 
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
 
Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and such new Security shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.
 
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The provisions of this Section 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 2.13.                            Treasury Securities.    In determining whether the Holders of the requisite principal amount of Outstanding Securities are present at a meeting of Holders for quorum purposes or have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such determination as to the presence of a quorum or upon any such request, demand, authorization, direction, notice, consent or waiver, only such Securities of which the Trustee has received written notice and are so owned shall be so disregarded.
 
Section 2.14.                            Temporary Securities.    Pending the preparation of Securities in definitive form, the Company may execute and the Trustee shall, upon written request of the Company, authenticate and deliver temporary Securities (printed or lithographed). Temporary Securities shall be issuable in any authorized denomination, and substantially in the form of the Securities in definitive form but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company. Every such temporary Security shall be executed by the Company and authenticated by the Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the Securities in definitive form. Without unreasonable delay, the Company will execute and deliver to the Trustee Securities in definitive form (other than in the case of Securities in global form) and thereupon any or all temporary Securities (other than any such Securities in global form) may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 9.02 and the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal aggregate principal amount of Securities in definitive form. Such exchange shall be made by the Company at its own expense and without any charge therefor. Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Securities in definitive form authenticated and delivered hereunder.
 
Section 2.15.                            Cancellation.    All securities surrendered for payment, redemption, purchase, conversion, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities so delivered shall be canceled promptly by the Trustee, and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. Upon written instructions of the Company, the Trustee shall destroy canceled Securities and, after such destruction, shall deliver a certificate of such destruction to the Company. If the Company shall acquire any of the Securities, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless the same are delivered to the Trustee for cancellation.
 
Section 2.16.                            CUSIP Numbers.    The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and the Trustee shall use CUSIP numbers in notices of redemption or exchange as a convenience to Holders;  provided ,  however , that any such notice shall state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any such notice and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee of any change in the CUSIP numbers.
 
Section 2.17.                            Defaulted Interest.    If the Company fails to make a payment of interest (including Liquidated Damages, if any) on any Security when due and payable (“ Defaulted Interest ”), it shall pay such Defaulted Interest plus (to the extent lawful) any interest payable on the Defaulted Interest, in any lawful manner. It may elect to pay such Defaulted Interest, plus any such interest payable on it, to the Persons who are Holders of such Securities on which the interest is due on a subsequent Special
 
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Record Date. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Security. The Company shall fix any such Special Record Date and payment date for such payment. At least 15 days before any such Special Record Date, the Company shall mail to Holders affected thereby a notice that states the Special Record Date, the Interest Payment Date, and amount of such interest (and such Liquidated Damages, if any) to be paid.
 
Section 2.18.                            Rule 144A and Regulation S.    The Company agrees that it will refuse to register any transfer of Securities or Common Stock that is not made in accordance with the provisions of Rule 144A or Regulation S under the Securities Act, pursuant to a registration statement which has been declared effective under the Securities Act or pursuant to an available exemption from the registration requirements of the Securities Act;  provided  that this Section 2.18 shall not be applicable to any Securities or shares of Common Stock which do not bear the legend set forth in Section 2.03(a)(i) or (ii) hereof.
 
ARTICLE 3
SATISFACTION AND DISCHARGE
 
Section 3.01.                            Satisfaction and Discharge of Indenture.    When:
 
(a)                                 The Company shall deliver to the trustee for cancellation all Securities previously authenticated (other than any Securities which have been destroyed, lost or stolen and in lieu of or in substitution for which other Securities shall have been authenticated and delivered) and not previously canceled, or
 
(b)                                (i) All the Securities not previously canceled or delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and
 
(ii) The Company shall deposit with the Trustee, in trust, cash in U.S. dollars which through the payment of interest and principal in respect thereof, in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on the Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient to pay principal of or interest (including Liquidated Damages, if any) on all of the Securities (other than any Securities which shall have been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Securities shall have been authenticated and delivered) not previously canceled or delivered to the Trustee for cancellation, on the dates such payments of principal or interest (including Liquidated Damages, if any) are due to such date of maturity or redemption, as the case may be,
 
and if, in the case of either clause (a) or (b), the Company shall also pay or cause to be paid all other sums payable hereunder by the Company, then this Indenture shall cease to be of further effect (except as to: (A) remaining rights of registration of transfer, substitution and exchange and conversion of Securities, (B) rights hereunder of Holders to receive payments of principal of and interest (including Liquidated Damages, if any) on the Securities and the other rights, duties and obligations of Holders, as beneficiaries hereof with respect to the amounts, if any, so deposited with the Trustee, and (C) the rights, obligations and immunities of the Trustee hereunder), and the Trustee, on demand of the Company accompanied by an Officers’ Certificate and an Opinion of Counsel as provided in Section 14.05 hereof and at the cost and expense of the Company, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture;  provided ,  however , that the Company shall reimburse the Trustee for all amounts due the Trustee under Section 5.08 hereof and for any costs or expenses thereafter reasonably and properly incurred by the Trustee and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities.
 
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Section 3.02.                            Deposited Monies to Be Held in Trust.    Subject to Section 3.03 hereof, all monies deposited with the Trustee pursuant to Section 3.01 hereof shall be held in trust and applied by it to the payment, notwithstanding the provisions of Article 13 hereof, either directly or through any Paying Agent (including the Company if acting as its own Paying Agent), to the Holders of the particular Securities for the payment or redemption of which such monies have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest (including Liquidated Damages, if any). All monies deposited with the Trustee pursuant to Section 3.01 hereof (and held by it or any Paying Agent) for the payment of Securities subsequently converted shall be returned to the Company upon request of the Company.
 
Section 3.03.                            Return of Unclaimed Monies.    The Trustee and the Paying Agent shall pay to the Company any money held by them for the payment of principal or interest (including Liquidated Damages, if any) that remains unclaimed for two years after the date upon which such payment shall have become due. After payment to the Company, Holders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another Person, and all liability of the Trustee and the Paying Agent with respect to such money shall cease.
 
ARTICLE 4
DEFAULTS AND REMEDIES
 
Section 4.01.                            Events of Default.    An “Event of Default” with respect to the Securities occurs when any of the following occurs (whatever the reason for such Event of Default and whether it shall be occasioned by the provisions of Article 13 hereof or be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
 
(a)                                 the Company defaults in the payment of the principal on any of the Securities when it becomes due and payable, at Maturity, upon redemption or exercise of a Purchase Right or Put Purchase Right or otherwise, whether or not such payment is prohibited by Article 13 hereof; or
 
(b)                                the Company defaults in the payment of interest (including Liquidated Damages, if any) on any of the Securities when it becomes due and payable and such default continues for a period of 30 days, whether or not such payment is prohibited by Article 13 hereof; or
 
(c)                                 the Company fails to deliver shares of Common Stock, together with cash instead of fractional shares, when those shares of Common Stock or cash instead of fractional shares are required to be delivered following conversion of a Security in accordance with Article 12, and that failure continues for 10 days; or
 
(d)                                the Company fails to perform or observe any other term, covenant or agreement contained in the Securities or this Indenture and the failure continues for a period of 60 days after written notice of such failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities; or
 
(e)                                 (i) the Company fails to make any payment by the end of the applicable grace period, if any, after the maturity of any Indebtedness for borrowed money in an amount in excess of $10,000,000 or (ii) there is an acceleration of any Indebtedness for borrowed money in an amount in excess of $10,000,000 because of a default with respect to such Indebtedness without such Indebtedness having been discharged or such acceleration having been cured, waived, rescinded or annulled, in the case of either (i) or (ii) above, for a period of 30 days after written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least 25% in aggregate principal amount of the Outstanding Securities; or
 
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(f)                                   the Company fails, within 30 days after the occurrence of a Fundamental Change, to give to each Holder of Securities notice pursuant to Section 11.03 hereof; or
 
(g)                                the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable U.S. federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
 
(h)                                the commencement by the Company of a voluntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Company to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Company, or the filing by the Company of a petition or answer or consent seeking reorganization or relief under any applicable U.S. federal or state law, or the consent by the Company to the filing of such petition or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by the Company of an assignment for the benefit of creditors, or the admission by the Company in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company expressly in furtherance of any such action.
 
Section 4.02.                            Acceleration of Maturity; Rescission and Annulment.    If an Event of Default with respect to Outstanding Securities (other than an Event of Default specified in Section 4.01(g) or 4.01(h) hereof) occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the Outstanding Securities, by written notice to the Company, may declare due and payable 100% of the principal amount of all Outstanding Securities plus any accrued and unpaid interest (including Liquidated Damages, if any) to the date of payment. Upon a declaration of acceleration, such principal and accrued and unpaid interest (including Liquidated Damages, if any) to the date of payment shall be immediately due and payable.
 
If an Event of Default specified in Section 4.01(g) or 4.01(h) hereof occurs, all unpaid principal of and accrued and unpaid interest (including Liquidated Damages, if any) on the Outstanding Securities shall become and be immediately due and payable, without any declaration or other act on the part of the Trustee or any Holder.
 
The Holders of a majority in aggregate principal amount of the Outstanding Securities by written notice to the Trustee may rescind and annul an acceleration and its consequences if:
 
(i)  all existing Events of Default, other than the nonpayment of principal of or interest on the Securities which has become due solely because of the acceleration, have been remedied, cured or waived, and
 
(ii)  the rescission would not conflict with any judgment or decree of a court of competent jurisdiction;
 
provided, however, that in the event such declaration of acceleration has been made based on the existence of an Event of Default under Section 4.01(e) hereof and such Event of Default has been remedied, cured or waived in accordance with Section 4.01(e) hereof, then, without any further action by the Holders, such declaration of acceleration shall be rescinded automatically and the consequences
 
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of such declaration shall be annulled. No such rescission or annulment shall affect any subsequent Default or impair any right consequent thereon.
 
Section 4.03.                            Other Remedies.    If an Event of Default with respect to Outstanding Securities occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of or interest on the Securities or to enforce the performance of any provision of the Securities.
 
The Trustee may maintain a proceeding in which it may prosecute and enforce all rights of action and claims under this Indenture or the Securities, even if it does not possess any of the Securities or does not produce any of them in the proceeding.
 
Section 4.04.                            Waiver of Past Defaults.    The Holders, either (a) through the written consent of not less than a majority in aggregate principal amount of the Outstanding Securities or (b) by the adoption of a resolution, at a meeting of Holders of the Outstanding Securities at which a quorum is present, by the Holders of at least a majority in aggregate principal amount of the Outstanding Securities represented at such meeting, may, on behalf of the Holders of all of the Securities, waive an existing Default or Event of Default, except a Default or Event of Default:
 
(i)  in the payment of the principal of or interest (including Liquidated Damages, if any) on any Security (provided, however , that subject to Section 4.07 hereof, the Holders of a majority in aggregate principal amount of the Outstanding Securities may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration);
 
(ii)  in respect of the failure to convert any Security in accordance with Article 12; or
 
(iii)  in respect of a covenant or provision hereof which, under Section 7.02 hereof, cannot be modified or amended without the consent of the Holder of each Outstanding Security affected.
 
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture;  provided ,  however , that no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
 
Section 4.05.                            Control by Majority.    The Holders, either (a) through the written consent of not less than a majority in aggregate principal amount of the Outstanding Securities, or (b) by the adoption of a resolution, at a meeting of Holders of the Outstanding Securities at which a quorum is present, by the Holders of at least a majority in aggregate principal amount of the Outstanding Securities represented at such meeting, shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that:
 
(i)  conflicts with any law or with this Indenture,
 
(ii)  the Trustee determines may be unduly prejudicial to the rights of the Holders not joining therein, or
 
(iii)  may expose the Trustee to personal liability.
 
The Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
 
Section 4.06.                            Limitation on Suit.    No Holder of any Security shall have any right to pursue any remedy with respect to this Indenture or the Securities (including instituting any proceeding, judicial or otherwise, with respect to this Indenture or for the appointment of a receiver or trustee) unless:
 
(i)  such Holder has previously given written notice to the Trustee of an Event of Default that is continuing;
 
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(ii)  the Holders of at least 25% in aggregate principal amount of the Outstanding Securities shall have made written request to the Trustee to pursue the remedy;
 
(iii)  such Holder or Holders have offered to the Trustee indemnity satisfactory to it against any costs, expenses and liabilities incurred in complying with such request;
 
(iv)  the Trustee has failed to comply with the request for 60 days after its receipt of such notice, request and offer of indemnity; and
 
(v)  during such 60-day period, no direction inconsistent with such written request has been given to the Trustee by the Holders of a majority in aggregate principal amount of the Outstanding Securities (or such amount as shall have acted at a meeting pursuant to the provisions of this Indenture);
 
provided, however, that no one or more of such Holders may use this Indenture to prejudice the rights of another Holder or to obtain preference or priority over another Holder.
 
Section 4.07.                            Unconditional Rights of Holders to Receive Payment and to Convert.    Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest (including Liquidated Damages, if any) on such Security on the Stated Maturity expressed in such Security (or, in the case of redemption, on the Redemption Date, or in the case of the exercise of a Purchase Right or Put Purchase Right, on the Purchase Date or Put Purchase Date, as applicable) and to convert such Security in accordance with Article 12, and to bring suit for the enforcement of any such payment on or after such respective dates and right to convert, and such rights shall not be impaired or affected without the consent of such Holder.
 
Section 4.08.                            Collection of Indebtedness and Suits for Enforcement by the Trustee.    The Company covenants that if:
 
(i)  a Default or Event of Default occurs in the payment of any interest (including Liquidated Damages, if any) on any Security when such interest (including Liquidated Damages, if any) becomes due and payable and such Default or Event of Default continues for a period of 30 days, or
 
(ii)  a Default or Event of Default occurs in the payment of the principal of any Security at the Maturity thereof, the Company shall, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable (as expressed therein or as a result of any acceleration effected pursuant to Section 4.02 hereof) on such Securities for principal and interest (including Liquidated Damages, if any) and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and on any overdue interest (including Liquidated Damages, if any), in each case at the Interest Rate, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
 
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company, wherever situated.
 
If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether
 
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for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
 
Section 4.09.                            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 the property of the Company or its creditors, the Trustee (irrespective of whether the principal 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 overdue principal or interest (including Liquidated Damages, if any)) shall be entitled and empowered, by intervention in such proceeding or otherwise, (1) to file and prove a claim for the whole amount of principal and interest (including Liquidated Damages, if any) owing and unpaid in respect of the Securities 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) and of the Holders of Securities allowed in such judicial proceeding, and (2) to collect and receive any moneys or other property payable or deliverable on any such claim and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceedings is hereby authorized by each Holder of Securities 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 of Securities, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee under Section 5.08.
 
Nothing contained herein shall be deemed to authorize the Trustee to authorize or consent to or accept, or adopt on behalf of any Holder of a Security, 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 of a Security in any such proceeding.
 
Section 4.10.                            Restoration of Rights and Remedies.    If the Trustee or any Holder of a Security has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders of Securities shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
 
Section 4.11.                            Rights and Remedies.    Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 2.12, no right or remedy conferred in this Indenture upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
 
Section 4.12.                            Delay or Omission Not Waiver.    No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or any acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders of Securities may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Securities, as the case may be.
 
Section 4.13.                            Application of Money Collected.    Subject to Article 13, any money and property collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money and property on account of principal or interest (including Liquidated Damages, if any), upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
 
FIRST: To the payment of all amounts due the Trustee;
 
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SECOND: To the payment of the amounts then due and unpaid for principal of and interest (including Liquidated Damages, if any) on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and interest (including Liquidated Damages, if any), respectively; and
 
THIRD: Any remaining amounts shall be repaid to the Company.
 
Section 4.14.                            Undertaking for Costs.    All parties to this Indenture agree, and each Holder of any Security by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, 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, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in aggregate principal amount of the Outstanding Securities, or to any suit instituted by any Holder of any Security for the enforcement of the payment of the principal of or interest (including Liquidated Damages, if any) on any Security on or after the Stated Maturity expressed in such Security (or, in the case of redemption or exercise of a Purchase Right, on or after the Redemption Date) or for the enforcement of the right to convert any Security in accordance with Article 12.
 
Section 4.15.                            Waiver of Stay or Extension Laws.    The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim to take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
 
ARTICLE 5
THE TRUSTEE
 
Section 5.01.                            Certain Duties and Responsibilities.    (a) Except during the continuance of an Event of Default,
 
(i)  The Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture or the TIA, and no implied covenants or obligations shall be read into this Indenture against the Trustee; 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; provided, however, that 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 or opinions to determine whether or not, on their face, they conform to the requirements of this Indenture (but need not investigate or confirm the accuracy of any facts stated therein).
 
(b)                                In case an Event of Default actually known to a Responsible Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
 
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Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
 
(c)                                 No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
 
(i)  This paragraph (c) shall not be construed to limit the effect of paragraph (a) of this Section 5.01;
 
(ii)  The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
 
(iii)  The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with a direction received by it of the Holders of a majority in principal amount of the Outstanding Securities (or such lesser amount as shall have acted at a meeting pursuant to the provisions of this Indenture) relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.
 
(d)                                Whether or not herein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 5.01.
 
(e)                                 No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability, cost or expense (including, without limitation, reasonable fees of counsel).
 
(f)                                   The Trustee shall not be obligated to pay interest on any money or other assets received by it unless otherwise agreed in writing with the Company. Assets held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
 
(g)                                The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company, and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
 
(h)                                The Trustee shall not be deemed to have notice or actual knowledge of any Event of Default or a Registration Default (as such term is defined in the Registration Rights Agreement) or the obligation of the Company to pay Liquidated Damages unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact a Default is received by the Trustee pursuant to Section 14.02 hereof, and such notice references the Securities and this Indenture.
 
(i)                                    The rights, privileges, protections, immunities and benefits given to the Trustee hereunder, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each Paying Agent, authenticating agent, Conversion Agent or Registrar acting hereunder.
 
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Section 5.02.                            Certain Rights of Trustee.    Subject to the provisions of Section 5.01 hereof and subject to Sections 315(a) through (d) of the TIA:
 
(i)  The Trustee may rely on any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
 
(ii)  Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate, or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on the Officers’ Certificate.
 
(iii)  The Trustee may act through attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care.
 
(iv)  The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith which it reasonably believed to be authorized or within the discretion or rights or powers conferred upon it by this Indenture, unless the Trustee’s conduct constitutes negligence.
 
(v)  The Trustee may consult with counsel of its selection and the advice of such counsel as to matters of law shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
 
(vi)  Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
 
(vii)  The permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty unless so specified herein.
 
Section 5.03.                            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 any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest (as such term is defined in Section 310(b) of the TIA), it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee (to the extent permitted under Section 310(b) of the TIA) or resign. Any agent may do the same with like rights and duties. The Trustee is also subject to Section 5.11 and 5.12 hereof.
 
Section 5.04.                            Money Held in Trust.    Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise expressly agreed with the Company.
 
Section 5.05.                            Trustee’s Disclaimer.    The recitals contained herein and in the Securities (except for those in the certificate of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity, sufficiency or priority of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
 
Section 5.06.                            Notice of Defaults.    Within 90 days after the occurrence of any Default or Event of Default hereunder of which the Trustee has received written notice, the Trustee shall give notice to Holders pursuant to Section 14.02 hereof, unless such Default or Event of Default shall have been cured or waived;  provided ,  however , that, except in the case of a Default or Event of Default in the payment of the principal of or interest (including Liquidated Damages, if any), or in the payment of any redemption or purchase obligation, on any Security, the Trustee shall be protected in withholding such notice if and so long as Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders.
 
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Section 5.07.                            Reports by Trustee to Holders.    The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required by Section 313 of the TIA at the times and in the manner provided by the TIA.
 
A copy of each report at the time of its mailing to Holders shall be filed with the SEC, if required, and each stock exchange, if any, on which the Securities are listed. The Company shall promptly notify the Trustee when the Securities become listed on any stock exchange.
 
Section 5.08.                            Compensation and Indemnification.    The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee shall from time to time agree in writing and the Company covenants and agrees to pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by it or on its behalf in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all agents and other persons not regularly in its employ), except to the extent that any such expense, disbursement or advance is due to its negligence or bad faith. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 4.01 hereof, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law. The Company also covenants to indemnify the Trustee and its officers, directors, employees and agents for, and to hold such Persons harmless against, any loss, liability or expense incurred by them, arising out of or in connection with the acceptance or administration of this Indenture or the trusts hereunder or the performance of their duties hereunder, including the reasonable costs and expenses of defending themselves against or investigating any claim of liability in the premises, except to the extent that any such loss, liability or expense was due to the negligence or willful misconduct of such Persons. The obligations of the Company under this Section 5.08 to compensate and indemnify the Trustee and its officers, directors, employees and agents and to pay or reimburse such Persons for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee. Such additional indebtedness shall be a senior claim to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities, and the Securities are hereby subordinated to such senior claim. “Trustee” for purposes of this Section 5.08 shall include any predecessor Trustee, but the negligence or willful misconduct of any Trustee shall not affect the indemnification of any other Trustee.
 
Section 5.09.                            Replacement of Trustee.    A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 5.09.
 
The Trustee may resign and be discharged from the trust hereby created by so notifying the Company in writing. The Holders of at least a majority in aggregate principal amount of Outstanding Securities may remove the Trustee by so notifying the Trustee and the Company in writing. The Company must remove the Trustee if:
 
(i)  the Trustee fails to comply with Section 5.11 hereof or Section 310 of the TIA;
 
(ii)  the Trustee becomes incapable of acting;
 
(iii)  the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law; or
 
(iv)  a Custodian or public officer takes charge of the Trustee or its property.
 
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If the Trustee resigns or is removed or if a vacancy exists in the office of the Trustee for any reason, the Company shall promptly appoint a successor Trustee. The Trustee shall be entitled to payment of its fees and reimbursement of its expenses while acting as Trustee.
 
Any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee if the Trustee fails to comply with Section 5.11 hereof.
 
If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation or removal, the resigning or removed Trustee, as the case may be, may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee.
 
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. 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 Company shall mail a notice of the successor Trustee’s succession to the Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee. Notwithstanding replacement of the Trustee pursuant to this Section 5.09, the Company’s obligations under Section 5.08 hereof shall continue for the benefit of the retiring Trustee with respect to expenses, losses and liabilities incurred by it prior to such replacement.
 
Section 5.10.                            Successor Trustee by Merger, Etc..    Subject to Section 5.11 hereof, if the Trustee consolidates with, merges or converts into, or transfers or sells all or substantially all of its corporate trust business (including the administration of the trust created by this Indenture) to, another corporation or national banking association, the successor entity without any further act shall be the successor Trustee as to the Securities.
 
Section 5.11.                            Corporate Trustee Required; Eligibility.    The Trustee shall at all times satisfy the requirements of Sections 310(a)(1), (2) and (5) of the TIA. The Trustee shall at all times have (or, in the case of a corporation included in a bank holding company system, the related bank holding company shall at all times have) a combined capital and surplus of at least $100 million as set forth in its (or its related bank holding company’s) most recent published annual report of condition. The Trustee is subject to Section 310(b) of the TIA.
 
Section 5.12.                            Collection of Claims Against the Company.    The Trustee is subject to Section 311(a) of the TIA, excluding any creditor relationship listed in Section 311(b) of the TIA. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the TIA to the extent indicated therein.
 
ARTICLE 6
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
 
Section 6.01.                            Company May Consolidate, Etc., Only on Certain Terms.    The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, and the Company shall not permit any Person to consolidate with or merge into the Company or convey, transfer or lease its properties and assets substantially as an entirety to the Company, unless:
 
(i)  in the event that the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation, limited liability company, partnership or trust organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia and, if the entity surviving such transaction or transferee entity is not the Company, then such surviving or transferee entity shall expressly assume, by an indenture
 
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supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, the due and punctual payment of the principal of and interest (including Liquidated Damages, if any) on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed and shall have provided for conversion rights in accordance with Section 12.11 hereof;
 
(ii)  at the time of consummation of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; and
 
(iii)  the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Indenture and that all conditions precedent herein provided for relating to such transaction have been complied with in all material respects.
 
Section 6.02.                            Successor Substituted.    Upon any consolidation or merger by the Company with or into any other Person or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety to any Person, in accordance with Section 6.01 hereof, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease to another Person, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
 
ARTICLE 7
AMENDMENTS, SUPPLEMENTS AND WAIVERS
 
Section 7.01.                            Without Consent of Holders of Securities.    Without the consent of any Holders of Securities, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may amend this Indenture and the Securities 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)                                 make provision with respect to the conversion rights of Holders of Securities pursuant to Section 12.11 hereof;
 
(d)                                provide for the assumption of the Company’s obligations to the Holders of Securities in the case of a merger, consolidation, conveyance, transfer or lease pursuant to Article 6 hereof;
 
(e)                                 reduce the Conversion Price; provided, however, that such reduction in the Conversion Price shall not adversely affect the interest of the Holders of Securities (after taking into account tax and other consequences of such reduction) in any material respect;
 
(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 to this Indenture necessary in connection with the registration of any Securities under the Securities Act as contemplated in the Registration Rights Agreement;  provided ,  however , that such action pursuant to this clause (g) does not 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 make any other provisions with respect to matters or questions arising under this Indenture which the Company and the Trustee may deem necessary or desirable and which shall not be inconsistent with the provisions of this Indenture;
 
(i)                                    add or modify any other provisions with respect to matters or questions arising under this Indenture which the Company and the Trustee may deem necessary or desirable and which shall not be inconsistent with the provisions of this Indenture,  provided ,  however , that such action pursuant to this clause (i) does not adversely affect the interests of the Holders of Securities in any material respect; or
 
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(j)                                    make provision for the establishment of a book-entry system in which Holders would have the option to participate for the clearance and settlement of transactions in Securities originally issued in definitive form.
 
Section 7.02.                            With Consent of Holders of Securities.    Except as provided above in Section 7.01 or below in this Section 7.02, this Indenture or the Securities may be amended or supplemented, and noncompliance by the Company in any particular instance with any provision of this indenture or the Securities may be waived, in each case (i) with the written consent of the Holders of at least a majority in aggregate principal amount of the Outstanding Securities or (ii) by the adoption of a resolution, at a meeting of Holders of the Outstanding Securities at which a quorum is present, by the Holders of a majority in aggregate principal amount of the Outstanding Securities represented at such meeting.
 
Without the written consent or the affirmative vote of each Holder of Securities affected, an amendment or waiver under this Section 7.02 may not:
 
(a)                                 change the Stated Maturity of the principal of, or any installment of interest (including Liquidated Damages, if any) on, any Security;
 
(b)                                reduce the principal amount of or premium, if any, on any Security;
 
(c)                                 reduce the Interest Rate or interest (including Liquidated Damages, if any) on any Security;
 
(d)                                change the currency of payment of principal of, premium, if any, or interest (including Liquidated Damages, if any) on any Security;
 
(e)                                 impair the right of any Holder to institute suit for the enforcement of any payment on or with respect to, or the conversion of, any Security;
 
(f)                                   except as permitted by Section 12.11 hereof, adversely affect the right to convert any Security as provided in Article 12 hereof;
 
(g)                                adversely affect the Purchase Right or Put Purchase Right;
 
(h)                                modify the subordination provisions of the Securities in a manner adverse to the Holders of Securities;
 
(i)                                    modify any of the provisions of this Section, Section 4.04 or Section 4.11, except to increase any percentage contained herein or therein or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; or
 
(j)                                    reduce the requirements of Section 8.04 hereof for quorum or voting, or reduce the percentage in aggregate principal amount of the Outstanding Securities the consent of whose Holders is required for any such supplemental indenture or the consent of whose Holders is required for any waiver provided for in this Indenture.
 
It shall not be necessary for any Act of Holders of Securities under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
 
Section 7.03.                            Compliance with Trust Indenture Act.    Every amendment to this Indenture or the Securities shall be set forth in a supplemental indenture that complies with the TIA as then in effect.
 
Section 7.04.                            Revocation of Consents and Effect of Consents or Votes.    Until an amendment, supplement or waiver becomes effective, a written consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security;  provided ,  however , that unless a record date shall have been established, any such Holder or subsequent
 
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Holder may revoke the consent as to its Security or portion of a Security if the Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effective.
 
An amendment, supplement or waiver becomes effective on receipt by the Trustee of written consents from or affirmative votes by, as the case may be, the Holders of the requisite percentage of aggregate principal amount of the Outstanding Securities, and thereafter shall bind every Holder of Securities;  provided ,  however , if the amendment, supplement or waiver makes a change described in any of clauses (a) through (j) of Section 7.02 hereof, the amendment, supplement or waiver shall bind only each Holder of a Security which has consented to it or voted for it, as the case may be, and every subsequent Holder of a Security or portion of a Security that evidences the same indebtedness as the Security of the consenting or affirmatively voting, as the case may be, Holder.
 
Section 7.05.                            Notation on or Exchange of Securities.    If an amendment, supplement or waiver changes the terms of a Security:
 
(a)                                 the Trustee may require the Holder of a Security to deliver such Security to the Trustee, the Trustee may place an appropriate notation on the Security about the changed terms and return it to the Holder and the Trustee may place an appropriate notation on any Security thereafter authenticated; or
 
(b)                                if the Company or the Trustee so determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security that reflects the changed terms.
 
Failure to make the appropriate notation or issue a new Security shall not affect the validity and effect of such amendment, supplement or waiver.
 
Section 7.06.                            Trustee to Sign Amendment, Etc.    The Trustee shall sign any supplement or amendment authorized pursuant to this Article 7 if the amendment does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If the supplement or amendment does adversely affect the rights, duties, liabilities or immunities of the Trustee, the Trustee may but need not sign it. In signing or refusing to sign such supplement or amendment, the Trustee shall be entitled to receive and shall be fully protected in relying upon an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that such amendment is authorized or permitted by this Indenture.
 
ARTICLE 8
MEETING OF HOLDERS OF SECURITIES
 
Section 8.01.                            Purposes for Which Meetings May Be Called.    A meeting of Holders of Securities may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities.
 
Notwithstanding anything contained in this Article 8, the Trustee may, during the pendency of a Default or an Event of Default, call a meeting of Holders of Securities in accordance with its standard practices.
 
Section 8.02.                            Call Notice and Place of Meetings.    (a) The Trustee may at any time call a meeting of Holders of Securities for any purpose specified in Section 8.01 hereof, to be held at such time and at such place in The City of New York. Notice of every meeting of Holders of Securities, setting forth the time and the place of such meeting, in general terms the action proposed to be taken at such meeting and the percentage of the principal amount of the Outstanding Securities which shall constitute a quorum at such meeting, shall be given, in the manner provided in Section 14.02 hereof, not less than 21 nor more than 180 days prior to the date fixed for the meeting.
 
(b)                                In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Securities shall have requested the Trustee to call a meeting of the Holders of Securities for any purpose specified in Section 8.01 hereof, by written
 
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request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities in the amount specified, as the case may be, may determine the time and the place in The City of New York for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a) of this Section.
 
Section 8.03.                            Persons Entitled to Vote at Meetings.    To be entitled to vote at any meeting of Holders of Securities, a Person shall be (a) a Holder of one or more Outstanding Securities on the Record Date pertaining to such meeting or (b) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities by such Holder or Holders on the Record Date pertaining to such meeting. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
 
Section 8.04.                            Quorum; Action.    The Persons entitled to vote a majority in principal amount of the Outstanding Securities shall constitute a quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities, be dissolved. In any other case, the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 8.02(a) hereof, except that such notice need be given only once and not less than five days prior to the date on which the meeting is scheduled to be reconvened.
 
At a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid, any resolution and all matters (except as limited by the second paragraph of Section 7.02 hereof) shall be effectively passed and decided if passed or decided by the Persons entitled to vote not less than a majority in principal amount of Outstanding Securities represented and voting at such meeting.
 
Any resolution passed or decisions taken at any meeting of Holders of Securities duly held in accordance with this Section shall be binding on all the Holders of Securities, whether or not present or represented at the meeting.
 
Section 8.05.                            Determination of Voting Rights; Conduct and Adjournment of Meetings.    (a) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities in regard to proof of the holding of Securities and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.
 
(b)                                The Trustee shall, by an instrument in writing, appoint a temporary chairman (which may be the Trustee) of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 8.02(b) hereof, in which case the Company or the Holders of Securities calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities represented at the meeting.
 
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(c)                                 At any meeting, each Holder of a Security or proxy shall be entitled to one vote for each $1,000 principal amount of Securities held or represented by it;  provided ,  however , that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security or proxy.
 
(d)                                Any meeting of Holders of Securities duly called pursuant to Section 8.02 hereof at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities represented at the meeting, and the meeting may be held as so adjourned without further notice.
 
Section 8.06.                            Counting Votes and Recording Action of Meetings.    The vote upon any resolution submitted to any meeting of Holders of Securities shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 8.02 hereof and, if applicable, Section 8.04 hereof. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
 
ARTICLE 9
COVENANTS
 
Section 9.01.                            Payment of Principal and Interest.    The Company will duly and punctually pay the principal of and interest (including Liquidated Damages, if any) on the Securities in accordance with the terms of the Securities and this Indenture. The Company will deposit or cause to be deposited with the Trustee as directed by the Trustee, no later than the day of the Stated Maturity of any Security or installment of interest (including Liquidated Damages, if any), all payments so due.
 
Section 9.02.                            Maintenance of Offices or Agencies.    The Company hereby appoints the Trustee’s Corporate Trust Office as its office in The City of New York where Securities may be:
 
(i)  presented or surrendered for payment;
 
(ii)  surrendered for registration of transfer or exchange;
 
(iii)  surrendered for conversion;
 
and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served.
 
The Company may at any time and from time to time vary or terminate the appointment of any such office or appoint any additional offices for any or all of such purposes;  provided ,  however , that until all of the Securities have been delivered to the Trustee for cancellation, or moneys sufficient to pay the principal of and interest (including Liquidated Damages, if any) on the Securities have been made available for payment and either paid or returned to the Company pursuant to the provisions of Section 9.03 hereof, the Company will maintain in The City of New York, an office or agency where
 
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Securities may be presented or surrendered for payment, where Securities may be surrendered for registration of transfer or exchange, where Securities may be surrendered for conversion and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company will give prompt written notice to the Trustee, and notice to the Holders in accordance with Section 14.02 hereof, of the appointment or termination of any such agents and of the location and any change in the location of any such office or agency.
 
If at any time the Company shall fail to maintain any such required office or agency in The City of New York, or shall fail to furnish the Trustee with the address thereof, presentations and surrenders may be made at, and notices and demands may be served on, the Corporate Trust Office of the Trustee.
 
Section 9.03.                            Corporate Existence.    Subject to Article 6 hereof, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided ,  however , that the Company shall not be required to preserve any such right or franchise if the Company determines that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders.
 
Section 9.04.                            Reports.    (a) The Company shall make available to the Trustee within 15 days after it files them with the SEC copies of the annual and quarterly reports and other information, documents and other reports deemed “filed” for the purposes of Section 18 of the Exchange Act or incorporated by reference in any filing under the Securities Act or the Exchange Act (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;  provided , however , that the Company shall not be required to deliver to the Trustee any materials for which the Company has sought and received confidential treatment by the SEC. The Company also shall comply with the other provisions of Section 314(a) of the TIA.
 
(b)                                If at any time the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the request of a Holder of a Security, the Company will promptly furnish or cause to be furnished to such Holder or to a prospective purchaser of such Security designated by such Holder, as the case may be, the information, if any, required to be delivered by it pursuant to Rule 144A(d)(4) under the Securities Act to permit compliance with Rule 144A in connection with the resale of such Security; provided ,  however , that the Company shall not be required to furnish such information in connection with any request made on or after the date which is two years from the later of the date such Security was last acquired from the Company or an Affiliate of the Company.
 
Section 9.05.                            Compliance Certificate.    The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an Officers’ Certificate stating whether or not the signer thereof has knowledge of any failure by the Company to comply with all conditions and covenants then required to be performed under this Indenture and, if so, specifying each such failure and the nature thereof. Within five Business Days of an Officer of the Company coming to have actual knowledge of a Default, regardless of the date, the Company shall deliver an Officers’ Certificate to the Trustee specifying such Default and the nature and status thereof.
 
Section 9.06.                            Liquidated Damages.    If Liquidated Damages are payable by the Company pursuant to the Registration Rights Agreement, the Company shall deliver to the Trustee an Officers’ Certificate to that effect stating (i) the amount of such Liquidated Damages that are payable, (ii) the reason why such Liquidated Damages are payable and (iii) the date on which such damages are payable. Unless and until a Responsible Officer of the Trustee receives such an Officers’ Certificate, the Trustee may assume without inquiry that no Liquidated Damages are payable. If the Company has paid Liquidated Damages directly to the persons entitled to such amounts, the Company shall deliver to the Trustee a certificate setting forth the particulars of such payment.
 
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ARTICLE 10
REDEMPTION OF SECURITIES
 
Section 10.01.                      Optional Redemption.    The Securities are not redeemable prior to May 15, 2011. On and after May 15, 2011, the Company may, at its option, redeem the Securities in whole at any time or in part from time to time, on any date prior to maturity, upon notice as set forth in Section 10.04, at a redemption price equal to 100% of the principal amount of the Securities (the “ Optional Redemption Price ”), plus any interest accrued (including Liquidated Damages, if any) but not paid prior to, but excluding, the Optional Redemption Date.
 
Section 10.02.                      Notice to Trustee.    If the Company elects to redeem Securities pursuant to the redemption provisions of Section 10.01 hereof, it shall notify the Trustee at least 30 days prior to the Redemption Date of such intended Redemption Date, the principal amount of Securities to be redeemed and the CUSIP numbers of the Securities to be redeemed.
 
Section 10.03.                      Selection of Securities to be Redeemed.    If fewer than all the Securities are to be redeemed, the Trustee shall select the particular Securities to be redeemed from the Outstanding Securities by a method that complies with the requirements of any exchange on which the Securities are listed, or, if the Securities are not listed on an exchange, on a pro rata basis or by lot or in accordance with any other method the Trustee considers fair and appropriate. Securities and portions thereof that the Trustee selects shall be in amounts equal to the minimum authorized denominations for Securities to be redeemed or any multiple thereof.
 
If any Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed to be the portion selected for redemption ( provided ,  however , that the Holder of such Security so converted and deemed redeemed shall not be entitled to any additional interest payment as a result of such deemed redemption than such Holder would have otherwise been entitled to receive upon conversion of such Security). 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.
 
The Trustee shall promptly notify the Company and the Registrar in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
 
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
 
Section 10.04.                      Notice of Redemption.    Notice of redemption shall be given in the manner provided in Section 14.02 hereof to the Holders of Securities to be redeemed. Such notice shall be given not less than 30 or more than 60 days prior to the Redemption Date.
 
All notices of redemption shall state:
 
(1)                                  the Redemption Date;
 
(2)                                  the Redemption Price and interest accrued and unpaid to, but excluding, the Redemption Date, if any;
 
(3)                                  if fewer than all the Outstanding Securities are to be redeemed, the aggregate principal amount of Securities to be redeemed and the aggregate principal amount of Securities which will be Outstanding after such partial redemption;
 
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(4)                                  that on the Redemption Date the Redemption Price and interest accrued and unpaid to, but excluding, the Redemption Date, if any, will become due and payable upon each such Security to be redeemed, and that interest thereon shall cease to accrue on and after such date;
 
(5)                                  the Conversion Price, the date on which the right to convert the principal of the Securities to be redeemed will terminate and the places where such Securities may be surrendered for conversion;
 
(6)                                  the place or places where such Securities are to be surrendered for payment of the Redemption Price and accrued and unpaid interest, if any; and
 
(7)                                  the CUSIP number of the Securities.
 
The notice given shall specify the last date on which exchanges or transfers of Securities may be made pursuant to Section 2.07 hereof, and shall specify the serial numbers of Securities and the portions thereof called for redemption.
 
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name of and at the expense of the Company.
 
Section 10.05.                      Effect of Notice of Redemption.    Notice of redemption having been given as provided in Section 10.04 hereof, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued and unpaid interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with such notice, such Security shall be paid by the Company at the Redemption Price plus accrued and unpaid interest, if any;  provided ,  however , that the installments of interest on Securities whose Stated Maturity is prior to or on the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such on the relevant Record Date according to their terms and the provisions of Section 2.01 hereof.
 
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid, bear interest from the Redemption Date at the Interest Rate.
 
Section 10.06.                      Deposit of Redemption Price.    Prior to or on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent an amount of money sufficient to pay the Redemption Price of all the Securities to be redeemed on that Redemption Date, other than any Securities called for redemption on that date which have been converted prior to the date of such deposit, and accrued and unpaid interest, if any, on such Securities.
 
If any Security called for redemption is converted, any money deposited with the Trustee or with a Paying Agent or so segregated and held in trust for the redemption of such Security shall (subject to any right of the Holder of such Security or any Predecessor Security to receive interest as provided in the fourth to last paragraph of Section 2.01 hereof) be paid to the Company on Company Request or, if then held by the Company, shall be discharged from such trust.
 
Section 10.07.                      Securities Redeemed in Part.    Any Security which is to be redeemed only in part shall be surrendered at an office or agency of the Company designated for that purpose pursuant to Section 9.02 hereof (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 the Holder’s attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
 
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Section 10.08.                      Conversion Arrangement On Call For Redemption.    In connection with any redemption of Securities, the Company may arrange for the purchase and conversion of any Securities called for redemption by an agreement with one or more investment banks or other purchasers to purchase such Securities by paying to the Trustee in trust for the Holders of the Securities, on or prior to 10:00 a.m. New York City time on the Redemption Date, an amount that, together with any amounts deposited with the Trustee by the Company for the redemption of such Securities, is not less than the Redemption Price of, and any accrued and unpaid interest (including Liquidated Damages, if any) with respect to, such Securities. Notwithstanding anything to the contrary contained in this Article 10, the obligation of the Company to pay the Redemption Prices of such Securities shall be deemed to be satisfied and discharged to the extent such amount is so paid by such purchasers. If such an agreement is entered into, any Securities not duly surrendered for conversion by the Holders thereof may, at the option of the Company, be deemed, to the fullest extent permitted by law, acquired by such purchasers from such Holders and surrendered by such purchasers for conversion, all as of immediately prior to the close of business on the Business Day prior to the Redemption Date, subject to payment of the above amount as aforesaid. The Trustee shall hold and pay to the Holders whose Securities are selected for redemption any such amount paid to it for purchase and conversion in the same manner as it would moneys deposited with it by the Company for the redemption of Securities. Without the Trustee’s prior written consent, no arrangement between the Company and such purchasers for the purchase and conversion of any Securities shall increase or otherwise affect any of the powers, duties, responsibilities or obligations of the Trustee as set forth in this Indenture, and the Company agrees to indemnify the Trustee from, and hold it harmless against, any loss, liability or expense arising out of or in connection with any such arrangement for the purchase and conversion of any Securities between the Company and such purchasers, including the costs and expenses incurred by the Trustee in the defense of any claim or liability arising out of or in connection with the exercise or performance of any of its powers, duties, responsibilities or obligations under this Indenture.
 
ARTICLE 11
PURCHASE OF SECURITIES
 
Section 11.01.                      Purchase Right Upon Fundamental Change.    (a) In the event that a Fundamental Change shall occur, each Holder shall have the right (the “ Purchase Right ”), at the Holder’s option to require the Company to purchase, and upon the exercise of such right in accordance with Section 11.03 hereof 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 any multiple thereof ( provided ,  however , that no single Security may be purchased in part unless the portion of the principal amount of such Security to be Outstanding after such purchase is equal to $1,000 or multiples thereof), on the date (the “ Purchase Date ”) that is 45 days after the date of the Company Notice at a purchase price equal to 100% of the principal amount of the Securities to be purchased (the “ Purchase Price ”), plus interest accrued (including Liquidated Damages, if any) and unpaid to, but excluding, the Purchase Date;  provided ,  however , that installments of interest on Securities whose Stated Maturity is prior to or on the Purchase Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such on the relevant Record Date according to their terms and the provisions of Section 2.01 hereof.
 
(b)                                Whenever in this Indenture (including Sections 2.02, 4.01(a) and 4.07 hereof) or Exhibit A annexed hereto there is a reference, in any context, to the principal of any Security as of any time, such reference shall be deemed to include reference to the Purchase Price or the Put Purchase Price, as the case may be, payable in respect to such Security to the extent that such Purchase Price or the Put Purchase Price, as the case may be, is, was or would be so payable at such time, and express mention of the Purchase Price or the Put Purchase Price, as the case may be, in any provision of this Indenture shall not be construed as excluding the Purchase Price or the Put Purchase Price, as the case may be, in those provisions of this Indenture when such express mention is not made;  provided ,  however , that
 
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for the purposes of Article 13 hereof, such reference shall be deemed to include reference to the Purchase Price or the Put Purchase Price, as the case may be, only to the extent the Purchase Price or the Put Purchase Price, as the case may be, is payable in cash.
 
Section 11.02.                      Purchase of Securities by the Company at Option of the Holder.    (a)    General.    Each Holder shall have the right to require the Company to purchase all or a portion of its Securities on May 15, 2011, May 15, 2014 and May 15, 2019 (or, if any such date is not a Business Day, on the immediately succeeding Business Day) (each, a “ Put Purchase Date ”), at 100% of the principal amount of the Securities to be so purchased, plus accrued and unpaid interest, if any, (including Liquidated Damages, if any) to, but excluding, such Put Purchase Date (the “ Put Purchase Price ”).
 
(b)                                Company Notice.    On or before the twenty-third (23rd) Business Day prior to each Put Purchase Date, the Company shall provide to the Trustee, the Paying Agent and to all Holders at their respective addresses as shown on the Register, and to beneficial owners of the Securities where required by applicable law, a notice stating, among other things:
 
(i)  the name and address of the Trustee, the Paying Agent and the Conversion Agent; and
 
(ii)  the procedures the Holders must follow to require the Company to purchase their Securities.
 
Simultaneously with providing such notice, the Company shall publish a notice containing this information in a newspaper of general circulation in The City of New York or publish the information on the Company’s website or through such other public medium as the Company may use at that time.
 
(c)                                 Conditions to the Company’s Obligation to Purchase.    The Company will be required to purchase only Securities with respect to which each of the following conditions has been satisfied:
 
(i)  delivery to the Paying Agent by the Holder of a written notice of purchase (a “Purchase Notice”) during the period beginning at any time from the opening of business on the date that is twenty-three (23) Business Days prior to the relevant Put Purchase Date until the close of business on the third (3rd) Business Day prior to such Put Purchase Date stating:
 
(A)               the applicable Depositary procedures or, in the case of Physical Securities, the certificate number(s) of the Holder’s Securities to be delivered for purchase;
 
(B)                 the portion of the principal amount of Securities to be purchased, in multiples of $l,000; and
 
(C)                 that the Securities are to be purchased by the Company pursuant to paragraph 6(b) of the Securities and this Section 11.02;
 
(ii)  delivery of such Securities to the Trustee or Paying Agent prior to, on or after the Put Purchase Date (together with all necessary endorsements); and
 
(iii)  there shall not have occurred and be continuing an Event of Default, other than an Event of Default that is cured with respect to all Securities by the payment of the Put Purchase Price.
 
(d)                                Withdrawal of Purchase Notice.    A Holder may withdraw any Purchase Notice in whole or in part by a written notice of withdrawal delivered to the Trustee or the Paying Agent prior to the close of business on the third (3rd) Business Day prior to the applicable Put Purchase Date. The notice of withdrawal must state:
 
(i)  the principal amount of the withdrawn Securities;
 
(ii)  with respect to Physical Securities, the certificate number(s) of the withdrawn Securities; and
 
(iii)  the principal amount of Securities, if any, which remains subject to the Purchase Notice.
 
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The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written notice of withdrawal thereof.
 
The Put Purchase Price shall be so paid pursuant to this Section 11.02 only if the Securities so delivered by the Holder conform in all respects to the description thereof in the related Purchase Notice, as determined by the Company in its sole discretion.
 
(e)                                 Payment of Put Purchase Price by the Company; Effect on Holders of Purchased Securities.    The Company shall pay the Put Purchase Price to the Paying Agent promptly following the later of the relevant Put Purchase Date or the time of book-entry transfer or delivery of the purchased Securities. If either the Trustee or the Paying Agent holds money or securities sufficient to pay the Put Purchase Price on the Business Day immediately following the relevant Put Purchase Date, then:
 
(i)  the purchased Securities will cease to be Outstanding and interest will cease to accrue (whether or not book-entry transfer of the purchased Securities is made or whether or not the purchased Securities are delivered to the Paying Agent); and
 
(ii)  all other rights of the Holders of such purchased Securities will terminate (other than the right to receive the Put Purchase Price upon delivery or transfer of such purchased Securities).
 
Section 11.03.                      Fundamental Change Notices; Method of Exercising Purchase Right, Etc.    (a) Unless the Company shall have theretofore called for redemption all of the Outstanding Securities, prior to or on the 30th day after the occurrence of a Fundamental Change, the Company, or, at the written request and expense of the Company prior to or on the 30th day after such occurrence, the Trustee shall give to all Holders of Securities notice, in the manner provided in Section 14.02 hereof, of the occurrence of the Fundamental Change and of the Purchase Right set forth herein arising as a result thereof (the “ Company Notice ”). The Company shall also deliver a copy of such notice of a Purchase Right to the Trustee. Each notice of a Purchase Right shall state:
 
(i)  the Purchase Date;
 
(ii)  the date by which the Purchase Right must be exercised;
 
(iii)  the Purchase Price and accrued and unpaid interest, if any;
 
(iv)  a description of the procedure which a Holder must follow to exercise a Purchase Right, and the place or places where such Securities, are to be surrendered for payment of the Purchase Price and accrued and unpaid interest, if any;
 
(v)  that on the Purchase Date the Purchase Price and accrued and unpaid interest, if any, will become due and payable upon each such Security designated by the Holder to be purchased, and that interest thereon shall cease to accrue on and after said date;
 
(vi)  the conversion rate then in effect, the date on which the right to convert the principal amount of the Securities to be purchased will terminate and the place where such Securities may be surrendered for conversion; and
 
(vii)  the place or places where such Securities, together with the Notice of Exercise of Purchase Right certificate included in Exhibit A annexed hereto are to be delivered for payment of the Purchase Price and accrued and unpaid interest, if any.
 
No failure of the Company to give the foregoing notices or defect therein shall limit any Holder’s right to exercise a Purchase Right or affect the validity of the proceedings for the purchase of Securities.
 
If any of the foregoing provisions or other provisions of this Article 11 are inconsistent with applicable law, such law shall govern.
 
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(b)                                To exercise a Purchase Right, a Holder shall deliver to the Trustee prior to or on the 30th day after the date of the Company Notice:
 
(i)  written notice (“Fundamental Change Purchase Notice”) of the Holder’s exercise of such right in the form of the Notice of Exercise of Purchase Right certificate included in Exhibit A annexed hereto, which notice shall set forth the name of the Holder, the principal amount of the Securities to be purchased (and, if any Security is to be purchased in part, the serial number thereof, the portion of the principal amount thereof to be purchased) and a statement that an election to exercise the Purchase Right is being made thereby, and
 
(ii)  applicable Depository procedures or, in the case of Physical Securities, the certificate number(s) of the Holder’s Securities with respect to which the Purchase Right is being exercised.
 
Such written notice shall be irrevocable, except that the right of the Holder to convert the Securities with respect to which the Purchase Right is being exercised shall continue until the close of business on the Business Day immediately preceding the Purchase Date.
 
(c)                                 In the event a Purchase Right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Purchase Price in cash for payment to the Holder on the Purchase Date as promptly after the Purchase Date as practicable, together with accrued and unpaid interest to the Purchase Date payable in cash with respect to the Securities as to which the Purchase Right has been exercised;  provided ,  however , that installments of interest that mature prior to or on the Purchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
 
(d)                                If any Security (or portion thereof) surrendered for purchase shall not be so paid on the Purchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the Purchase Date at the Interest Rate, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
 
(e)                                 Any Security which is to be purchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unpurchased portion of the principal of the Security so surrendered.
 
(f)                                   All Securities delivered for purchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.15 hereof.
 
ARTICLE 12
CONVERSION OF SECURITIES
 
Section 12.01.                      Conversion Right and Conversion Rate.    (a) Subject to and upon: (i) compliance with the provisions of this Article and (ii) the occurrence of one or more of the conditions set forth in paragraph 7(d) of the Securities, at the option of the Holder thereof, any Security or any portion of the principal amount thereof which is $1,000 or a multiple of $1,000 may be converted at the principal amount thereof, or of such portion thereof, into the number of duly authorized, fully paid and nonassessable shares of Common Stock at the Conversion Rate in effect at the time of conversion. Such conversion right shall expire at the close of business on May 15, 2024.
 
(b)                                In case a Security or portion thereof is called for redemption, such conversion right in respect of the Security or the portion so called, shall expire at the close of business on the Business Day
 
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immediately preceding the Redemption Date, unless the Company defaults in making the payment due upon redemption. If a Holder exercises its Purchase Right or Put Purchase Right with respect to a Security or portion thereof, such conversion right in respect of the Security or portion thereof shall expire at the close of business on the Business Day preceding the Purchase Date or Put Purchase Date, as applicable.
 
(c)                                 Each $1,000 principal amount of the Securities shall be convertible into 41.0627 shares of Common Stock (herein called the “ Conversion Rate ”), subject to adjustment in certain instances as provided in paragraphs (a), (b), (c), (d), (e), (f), (h) and (m) of Section 12.04 hereof.
 
Section 12.02.                      Exercise of Conversion Right.    To exercise the conversion right, the Holder of any Security to be converted shall surrender such Security duly endorsed or assigned to the Company or in blank, at the office of any Conversion Agent, accompanied by a duly signed conversion notice substantially in the form attached to the Security to the Company stating that the Holder elects to convert such Security or, if less than the entire principal amount thereof is to be converted, the portion thereof to be converted.
 
Any Holder which surrenders any Security for conversion during the period between the close of business on any Regular Record Date and ending with the opening of business on the corresponding interest Payment Date (except in the case of any Security whose Maturity is prior to such Interest Payment Date) shall be accompanied by payment in New York Clearing House funds or other funds acceptable to the Company of an amount equal to the interest (excluding Liquidated Damages, if any) to be received on such interest Payment Date on the principal amount of the Security being surrendered for conversion (but excluding any Defaulted Interest on the principal amount of such Security so converted that exists at the time such Holder surrenders such Security for conversion). Notwithstanding the foregoing, any such Holder which surrenders for conversion any Security (a) which has been called for redemption by the Company in a notice of redemption given by the Company pursuant to Section 10.04 hereof on a Redemption Date after such Regular Record Date and on or prior to the next succeeding interest Payment Date or (b) with respect to which the Company has specified a Purchase Date that is after such Regular Record Date and on or prior to the next succeeding Interest Payment Date, in either case, need not pay the Company an amount equal to the interest in the principal amount of such Security so converted at the time such Holder surrenders such Security for conversion.
 
Securities shall be deemed to have been converted immediately prior to the close of business on the day of surrender of such Securities for conversion in accordance with the foregoing provisions, and at such time the rights of the Holders of such Securities as Holders shall cease, and the Person or Persons entitled to receive the Common Stock issuable upon conversion shall be treated for all purposes as the record holder or holders of such Common Stock at such time. Except as provided above in this Section 12.02, no adjustment shall be made for interest and Liquidated Damages, if any, accrued on any Security converted or for dividends on any shares issued upon the conversion of such Security as provided in this Article 12. As promptly as practicable on or after the conversion date, but in no event later than the fifth Business Day thereafter, the Company shall cause to be issued and delivered to such Conversion Agent a certificate or certificates for the number of full shares of Common Stock issuable upon conversion, together with payment in lieu of any fraction of a share as provided in Section 12.03 hereof.
 
In the case of any Security which is converted in part only, upon such conversion the Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of authorized denominations in aggregate principal amount equal to the unconverted portion of the principal amount of such Securities.
 
If shares of Common Stock to be issued upon conversion of a Restricted Security, or Securities to be issued upon conversion of a Restricted Security in part only, are to be registered in a name other than that of the Holder of such Restricted Security, such Holder must deliver to the Conversion Agent a certificate in substantially the form set forth in the form of Security set forth in  Exhibit A  annexed hereto, 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. Neither the Trustee nor any Conversion Agent, Registrar or Transfer Agent shall be required to register in a name other than that of the Holder shares of Common Stock or Securities issued upon conversion of any such Restricted Security not so accompanied by a properly completed certificate.
 
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The Company hereby initially appoints the Trustee as the Conversion Agent.
 
Section 12.03.                      Fractions of Shares.    No fractional shares of Common Stock shall be issued upon conversion of any Security or Securities. If more than one Security shall be surrendered for conversion at one time by the same Holder, the number of full shares which shall be issued upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) so surrendered. Instead of any fractional share of Common Stock which would otherwise be issued upon conversion of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Quoted Price of the Common Stock as of the Trading Day preceding the date of conversion.
 
Section 12.04.                      Adjustment of Conversion Rate.    The Conversion Rate shall be subject to adjustments, calculated by the Company, from time to time as follows:
 
(a)                                 In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
 
(i)  the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date (as defined in Section 12.04(g)) fixed for such determination plus the total number of shares constituting such dividend or other distribution, and
 
(ii)  the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on such Record Date fixed for such determination.
 
Such increase shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this Section 12.04(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 outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
 
(c)                                 In case the Company shall issue rights or warrants (other than any rights or warrants referred to in Section 12.04(d)) to all holders of its outstanding shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a conversion price per share) less than the Current Market Price (as defined in Section 12.04(g)) on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the date after such Record Date 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 Record Date plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible), and
 
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(ii)  the denominator of which shall be the number of shares of Common Stock outstanding on the close of business on the Record Date plus the number of shares which the aggregate offering price of the total number of shares so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price.
 
Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock (or securities convertible into 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 into 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 such date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. Notwithstanding the foregoing, after a period of 60 days from the date of issuance 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 into Common Stock) actually delivered during such period. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Current Market 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)                                In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock of the Company (other than any dividends or distributions to which Section 12.04(a) applies) or evidences of its indebtedness, cash or other assets, including securities, but excluding (1) any rights or warrants referred to in Section 12.04(c), (2) any stock, securities or other property or assets (including cash) distributed in connection with a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 12.11 hereof applies and (3) dividends and distributions paid exclusively in cash (the securities described in foregoing clauses (1), (2) and (3) hereinafter in this Section 12.04(d) called the “ securities ”), then, in each such case, subject to the second succeeding paragraph of this Section 12.04(d), the Conversion Rate shall be increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date (as defined in Section 12.04(g)) with respect to such distribution by a fraction:
 
(i)  the numerator of which shall be the Current Market Price (determined as provided in Section 12.04(g)) on such date, and
 
(ii)  the denominator of which shall be such Current Market Price on such date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and set forth in a Board Resolution) on such date of the portion of the shares of capital stock, evidences of indebtedness, cash or other assets, including securities, so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the Record Date).
 
Such increase shall become effective immediately prior to the opening of business on the day following the Record Date. However, in the event that the then fair market value (as so determined) of the portion of the securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion
 
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of a Security (or any portion thereof) the amount of shares of capital stock, evidences of indebtedness, cash or other assets, including securities, such Holder would have received had such Holder converted such Security (or portion thereof) immediately prior to such Record Date. 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.
 
If the Board of Directors determines the fair market value of any distribution for purposes of this Section 12.04(d) by reference to the actual or when issued trading market for any securities 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 12.04(g) to the extent possible, unless the Board of Directors in a Board Resolution determines in good faith that determining the fair market value during the Reference Period would not be in the best interest of the Holder.
 
Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company’s capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“ Trigger Event ”):
 
(i)  are deemed to be transferred with such shares of Common Stock,
 
(ii)  are not exercisable, and
 
(iii)  are also issued in respect of future issuances of Common Stock
 
shall be deemed not to have been distributed for purposes of this Section 12.04(d) (and no adjustment to the Conversion Rate under this Section 12.04(d) will 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 securities, 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 12.04(d):
 
(1)                                  in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of Common Stock with respect to such rights or warrant (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and
 
(2)                                  in the case of such rights or warrants all of 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.
 
For purposes of this Section 12.04(d) and Section 12.04(a), 12.04(b) and 12.04(c), any dividend or distribution to which this Section 12.04(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which Section 12.04(b) applies, or rights or warrants
 
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to subscribe for or purchase shares of Common Stock to which Section 12.04(c) applies (or any combination thereof), shall be deemed instead to be:
 
(1)                                  a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such shares of Common Stock, such subdivision or combination or such rights or warrants to which Section 12.04(a), 12.04(b) and 12.04(c) apply, respectively (and any Conversion Rate increase required by this Section 12.04(d) with respect to such dividend or distribution shall then be made), immediately followed by
 
(2)                                  a dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Rate increase required by Section 12.04(a), 12.04(b) and 12.04(c) with respect to such dividend or distribution shall then be made), except:
 
(A)      the Record Date of such dividend or distribution shall be substituted as (x) ”the date fixed for the determination of stockholders entitled to receive such dividend or other distribution”, “Record Date fixed for such determination” and “Record Date” within the meaning of Section 12.04(a), (y) ”the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of Section 12.04(b), and (z) ”the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants,” such “Record Date,” “the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants” and “such dated fixed for the determination of stockholders entitled to receive such rights or warrants” within the meaning of Section 12.04(c), and
 
(B)        any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding at the close of business on the Record Date fixed for such determination” within the meaning of Section 12.04(a) and 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, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 12.11 hereof applies or as part of a distribution referred to in Section 12.04(d) hereof), then and in each such case, immediately after the close of business on the Record Date with respect to such distribution, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction:
 
(i)  the numerator of which shall be equal to the Current Market Price on the Record Date, and
 
(ii)  the denominator of which shall be equal to the Current Market Price on such date less an amount equal to the quotient of (x) the aggregate amount of the cash distribution and (y) the number of shares of Common Stock outstanding on the Record Date.
 
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.
 
(f)                                   In case a tender or exchange offer made by the Company or any of its subsidiaries for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of Purchased Shares (as defined below)) of an aggregate consideration per share having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and set forth in a Board Resolution) that
 
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combined together with the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and set forth in a Board Resolution), as of the expiration of the other tender or exchange offer referred to below, of consideration per share payable in respect of any other tender or exchange offers by the Company or any of its subsidiaries for all or any portion of the Common Stock expiring within the preceding 12 months and in respect of which no adjustment pursuant to this Section 12.04(f) has been made, exceeds the Closing Price of a share of Common Stock on the Trading Day next succeeding the last time (the “ Expiration Time ”) tenders could have been made pursuant to such tender or exchange offer, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, 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 close of business on the date of the Expiration Time by a fraction:
 
(i)  the numerator of which shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “ Purchased Shares ”) and (y) the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time multiplied by the Closing Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and
 
(ii)  the denominator shall be the product of the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the Expiration Time and the Closing Price of the Common Stock on the Trading Day next succeeding the Expiration Time.
 
Such increase (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, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender or exchange offer had not been made. If the application of this Section 12.04(f) to any tender or exchange offer would result in a decrease in the Conversion Rate, no adjustment shall be made for such tender or exchange offer under this Section 12.04(f).
 
(g)                                For purposes of this Section 12.04, the following terms shall have the meanings indicated:
 
(1)                                 “Current Market Price” shall mean the average of the daily Closing Prices per share of Common Stock for the ten consecutive Trading Days immediately prior to the date in question;  provided ,  however , that if 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 12.04(a), (b), (c), (d), (e) or (f) occurs during such ten consecutive Trading Days, “ Current Market Price ” shall be calculated for such period in a manner determined in good faith by the Board of Directors to reflect the impact of such event on the Closing Price of the Common Stock during such period.
 
For purposes of this paragraph, the term “ex” date, when used:
 
(A)                                           with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way on the relevant exchange or in the relevant market from which the Closing Price was obtained without the right to receive such issuance or distribution;
 
(B)                                              with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective, and
 
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(C)                                              with respect to any tender or exchange offer, means the first date on which the Common Stock trades 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 12.04, such adjustments shall be made to the Current Market Price as may be necessary or appropriate to effectuate the intent of this Section 12.04 and to avoid unjust or inequitable results as determined in good faith by the Board of Directors.
 
(1)               “fair market value” shall mean the amount which a willing buyer would pay a willing seller in an arm’s length transaction.
 
(2)               “Record Date” shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of 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 may make such increases in the Conversion Rate, in addition to those required by Section 12.04(a), (b), (c), (d), (e) or (f), as the Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes.
 
To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least 20 days and the increase is irrevocable during the period and the Board of Directors determines in good faith that such increase would be in the best interests of the Company, which determination shall be conclusive and set forth in a Board Resolution. 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 a notice of the reduction at least 15 days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
 
(i)                                    No adjustment in the Conversion Rate shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price;  provided ,  however , that any adjustments which by reason of this Section 12.04(i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment and, in any case, such adjustment will become effective at the time the Company delivers a notice of redemption. Except as otherwise provided in this Article 12, no adjustment need be made for the issuance of Common Stock or any securities convertible into or exchangeable for Common Stock or that carry the right to purchase any of the foregoing. All calculations under this Article 12 shall be made by the Company and shall be made to the nearest cent or to the nearest one hundredth of a share, as the case may be. No adjustment need be made for a change in the par value or no par value of the Common Stock.
 
(j)                                    To the extent the Holders of Securities may participate on an as-converted basis equally with the holders of Common Stock in any event or occurrence, then Section 12.04 hereof shall not apply to such event on occurrence.
 
(k)                                 In any case in which this Section 12.04 provides that an adjustment shall become effective immediately after a Record Date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Security converted after such Record Date and before the occurrence of such event the additional shares of Common Stock issuable upon such conversion by
 
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reason of the adjustment required by such event over and above the Common Stock issuable upon such conversion before giving effect to such adjustment and (ii) paying to such holder any amount in cash in lieu of any fraction pursuant to Section 12.03 hereof.
 
(l)                                    For purposes of this Section 12.04, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
 
(m)                              If the distribution date for the rights provided in the Company’s rights agreement, if any, occurs prior to the date a Security is converted, the Holder of the Security who converts such Security after the distribution date is not entitled to receive the rights that would otherwise be attached (but for the date of conversion) to the shares of Common Stock received upon such conversion;  provided ,  however , that an adjustment shall be made to the Conversion Rate pursuant to clause 12.04(b) as if the rights were being distributed to the common stockholders of the Company immediately prior to such conversion. 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, to take account of such event.
 
Section 12.05.                      Notice of Adjustments of Conversion Rate.    Whenever the Conversion Rate is adjusted as herein provided (other than in the case of an adjustment pursuant to the second paragraph of Section 12.04(h) for which the notice required by such paragraph has been provided), the Company shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers’ Certificate setting forth the adjusted Conversion Rate and showing in reasonable detail the facts upon which such adjustment is based. Unless and until a Responsible Officer of the Trustee receives an Officers’ Certificate describing an adjustment of the Conversion Price, the Trustee may assume without inquiry that no such adjustment has been made. Promptly after delivery of such Officers’ Certificate, the Company shall prepare a notice stating that the Conversion Rate has been adjusted and setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective, and shall mail such notice to each Holder at the address of such Holder as it appears in the Register within 20 days of the effective date of such adjustment. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
 
Section 12.06.                      Notice Prior to Certain Actions.    In case at any time after the date hereof:
 
(1)                                  the Company shall declare a dividend (or any other distribution) on its Common Stock payable otherwise than in cash out of its capital surplus or its consolidated retained earnings;
 
(2)                                  the Company shall authorize the granting to the holders of its Common Stock of rights or warrants to subscribe for or purchase any shares of capital stock of any class (or of securities convertible into shares of capital stock of any class) or of any other rights;
 
(3)                                  there shall occur any reclassification of the Common Stock of the Company (other than a subdivision or combination of its outstanding Common Stock, a change in par value, a change from par value to no par value or a change from no par value to par value), or any merger, consolidation, statutory share exchange or combination to which the Company is a party and for which approval of any shareholders of the Company is required, or the sale, transfer or conveyance of all or substantially all of the assets of the Company; or
 
(4)                                  there shall occur the voluntary or involuntary dissolution, liquidation or winding up of the Company;
 
the Company shall cause to be filed at each office or agency maintained for the purpose of conversion of securities pursuant to Section 9.02 hereof, and shall cause to be provided to the Trustee and all Holders in accordance with Section 14.02 hereof, at least 20 days (or 10 days in any case specified in
 
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clause (1) or (2) above) prior to the applicable record or effective date hereinafter specified, a notice stating:
 
(A)                              the date on which a record is to be taken for the purpose of such dividend, distribution, rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution, rights or warrants are to be determined, or
 
(B)                                the date on which such reclassification, merger, consolidation, statutory share exchange, combination, sale, transfer, conveyance, dissolution, liquidation or winding up 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, cash or other property deliverable upon such reclassification, merger, consolidation, statutory share exchange, sale, transfer, dissolution, liquidation or winding up.
 
Neither the failure to give such notice nor any defect therein shall affect the legality or validity of the proceedings or actions described in clauses (1) through (4) of this Section 12.06.
 
Section 12.07.                      Company to Reserve Common Stock.    The Company shall at all times use its best efforts to reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Stock, for the purpose of effecting the conversion of Securities, the full number of shares of fully paid and non-assessable Common Stock then issuable upon the conversion of all Outstanding Securities.
 
Section 12.08.                      Taxed on Conversions.    Except as provided in the next sentence, the Company will pay any and all taxes (other than taxes on income) and duties that may be payable in respect of the issue or delivery of shares of Common Stock on conversion of Securities pursuant hereto. A Holder delivering a Security for conversion shall be liable for and will be required to pay any tax or duty which may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in a name other than that of the Holder of the Security or Securities to be converted, and no such issue or delivery shall be made unless the Person requesting such issue has paid to the Company the amount of any such tax or duty, or has established to the satisfaction of the Company that such tax or duty has been paid.
 
Section 12.09.                      Covenant as to Common Stock.    The Company covenants that all shares of Common Stock which may be issued upon conversion of Securities will upon issue be fully paid and nonassessable and, except as provided in Section 12.08, the Company will pay all taxes, liens and charges with respect to the issue thereof.
 
Section 12.10.                      Cancellation of Converted Securities.    All Securities delivered for conversion shall be delivered to the Trustee to be canceled by or at the direction of the Trustee, which shall dispose of the same as provided in Section 2.09.
 
Section 12.11.                      Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale.    If any of following events occur, namely:
 
(i)  any recapitalization, 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),
 
(ii)  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
 
(iii)  any sale, conveyance or lease 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,
 
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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 TIA as in force at the date of execution of such supplemental indenture if such supplemental indenture is then required to so comply) providing that each Security 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 recapitalization, reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance had such Securities been converted into Common Stock immediately prior to such recapitalization, 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 recapitalization, reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance ( provided  that, if the kind or amount of securities, cash or other property receivable upon such recapitalization, reclassification, change, merger, consolidation, statutory share exchange, combination, 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 12.11 the kind and amount of securities, cash or other property receivable upon such recapitalization, reclassification, change, merger, consolidation, statutory share exchange, combination, 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 12. If, in the case of any such recapitalization, reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance, the stock or other securities and assets receivable thereupon by a holder of shares 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 recapitalization, 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, including to the extent practicable the provisions providing for the Purchase Rights set forth in Article 11 hereof.
 
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, 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 12.11 shall similarly apply to successive recapitalizations, reclassifications, mergers, consolidations, statutory share exchanges, combinations, sales and conveyances.
 
If this Section 12.11 applies to any event or occurrence, Section 12.04 hereof shall not apply.
 
Section 12.12.                      Responsibility of Trustee for Conversion Provisions.    The Trustee, subject to the provisions of Section 5.01 hereof, and any Conversion Agent shall not at any time be under any duty or responsibility to any Holder of Securities to determine whether any facts exist which may require any adjustment of the Conversion Price, or with respect to the nature or intent of any such adjustments when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. Neither the Trustee, subject to the provisions of Section 5.01 hereof, nor any Conversion Agent shall be accountable with respect to the validity or value (of the kind or amount) of any Common Stock, or of any other securities or property, which may at any time be issued or delivered upon the conversion of any Security; and it or they do not make any representation with respect thereto. Neither the Trustee, subject to the provisions of Section 5.01 hereof, nor any Conversion Agent shall be responsible for any failure of the Company to make any
 
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cash payment or to issue, transfer or deliver any shares of stock or share certificates or other securities or property upon the surrender of any Security for the purpose of conversion; and the Trustee, subject to the provisions of Section 5.01 hereof, and any Conversion Agent shall not be responsible or liable for any failure of the Company to comply with any of the covenants of the Company contained in this Article.
 
ARTICLE 13
SUBORDINATION
 
Section 13.01.                      Securities Subordinated to Senior Debt.    The Company covenants and agrees, and each Holder of Securities, by such Holder’s acceptance thereof, likewise covenants and agrees, that the Indebtedness represented by the Securities and the payment of the principal of and interest (including Liquidated Damages, if any) on each and all of the Securities is hereby expressly subordinated and junior, to the extent and in the manner set forth and as set forth in this Section 13.01, in right of payment to the prior payment in full of all Senior Debt.
 
(a)                                 In the event of any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company, whether in bankruptcy, insolvency, reorganization or receivership proceedings or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Company or otherwise, the holders of all Senior Debt shall first be entitled to receive payment of the full amount due thereon in respect of all such Senior Debt and all other amounts due or provision shall be made for such amount in cash, or other payments satisfactory to the holders of Senior Debt, before the Holders of any of the Securities are entitled to receive any payment or distribution of any character, whether in cash, securities or other property, on account of the principal of or interest (including Liquidated Damages, if any) on the Securities.
 
(b)                                In the event of any acceleration of Maturity of the Securities because of an Event of Default, unless the full amount due in respect of all Senior Debt is paid in cash or other form of payment satisfactory to the holders of Senior Debt, no payment shall be made by the Company with respect to the principal of or interest (including Liquidated Damages, if any) on the Securities or to acquire any of the Securities (including any redemption, conversion or cash purchase pursuant to the exercise of the Purchase Right or the Put Purchase Right), and the Company shall give prompt written notice of such acceleration to such holders of Senior Debt.
 
(c)                                 In the event of and during the continuance of any default in payment of the principal of or interest on, or rent or other payment obligation in respect of, any Senior Debt, whether by acceleration or otherwise, unless (i) all such payments due in respect of such Senior Debt have been paid in full in cash or other payments satisfactory to the holders of Senior Debt and (ii) at the time of, or immediately after giving effect to, any payment made by the Company with respect to the principal of, or interest (including Liquidated Damages, if any) on the Securities or to acquire any of the Securities (including any redemption, conversion or cash purchase pursuant to the exercise of the Purchase Right or the Put Purchase Right), there does not exist under any Senior Debt or any agreement pursuant to which any Senior Debt has been issued any default which shall not have been cured or waived and which shall have resulted in the full amount of such Senior Debt being declared due and payable, the Company shall not make the payment with respect to the Securities contemplated in clause (ii) above. The Company shall give prompt written notice to the Trustee of any default under any Senior Debt or under any agreement pursuant to which Senior Debt may have been issued.
 
(d)                                During the continuance of any event of default with respect to any Designated Senior Debt, as such event of default is defined under any such Designated Senior Debt or in any agreement pursuant to which any Designated Senior Debt has been issued (other than a default in payment of the principal of or interest on, rent or other payment obligation in respect of any Designated Senior Debt), permitting the holder or holders of such Designated Senior Debt to accelerate the maturity thereof (or in the case of any lease, permitting the landlord either to terminate the lease or to require the
 
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Company to make an irrevocable offer to terminate the lease following an event of default thereunder), no payment shall be made by the Company, directly or indirectly, with respect to principal of or interest (including Liquidated Damages, if any) on the Securities for 179 days (the “ Payment Blockage Period ”) following notice in writing (a “ Payment Blockage Notice ”) to the Company, from any holder or holders of such Designated Senior Debt or their representative or representatives or the trustee or trustees under any indenture or under which any instrument evidencing any such Designated Senior Debt may have been issued, that such an event of default has occurred and is continuing, unless such event of default has been cured or waived or such Designated Senior Debt has been paid in full in cash or other payment satisfactory to the holders of such Designated Senior Debt.
 
Notwithstanding the foregoing (but subject to the provisions described above limiting payment on the Securities in certain circumstances), unless the Holders of such Designated Senior Debt or the representative of such Holders shall have accelerated the maturity of such Designated Senior Debt, the Company may resume payments on the Securities after the end of the Payment Blockage Period.
 
For purposes of this Section 13.01(d), such Payment Blockage Notice shall be deemed to include notice of all other events of default under such indenture or instrument which are continuing at the time of the event of default specified in such Payment Blockage Notice. Not more than one Payment Blockage Notice may be given in any consecutive 365-day period, irrespective of the number of events of default, with respect to one or more issues of Designated Senior Debt during such period, and no such continuing event of default that existed or was continuing on the date of delivery of any Payment Blockage Notice shall be, or shall be made, the basis for a subsequent Payment Blockage Notice.
 
(e)                                 In the event that, notwithstanding the foregoing provisions of Section 13.01(a), 13.01(b), 13.01(c) and 13.01(d), any payment on account of principal or interest (including Liquidated Damages, if any) on the Securities shall be made by or on behalf of the Company and received by the Trustee, by any Holder or by any Paying Agent (or, if the Company is acting as its own Paying Agent, money for any such payment shall be segregated and held in trust):
 
(i)  after the occurrence of an event specified in Section 13.01(a) or 13.01(b), then, unless all Senior Debt is paid in full in cash, or provision shall be made therefor,
 
(ii)  after the happening of an event of default of the type specified in Section 13.01(c) above, then, unless the amount of such Senior Debt then due shall have been paid in full, or provision made therefor or such event of default shall have been cured or waived, or
 
(iii)  after the happening of an event of default of the type specified in Section 13.01(d) above and delivery of a Payment Blockage Notice, then, unless such event of default shall have been cured or waived or the 179-day period specified in Section 13.01(d) shall have expired,
 
such payment (subject, in each case, to the provisions of Section 13.07 hereof) shall be held in trust for the benefit of, and shall be immediately paid over to, the holders of Designated Senior Debt (unless an event described in Section 13.01(a), (b) or (c) has occurred, in which case the payment shall be held in trust for the benefit of, and shall be immediately paid over to all holders of Senior Debt) or their representative or representatives or the trustee or trustees under any indenture under which any instruments evidencing any of the Designated Senior Debt or Senior Debt, as the case may be, may have been issued, as their interests may appear.
 
Section 13.02.                      Subrogation.    Subject to the payment in full of all Senior Debt to which the Indebtedness evidenced by the Securities is in the circumstances subordinated as provided in Section 13.01 hereof, the Holders of the Securities shall be subrogated to the rights of the holders of such Senior Debt to receive payments or distributions of cash, property or securities of the Company applicable to such Senior Debt until all amounts owing on the Securities shall be paid in full, and, as between the Company, its creditors other than holders of such Senior Debt, and the Holders of the Securities, no such payment or distribution made to the holders of Senior Debt by virtue of this Article
 
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which otherwise would have been made to the holders of the Securities shall be deemed to be a payment by the Company on account of such Senior Debt;  provided ,  however , that the provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities, on the one hand, and the holders of Senior Debt, on the other hand.
 
Section 13.03.                      Obligation of the Company is Absolute and Unconditional.    Nothing contained in this Article or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company, its creditors other than the holders of Senior Debt, and the Holders of the Securities, the obligation of the Company, which is absolute and unconditional, to pay to the Holders of the Securities the principal of and interest (including Liquidated Damages, if any) on the Securities as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders of the Securities and creditors of the Company other than the holders of Senior Debt, nor shall anything contained herein or therein prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article of the holders of Senior Debt in respect of cash, property or securities of the Company received upon the exercise of any such remedy.
 
Section 13.04.                      Maturity of or Default on Senior Debt.    Upon the maturity of any Senior Debt by lapse of time, acceleration or otherwise, all principal of or interest on, rent or other payment obligations in respect of all such matured Senior Debt shall first be paid in full, or such payment shall have been duly provided for, before any payment on account of principal or interest (including Liquidated Damages, if any) is made upon the Securities.
 
Section 13.05.                      Payments on Securities Permitted.    Except as expressly provided in this Article, nothing contained in this Article shall affect the obligation of the Company to make, or prevent the Company from making, payments of the principal of or interest (including Liquidated Damages, if any) on the Securities in accordance with the provisions hereof and thereof, or shall prevent the Trustee or any Paying Agent from applying any moneys deposited with it hereunder to the payment of the principal of or interest (including Liquidated Damages, if any) on the Securities.
 
Section 13.06.                      Effectuation of Subordination by Trustee.    Each Holder of Securities, by such Holder’s acceptance thereof, authorizes and directs the Trustee on such Holder’s behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article and appoints the Trustee such Holder’s attorney-in-fact for any and all such purposes.
 
Upon any payment or distribution of assets of the Company referred to in this Article, the Trustee and the Holders of the Securities shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors, liquidating trustee or agent or other Person making any payment or distribution, delivered to the Trustee or to the Holders of the Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, and as to other facts pertinent to the right of such Persons under this Article, and if such evidence is not furnished, the Trustee may defer any payment to such Persons pending judicial determination as to the right of such Persons to receive such payment.
 
Section 13.07.                      Knowledge of Trustee.    Notwithstanding the provision of this Article or any other provisions of this Indenture, the Trustee shall not be charged with knowledge of the existence of any Senior Debt, of any default in payment of principal of or interest on, rent or other payment obligation in respect of any Senior Debt, or of any facts which would prohibit the making of any payment of moneys to or by the Trustee, or the taking of any other action by the Trustee, unless a Responsible Officer of the Trustee having responsibility for the administration of the trust established by this Indenture shall have received written notice thereof from the Company, any Holder of Securities, any Paying or Conversion Agent of the Company or the holder or representative of any class of Senior
 
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Debt, and, prior to the receipt of any such written notice, the Trustee shall be entitled in all respects to assume that no such default or facts exist;  provided ,  however , that unless on the third Business Day prior to the date upon which by the terms hereof any such moneys may become payable for any purpose the Trustee shall have received the notice provided for in this Section 13.07, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such moneys and apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it on or after such date.
 
Section 13.08.                      Trustee’s Relation to Senior Debt.    The Trustee shall be entitled to all the rights set forth in this Article with respect to any Senior Debt at the time held by it, to the same extent as any other holder of Senior Debt and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.
 
Nothing contained in this Article shall apply to claims of or payments to the Trustee under or pursuant to Section 5.08 hereof
 
With respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article, and no implied covenants or obligations with respect to the holders of Senior Debt shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt and the Trustee shall not be liable to any holder of Senior Debt if it shall pay over or deliver to Holders, the Company or any other Person moneys or assets to which any holder of Senior Debt shall be entitled by virtue of this Article or otherwise.
 
Section 13.09.                      Rights of Holders of Senior Debt Not Impaired.    No right of any present or future holder of any Senior Debt to enforce the subordination herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with.
 
Section 13.10.                      Modification of Terms of Senior Debt.    Any renewal or extension of the time of payment of any Senior Debt or the exercise by the holders of Senior Debt of any of their rights under any instrument creating or evidencing Senior Debt, including without limitation the waiver of default thereunder, may be made or done all without notice to or assent from the Holders of the Securities or the Trustee.
 
No compromise, alteration, amendment, modification, extension, renewal or other change of, or waiver, consent or other action in respect of, any liability or obligation under or in respect of, or of any of the terms, covenants or conditions of any indenture or other instrument under which any Senior Debt is outstanding or of such Senior Debt, whether or not such release is in accordance with the provisions or any applicable document, shall in any way alter or affect any of the provisions of this Article or of the Securities relating to the subordination thereof.
 
Section 13.11.                      Certain Conversions Not Deemed Payment.    For the purposes of this Article 13 only:
 
(1)                                 the issuance and delivery of junior securities upon conversion of Securities in accordance with Article 12 hereof shall not be deemed to constitute a payment or distribution on account of the principal of or interest (including Liquidated Damages, if any) on Securities or on account of the purchase or other acquisition of Securities, and
 
(2)                                 the payment, issuance or delivery of cash (except in satisfaction of fractional shares pursuant to Section 12.03 hereof), property or securities (other than junior securities) upon conversion of a Security shall be deemed to constitute payment on account of the principal of or interest (including Liquidated Damages, if any) on such Security.
 
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For the purposes of this Section 13.11, the term “junior securities” means:
 
(a)                                 shares of any common stock of the Company or
 
(b)                                other securities of the Company that are subordinated in right of payment to all Senior Debt that may be outstanding at the time of issuance or delivery of such securities to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this Article.
 
Nothing contained in this Article 13 or elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the Company, its creditors (other than holders of Senior Debt) and the Holders of Securities, the right, which is absolute and unconditional, of the Holder of any Security to convert such Security in accordance with Article 12 hereof.
 
ARTICLE 14
OTHER PROVISIONS OF GENERAL APPLICATION
 
Section 14.01.                      Trust Indenture Act Controls.    This Indenture is subject to the provisions of the TIA which are required to be part of this Indenture, and shall, to the extent applicable, be governed by such provisions.
 
Section 14.02.                      Notices.    Any notice or communication to the Company or the Trustee is duly given if in writing and delivered in person or mailed by first-class mail to the address set forth below:
 
(a)  if to the Company:
 
Pixelworks, Inc.
8100 Nyberg Street, Suite 300
Tualatin, Oregon 97062
Attention: Jeffrey Bouchard
 
with a copy (which shall not constitute notice) to:
 
O’Melveny & Myers LLP
2765 Sand Hill Road
Menlo Park, California 94025-7019
Attention: Karen Dreyfus, Esq.
 
(b)  if to the Trustee:
 
Wells Fargo Bank, National Association
707 Wilshire Boulevard, 17th Floor
Los Angeles, CA 90017
Attention: Corporate Trust Department
 
The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
 
Any notice or communication to a Holder shall be mailed by first-class mail to his address shown on the Register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in such notice or communication shall not affect its sufficiency with respect to other Holders.
 
If a notice or communication is mailed or sent in the manner provided above within the time prescribed, it is duly given as of the date it is mailed, whether or not the addressee receives it, except that notice to the Trustee shall only be effective upon receipt thereof by the Trustee.
 
If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee at the same time.
 
Section 14.03.                      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 the
 
58

 
Securities or this Indenture. The Company, the Trustee, the Registrar and anyone else shall have the protection of Section 3 12(c) of the TIA.
 
Section 14.04.                      Acts of Holders of Securities.    (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of Securities may be embodied in and evidenced by:
 
(1)  one or more instruments of substantially similar tenor signed by such Holders in person or by agent or proxy duly appointed in writing;
 
(2)  the record of Holders of Securities voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities duly called and held in accordance with the provisions of Article 8; or
 
(3)  a combination of such instruments and any such record.
 
Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders of Securities signing such instrument or instruments and so voting at such meeting. Proof of execution of any such instrument or of a writing appointing any such agent or proxy, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 5.01 hereof) conclusive in favor of the Trustee and the Company if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 8.06 hereof.
 
(b)                                The fact and date of the execution by any Person of any such instrument or writing may be provided in any manner which the Trustee reasonably deems sufficient.
 
(c)                                 The principal amount and serial numbers of Securities held by any Person, and the date of such Person holding the same, shall be proved by the Register.
 
(d)                                Any request, demand, authorization, direction, notice, consent, election, waiver or other Act of the Holders 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.
 
Section 14.05.                      Certificate and Opinion as to Conditions Precedent.    In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
 
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such officer knows, or in the exercise of reasonable care should know, that the Opinion of Counsel with respect to the matters upon which such certificate or opinion is based is erroneous. Any such Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or representations with respect to such matters are erroneous.
 
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Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
 
Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, except that in the case of any such application or request as to which the furnishing of such document is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate need be furnished.
 
Section 14.06.                      Statements Required in Certificate or Opinion.    Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
 
(1)  a statement that each individual signing such certificate or opinion on behalf of the Company has read such covenant or condition and the definitions herein relating thereto;
 
(2)  a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
 
(3)  a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
 
(4)  a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
 
Section 14.07.                      Effect of Headings and Table of Contents.    The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
 
Section 14.08.                      Successors and Assigns.    All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
 
Section 14.09.                      Separability Clause.    In case any provision in this Indenture or 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 14.10.                      Benefits of Indenture.    Nothing contained in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, the holders of Senior Debt and the Holders of Securities, any benefit or legal or equitable right, remedy or claim under this Indenture.
 
Section 14.11.                      Governing Law.    THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
Section 14.12.                      Counterparts.    This instrument maybe executed in any number of counterparts, each of which when so executed shall be deemed to be an original but all such counterparts shall together constitute but one and the same instrument.
 
Section 14.13.                      Legal Holidays.    In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security or the last day on which a Holder of a Security has a right to convert such Security shall not be a Business Day at any Place of Payment or Place of Conversion, then (notwithstanding any other provision of this Indenture or of the Securities) payment of interest (including Liquidated Damages, if any) or principal or conversion of the Securities, need not be made at such Place of Payment or Place of Conversion on such day, but may be made on the next succeeding Business Day at such Place of Payment or Place of Conversion with the same force and effect as if made on the Interest Payment Date or Redemption Date or at the Stated Maturity or on such last day for conversion; provided, however, that in the case that payment is made on such succeeding Business Day, no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
 
Section 14.14.                      Recourse Against Others.    No recourse for the payment of the principal of or interest (including Liquidated Damages, if any) on any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, shareholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance thereof and as part of the consideration for the issue thereof, expressly waived and released.
 
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SIGNATURES
 
IN WITNESS WHEREOF, the parties hereto have caused this indenture to be duly executed all as of the day and year first above written.
 
 	 	PIXELWORKS, INC., as Issuer	
 	 	 	
 	 	By:	/s/  JEFFREY BOUCHARD	
 	 	 	Name:	Jeffrey Bouchard	
 	 	 	Title:	Chief Financial Officer, Vice
President—Finance, and Secretary	
 	 	 	 	 	
 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee	
 	 	 	
 	 	By:	/s/  JEANIE MAR	
 	 	 	Name:	Jeanie Mar	
 	 	 	Title:	Vice President	
 
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EXHIBIT A
 
FORM OF SECURITY
 
[FACE OF SECURITY]
 
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO PIXELWORKS, INC. (OR ITS SUCCESSOR) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, CONVERSION OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR OF SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), 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.(1)

(1)                                  This legend should be included only if the Security is issued in global form.
 
THIS DEBENTURE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”), AND THIS DEBENTURE AND THE COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS DEBENTURE IS HEREBY NOTIFIED THAT THE SELLER OF THIS DEBENTURE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A OR REGULATION S THEREUNDER.
 
THE HOLDER OF THIS DEBENTURE AGREES FOR THE BENEFIT OF PIXELWORKS, INC. THAT (A) THIS DEBENTURE AND THE COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, (B) THE HOLDER WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO THIS SECURITY OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT, AND (C) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS DEBENTURE FROM IT OF THE RESTRICTIONS REFERRED TO IN (A) AND (B) ABOVE.
 
A-1

 
PIXELWORKS, INC.
 
1.75% Convertible Subordinated Debenture due 2024
 
 	 	 	CUSIP NO.	 	
 	 	 	 	 	
No.	 	 	$	 	

PIXELWORKS, INC., an Oregon corporation (the “Company”, which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to                       , or its registered assigns, the principal sum of    U.S. Dollars ($    ) on May 15, 2024.
 
Interest Payment Dates: May 15 and November 15, commencing November 15, 2004.
 
Regular Record Dates: May 1 and November 1.
 
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
 
A-2

 
IN WITNESS WHEREOF, the Company has caused this Security to be duly executed manually or by facsimile by its duly authorized officers.
 
Dated:	 	 	
 	 	 	
 	PIXELWORKS, INC.	
 	 	 	
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	
 	 	 	 	
 	By:	 	 	
 	 	Name:	 	
 	 	Title:	 	
 
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Trustee’s Certificate of Authentication
 
This is one of the 1.75% Convertible Subordinated Debentures due 2024 described in the within-named Indenture.
 
 	WELLS FARGO BANK, NATIONAL
ASSOCIATION,  as Trustee	
 	 	 	
 	By:	 	 	
 	 	Authorized Signatory	 	
 	 	Name:	 	
 	 	Title:	 	
Dated:	 	 	 	
 
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[REVERSE OF SECURITY]
 
PIXELWORKS, INC.
 
1.75% Convertible Subordinated Debenture due 2024
 
Capitalized terms used herein but not defined shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
 
1.                                      Principal and Interest.    Pixelworks, Inc., an Oregon corporation (the “Company”), promises to pay interest on the principal amount of this Security at the Interest Rate from the date of issuance until repayment at Maturity, redemption or purchase. The Company shall pay interest on this Security semiannually in arrears on May 15 and November 15 of each year (each an “ Interest Payment Date ”), commencing November 15, 2004.
 
Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months and for any period shorter than a full semiannual period for which interest is calculated, on the basis of a 30-day month and, for such periods of less than a month, the actual number of days elapsed over a 30-day month.
 
Subject to Section 2.17 of the Indenture, a Holder of any Security at the close of business on a Regular Record Date shall be entitled to receive interest on such Security on the corresponding Interest Payment Date. A Holder of any Security which is converted after the close of business on a Regular Record Date and prior to the corresponding Interest Payment Date (other than any Security whose Maturity is prior to such Interest Payment Date) shall be entitled to receive interest (including Liquidated Damages, if any) on the principal amount of such Security, notwithstanding the conversion of such Security prior to such Interest Payment Date. However, any such Holder which surrenders any such Security for conversion during the period between the close of business on such Regular Record Date and ending with the opening of business on the corresponding Interest Payment Date shall be required to pay the Company an amount equal to the interest (excluding Liquidated Damages, if any) on the principal amount of such Security so converted (but excluding any Defaulted Interest on the principal amount of such Security so converted that exists at the time such Holder surrenders such Security for conversion), which is payable by the Company to such Holder on such Interest Payment Date, at the time such Holder surrenders such Security for conversion. Notwithstanding the foregoing, any such Holder which surrenders for conversion any Security (a) which has been called for redemption by the Company in a notice of redemption given by the Company pursuant to Section 10.04 of the Indenture on a Redemption Date after such Regular Record Date and on or prior to the next succeeding Interest Payment Date or (b) with respect to which the Company has specified a Purchase Date that is after such Regular Record Date and on or prior to the next succeeding Interest Payment Date, in either case, shall be entitled to receive (and retain) such interest and need not pay the Company an amount equal to the interest on the principal amount of such Security so converted at the time such Holder surrenders such Security for conversion.
 
In accordance with the terms of the Registration Rights Agreement, during the first 90 days following a Registration Default (as defined in the Registration Rights Agreement), the Interest Rate borne by this Security shall be increased by 0.25%. From and after the 91st day following such Registration Default, the Interest Rate borne by this Security shall be increased by 0.50%. In no event shall the Interest Rate borne by this Security be increased by more than 0.50%.
 
Any amount of additional interest shall be payable in cash semiannually, in arrears, on each Interest Payment Date and shall cease to accrue on the date the Registration Default is cured. The Holder of this Security is entitled to the benefits of the Registration Rights Agreement.
 
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2.                                      Method of Payment.    Interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
 
Principal of and interest on, Global Securities shall be payable to the Depositary in immediately available funds.
 
Principal of Physical Securities shall be payable at the office or agency of the Company maintained for such purpose, initially the Corporate Trust Office of the Trustee. Interest on Physical Securities shall be payable by (i) U.S. Dollar check drawn on a bank located in the city where the Corporate Trust Office of the Trustee is located mailed to the address of the Person entitled thereto as such address shall appear in the Register, or (ii) upon application to the Registrar not later than the relevant Record Date by a Holder of an aggregate principal amount of Securities in excess of $5,000,000, wire transfer in immediately available funds.
 
3.                                      Paying Agent and Registrar.    Initially, Wells Fargo Bank, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change the Paying Agent or Registrar without notice to any Holder.
 
4.                                      Indenture.    The Company issued this Security under an Indenture, dated as of May 18, 2004 (the “ Indenture ”), between the Company and Wells Fargo Bank, National Association, as trustee (the “ Trustee ”). The terms of this Security include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (“ TIA ”). 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.
 
5.                                      Optional Redemption.    This Security is not redeemable prior to May 15, 2011. This Security may be redeemed in whole or in part, upon not less than 30 nor more than 60 days’ notice, at any time on or after May 15, 2011, at the option of the Company, at a redemption price equal to 100% of the principal amount of the Securities plus any interest accrued (including Liquidated Damages, if any) but not paid prior to, but excluding, the Redemption Date.
 
If fewer than all the Securities are to be redeemed, the Trustee shall select the particular Securities to be redeemed from the Outstanding Securities by the methods as provided in the Indenture. If any Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed to be the portion selected for redemption ( provided ,  however , that the Holder of such Security so converted and deemed redeemed shall not be entitled to any additional interest payment as a result of such deemed redemption than such Holder would have otherwise been entitled to receive upon conversion of such Security). 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.
 
On and after the Redemption Date, interest shall cease to accrue on Securities or portions of Securities called for redemption, unless the Company defaults in the payment of the Optional Redemption Price and accrued and unpaid interest.
 
Notice of redemption shall be given by the Company to the Holders as provided in the Indenture.
 
6.                                      Purchase Rights.
 
(a)          Purchase Right Upon a Fundamental Change.    If a Fundamental Change occurs, the Holder of Securities, at the Holder’s option, shall have the right, in accordance with the provisions of the Indenture, to require the Company to purchase the Securities (or any portion of the principal amount hereof that is at least $1,000 or a multiple thereof; provided ,  however , that the
 
A-6

 
portion of the principal amount of this Security to be Outstanding after such purchase is at least equal to $1,000) at a purchase price equal to 100% of the principal amount of the Securities to be purchased (the “ Purchase Price ”), plus interest accrued (including Liquidated Damages, if any) and unpaid to, but excluding, the Purchase Date.
 
A Company Notice shall be given by the Company to the Holders as provided in the Indenture. To exercise a Purchase Right, a Holder must deliver to the Trustee a written notice as provided in the Indenture.
 
(b)         Purchase by the Company at the Option of the Holder.    Subject to the terms and conditions of the Indenture, each Holder shall have the right to require the Company to purchase all or a portion of their Securities on May 15, 2011, May 15, 2014 and May 15, 2019 (or, if any such date is not a Business Day, on the immediately succeeding Business Day) (each, a “ Put Purchase Date ”), at 100% of the principal amount of the Securities to be so purchased, plus accrued (including Liquidated Damages, if any) and unpaid interest, if any, to, but excluding, such Put Purchase Date (the “ Put Purchase Price ”). On or before the twenty-third (23rd) Business Day prior to each Put Purchase Date, the Company shall provide to the Trustee, the Paying Agent and to all Holders at their respective addresses as shown on the Register, and to beneficial owners of the Securities where required by applicable law, a notice as provided in the Indenture. The Company will be required to purchase only Securities with respect to which a Holder has delivered a Purchase Notice in accordance with the terms and conditions of the Indenture and subject to the satisfaction of the other conditions set forth in the Indenture.
 
7.                                      Conversion Rights.    (a) Subject to and upon compliance with the provisions of the Indenture and the occurrence of one or more of the conditions set forth in clause (d) of this paragraph 7, the Holder of Securities shall be entitled, at such Holder’s option, at any time before the close of business on May 15, 2024, to convert the Holder’s Securities (or any portion of the principal amount hereof which is $1,000 or a multiple thereof), at the principal amount thereof or of such portion thereof into duly authorized, fully paid and nonassessable shares of Common Stock of the Company at the Conversion Rate in effect at the time of conversion.
 
(b)         In the case of a Security (or a portion thereof) called for redemption, such conversion right in respect of the Security (or such portion thereof) so called shall expire at the close of business on the Business Day immediately preceding the Redemption Date, unless the Company defaults in making the payment due upon redemption. If a Holder exercises its Purchase Right or Put Purchase Right with respect to a Security (or a portion thereof), such conversion right in respect of the Security (or portion thereof) shall expire at the close of business on the Business Day preceding the Purchase Date or Put Purchase Date, as applicable.
 
(c)          Each $1,000 principal amount of the Securities shall initially be convertible into 41.0627 shares of Common Stock (referred to as the “Conversion Rate”). The Conversion Price shall be initially equal approximately $24.35 per share of Common Stock. The Conversion Rate shall be adjusted under certain circumstances as provided in the Indenture.
 
(d)         Regardless of anything else contained herein, Holders may surrender their Securities for conversion into shares of the Company’s Common Stock prior to Stated Maturity in the following circumstances:
 
(i)             Conversion Upon Satisfaction of Sale Price Condition.
 
(A)                              A Holder may surrender any of its Securities for conversion into shares of the Company’s Common Stock in any calendar quarter (and only during such calendar quarter) after the quarter ending September 30, 2004 if the sale price of the Company’s Common Stock, for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter, is greater than or
 
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equal to 130% of the applicable Conversion Price per share of the Company’s Common Stock on such last Trading Day.
 
(B)                                The “sale price” of the Company’s Common Stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and asked prices or, if more than one in either case, the average of the average bid and the average asked prices) on that date as reported in transactions for the principal U.S. securities exchange on which the Company’s Common Stock is traded or, if the Company’s Common Stock is not listed on a U.S. national or regional securities exchange, as reported by the Nasdaq National Market. The sale price shall be determined without reference to after-hours or extended market trading. If the Company’s Common Stock is not listed for trading on a U.S. national or regional securities exchange and not reported by the Nasdaq National Market on the relevant date, the “ sale price ” shall be the last quoted bid price for the Company’s Common Stock in the over-the-counter market on the relevant date as reported by the National Quotation Bureau or similar organization. If the Company’s Common Stock is not so quoted, the “ sale price ” shall be the average of the mid-point of the last bid and asked prices for the Company’s Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.
 
(ii)     Conversion Upon Satisfaction of Trading Price Condition.
 
(A)                              A Holder may surrender its Securities for conversion into the Company’s Common Stock during the five Business Days immediately following any five consecutive Trading-Day period in which the Trading Price per $1,000 principal amount of Securities (as determined following a request by a Holder of the Securities in accordance with the procedures described below) for each day of that period was less than 98% of the product of the sale price of the Company’s Common Stock and the then applicable Conversion Rate; provided ,  however , that a Holder may not convert Securities in reliance on this clause (d)(ii) of this paragraph 7 after May 15, 2019 if on any Trading Day during the five consecutive Trading-Day period, the sale price of the Company’s Common Stock was between 100% and 130% of the Conversion Price in effect on such Trading Day.
 
(B)                                In connection with any conversion upon satisfaction of the condition set forth in clause (A) above, the Trustee shall have no obligation to determine the Trading Price of the Securities unless the Company has requested such determination, and the Company shall have no obligation to make such request unless the Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Securities would be less than 98% of the product of the sale price of the Company’s Common Stock and the then applicable Conversion Rate; at which time the Company shall instruct the Trustee to determine the Trading Price of the Securities beginning on the next Trading Day and on each successive Trading Day until the trading price is greater than or equal to 98% of the product of the sale price of the Company’s Common Stock and the then applicable Conversion Rate.
 
(iii)       Conversion Upon Notice of Redemption.    If the Company calls any or all of the Securities for redemption pursuant to the provisions of Article 10 of the Indenture, Holders may convert Securities into the Company’s Common Stock at any time prior to the close of business on the Business Day immediately preceding the Redemption Date, even if the Securities are not otherwise convertible at such time. If a Holder already has delivered a purchase notice with respect to a Security, however, the Holder may not surrender that Security for conversion until the Holder has withdrawn the purchase notice in accordance with this Indenture.
 
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(iv)      Conversion Upon Specified Corporate Transactions.
 
(A)                              If the Company elects to: (1) distribute to all holders of the Company’s Common Stock rights entitling them to purchase shares of the Company’s Common Stock at less than the sale price of a share of the Company’s Common Stock on the Trading Day immediately preceding the declaration date of the distribution, or (2) distribute to all holders of the Company’s Common Stock the Company’s assets, debt securities or rights to purchase the Company’s securities, which distribution has a per share value as determined by the Company’s board of directors exceeding 10% of the sale price of a share of the Company’s Common Stock on the Trading Day immediately preceding the declaration date of the distribution, the Company must notify the Holders of the Securities at least 20 days prior to the ex-dividend date for such distribution. Upon such notice, Holders may surrender their Securities for conversion at any time until the earlier of the close of business on the Business Day immediately prior to the ex-dividend date or the Company’s announcement that such distribution will not take place, even if the Securities are not otherwise convertible at such time. No Holder may exercise this right to convert if the Holder otherwise may participate in the distribution without conversion. The ex-dividend date is the first date upon which a sale of the Common Stock does not automatically transfer the right to receive the relevant distribution from the seller of the Common Stock to its buyer.
 
(B)                                If the Company is a party to a consolidation, merger or binding share exchange pursuant to which the Company’s Common Stock would be converted into cash, securities or property, a Holder may surrender Securities for conversion at any time from and after the date that is 15 days prior to the anticipated effective date of the transaction until 15 days after the actual effective date of such transaction, and at the effective time of the transaction, the right to convert a Security into the Company’s Common Stock shall be changed into a right to convert a Security into the kind and amount of cash, securities or other property that the Holder would have received if the Holder had converted its Securities immediately prior to the applicable record date for such transaction. If the transaction also constitutes a Fundamental Change, a Holder may require the Company to purchase all or a portion of its Securities as set forth in Article 11 of the Indenture.
 
(e)          To exercise the conversion right, the Holder must surrender the Security (or portion thereof) duly endorsed or assigned to the Company or in blank, at the office of the Conversion Agent, accompanied by a duly signed conversion notice to the Company. Any Security surrendered for conversion during the period between the close of business on any Regular Record Date and the opening of business on the corresponding Interest Payment Date (other than any Security whose Maturity is prior to such Interest Payment Date) shall be accompanied by payment in New York Clearing House funds or other funds acceptable to the Company of an amount equal to the interest (excluding Liquidated Damages, if any) payable on such Interest Payment Date by the Company on the principal amount of the Security being surrendered for conversion (but excluding any overdue interest on the principal amount of such Security so converted that exists at the time such Holder surrenders such Security for conversion). Notwithstanding the foregoing, any such Holder which surrenders for conversion any Security (a) which has been called for redemption by the Company in a notice of redemption given by the Company pursuant to Section 10.04 of the Indenture on a Redemption Date after such Regular Record Date and on or prior to the next succeeding Interest Payment Date or (b) with respect to which the Company has specified a Purchase Date that is after such Regular Record Date and on or prior to the next succeeding Interest Payment Date, in either case, need not pay the Company an amount equal to the interest on the principal amount of such Security so converted at the time such Holder surrenders such Security for conversion.
 
(f)            No fractional shares of Common Stock shall be issued upon conversion of any Securities. Instead of any fractional share of Common Stock which would otherwise be issued upon conversion of such Securities, the Company shall pay a cash adjustment as provided in the Indenture.
 
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8.                                      Subordination.    The Indebtedness evidenced by this Security is, to the extent and in the manner provided in the Indenture, subordinated and subject in right of payment to the prior payment in full of all amounts then due on all Senior Debt of the Company. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on such Holder’s behalf to take such action as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee such Holder’s attorney-in-fact for any and all such purposes.
 
9.                                      Denominations; Transfer; Exchange.    The Securities are issuable in registered form, without coupons, in denominations of $1,000 and multiples of $1,000 in excess thereof. A Holder may register the transfer or exchange of Securities in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture.
 
In the event of a redemption in part, the Company shall not be required (a) to register the transfer of, or exchange, Securities for a period of 15 days immediately preceding the date notice is given identifying the serial numbers of the Securities called for such redemption, or (b) to register the transfer of, or exchange, any such Securities, or portion thereof, called for redemption.
 
In the event of redemption, conversion or purchase of the Securities in part only, a new Security or Securities for the unredeemed, unconverted or unpurchased portion thereof shall be issued in the name of the Holder hereof.
 
10.                                Persons Deemed Owners.    The registered Holder of this Security shall be treated as its owner for all purposes.
 
11.                                Unclaimed Money.    The Trustee and the Paying Agent shall pay to the Company any money held by them for the payment of principal or interest that remains unclaimed for two years after the date upon which such payment shall have become due. After payment to the Company, Holders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another Person, and all liability of the Trustee and the Paying Agent with respect to such money shall cease.
 
12.                                Discharge Prior to Redemption or Maturity.    Subject to certain conditions contained in the Indenture, the Company may discharge its obligations under the Securities and the Indenture if (1) (a) all of the Outstanding Securities have become due and payable or shall become due and payable at their scheduled Maturity within one year or (b) all of the Outstanding Securities are scheduled for redemption within one year, and (2) the Company shall have deposited with the Trustee an amount in cash sufficient to pay the principal of and interest on, all of the Outstanding Securities on the date of Maturity or redemption, as the case may be.
 
13.                                Amendment; Supplement; Waiver.    The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Outstanding Securities (or such lesser amount as shall have acted at a meeting pursuant to the provisions of the Indenture). The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon registration of transfer hereof or in exchange herefor
 
A-10

 
or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security or such other Security.
 
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest (including Liquidated Damages, if any) on this Security at the times, places and rate, and in the coin or currency, herein prescribed or to convert this Security as provided in the Indenture.
 
14.                                Defaults and Remedies.    The Indenture provides that an Event of Default with respect to the Securities occurs when any of the following occurs:
 
(a)          the Company defaults in the payment of the principal on any of the Securities when it becomes due and payable, at Maturity, upon redemption or exercise of a Purchase Right or Put Purchase Right or otherwise, whether or not such payment is prohibited by the subordination provisions of Article 13 of the Indenture; or
 
(b)         the Company defaults in the payment of interest (including Liquidated Damages, if any) on any of the Securities when it becomes due and payable and such default continues for a period of 30 days, whether or not such payment is prohibited by the subordination provisions of Article 13 of the Indenture; or
 
(c)          the Company fails to deliver shares of Common Stock, together with cash instead of fractional shares, when those shares of Common Stock or cash instead of fractional shares is required to be delivered following conversion of a Security in accordance with the provisions of Article 12 of the Indenture and that failure continues for 10 days; or
 
(d)         the Company fails to perform or observe any other term, covenant or agreement contained in the Securities or the Indenture and such default continues for a period of 60 days after written notice of such failure is given as specified in the Indenture; or
 
(e)          (i) the Company fails to make any payment by the end of the applicable grace period, if any, after the maturity of any Indebtedness for borrowed money in an amount in excess of $10,000,000, or (ii) there is an acceleration of any Indebtedness for borrowed money in an amount in excess of $10,000,000 because of a default with respect to such Indebtedness without such Indebtedness having been discharged or such acceleration having been cured, waived, rescinded or annulled, in the case of either clause (i) or (ii) above, for a period of 30 days after written notice is given to the Company as specified in the Indenture; or
 
(f)            the Company fails, within 30 days after the occurrence of a Fundamental Change, to give to each Holder of Securities notice pursuant to Section 11.03 of the Indenture; or
 
(g)         there are certain events of bankruptcy, insolvency or reorganization of the Company.
 
If an Event of Default shall occur and be continuing, the principal of all the Securities maybe declared due and payable in the manner and with the effect provided in the Indenture.
 
15.                                Authentication.    This Security shall not be valid until the Trustee (or authenticating agent) executes the certificate of authentication on the other side of this Security.
 
16.                                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 Gifts to Minors Act).
 
17.                                Additional Rights of Holders of Registrable Securities.    In addition to the rights provided to Holders under the Indenture, Holders of Registrable Securities shall have all the rights set forth in the Registration Rights Agreement.
 
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18.                                CUSIP Numbers.    Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on this Security and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on this Security or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
 
19.                                Governing Law.    The Indenture and this Security shall be governed by, and construed in accordance with, the law of the State of New York.
 
20.                                Successor Corporation.    In the event a successor corporation assumes all the obligations of the Company under this Security, pursuant to the terms hereof and of the Indenture, the Company shall be released from all such obligations.
 
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ASSIGNMENT FORM
 
To assign this Security, fill in the form below and have your signature guaranteed: (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                                                                          to transfer this Security on the books of the Company. The agent may substitute another to act for him.
 
Dated:	 	 	 	 	
 	 	Your Name:	 	 	
 	 	 	 	 	
 	 	 	 	(Print your name exactly as it appears on the face of this Security)	
 	 	 	 	 	
 	 	Your Signature:	 	 	
 	 	 	 	 	
 	 	 	 	(Sign exactly as your name appears on the face of this Security)	
 
Signature Guarantee*:

*                                         Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
 
In connection with any transfer of this Security occurring prior to the end of the period referred to in Rule 144(k) under the Securities Act, the undersigned confirms that without utilizing any general solicitation or general advertising:
 
[Check One]
 
o                                   (a) this Security is being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Rule 144A thereunder.
 
or
 
o                                   (b) this Security is being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Regulation S thereunder.
 
or
 
o                                   (c) this Security is being transferred other than in accordance with (a) or (b) above and documents are being furnished which comply with the conditions of transfer set forth in this Security and the Indenture.
 
If none of the foregoing boxes is checked, the Trustee or other Registrar shall not be obligated to register this Security in the name of any Person other than the Holder hereof unless the conditions to any such transfer of registration set forth herein and in Sections 2.07, 2.08 and 2.09 of the Indenture shall have been satisfied.
 
Dated:	 	 	
 
A-13

 
NOTICE:                       The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever.
 
Signature Guarantee:	 	 	 	
 	 	Signature must be guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor acceptable to the Trustee.	 	
 
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
 
The undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which it exercises sole investment discretion, in each case for investment and not with a view to distribution, and that it and any such account is a “Qualified Institutional Buyer” within the meaning of Rule 144A under the Securities Act of 1933 and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
 
Dated:	 	 	
 
NOTICE:                       To be executed by an executive officer
 
TO BE COMPLETED BY PURCHASER IF (b) ABOVE IS CHECKED.
 
The undersigned represents and warrants that the transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the undersigned further certifies that (A) the transfer is not being made to a person in the United States and (1) at the time the buy order was originated, the transferee was outside the United States or such transferor and any Person acting on its behalf reasonably believed and believes that the transferee was outside the United States or (2) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States; (B) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act; (C) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and (D) if the proposed transfer is not being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person.
 
Dated:	 	 	
 
NOTICE:                        To be executed by an executive officer
 
A-14

 
CONVERSION NOTICE
 
TO:         PIXELWORKS, INC.
8100 Nyberg Street, Suite 300
Tualatin, Oregon 97062
Attention: Chief Financial Officer
 
The undersigned registered owner of this Security hereby irrevocably exercises the option to convert this Security, or the portion hereof (which is $1,000 principal amount or a multiple thereof) below designated, into shares of Common Stock in accordance with the terms of the Indenture referred to in this Security, and directs that the shares issuable and deliverable upon such conversion, together with any check in payment for fractional shares and any Securities representing any unconverted principal amount hereof, be issued and delivered to the registered holder hereof unless a different name has been indicated below. If shares or any portion of this Security not converted is to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto. Any amount required to be paid to the undersigned on account of interest accompanies this Security.
 
Dated:	 	 	 	 	
 	 	Your Name:	 	 	
 	 	 	 	(Print your name exactly as it appears on the face of this Security)	
 	 	 	 	 	
 	 	Your Signature:	 	 	
 	 	 	 	(Sign exactly as your name appears on the face of this Security)	
 	 	 	 	 	
 	 	Signature Guarantee*:	 	 	

 	 	Social Security or other Taxpayer Identification Number:	 	 	

Principal amount to be converted (if less than all):	 	$	

*                                         Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
 
A-15

 
Fill in for registration of shares (if to be issued) and Securities (if to be delivered) other than to and in the name of the registered holder:

(Name)	
 	
(Street Address)	
 	
(City, State and Zip Code)	
 
In connection with any conversion of this Security occurring prior to the end of the period referred to in Rule 144(k) under the Securities Act, if any shares of the Common Stock to be issued upon conversion of this Security are to be registered in a name other than that of the undersigned registered owner, the undersigned confirms that without utilizing any general solicitation or general advertising:
 
[Check One]
 
o                                   (a) this Security and the shares of Common Stock to be issued upon conversion of this Security are being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Rule 144A thereunder.
 
or
 
o                                   (b) this Security and the shares of Common Stock to be issued upon conversion of this Security are being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Regulation S thereunder.
 
or
 
o                                   (c) this Security and the shares of Common Stock to be issued upon conversion of this Security are being transferred other than in accordance with (a) or (b) above and documents are being furnished which comply with the conditions of transfer set forth in this Security and the Indenture.
 
If none of the foregoing boxes is checked, the Trustee or other Registrar shall not be obligated to register this Security or the shares of Common Stock to be issued upon conversion of this Security in the name of any Person other than the Holder hereof unless the conditions to any such transfer of registration set forth herein and in Sections 2.07, 2.08 and 2.09 of the Indenture shall have been satisfied.
 
TO BE COMPLETED BY TRANSFEREE IF (a) ABOVE IS CHECKED.
 
The undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which it exercises sole investment discretion, in each case for investment and not with a view to distribution, and that it and any such account is a “Qualified Institutional Buyer” within the meaning of Rule 144A under the Securities Act of 1933 and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
 
Dated:	 	 	
 
NOTICE:                                               To be executed by an executive officer
 
A-16

 
TO BE COMPLETED BY TRANSFEREE IF (b) ABOVE IS CHECKED.
 
The undersigned represents and warrants that the transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the undersigned further certifies that (A) the transfer is not being made to a person in the United States and (1) at the time the buy order was originated, the transferee was outside the United States or such transferor and any Person acting on its behalf reasonably believed and believes that the transferee was outside the United States or (2) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States; (B) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act; (C) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and (D) if the proposed transfer is not being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person.
 
Dated:	 	 	
 
NOTICE:                                               To be executed by an executive officer
 
A-17

 
NOTICE OF EXERCISE OF PURCHASE RIGHT
 
TO:         PIXELWORKS, INC.
8100 Nyberg Street, Suite 300
Tualatin, Oregon 97062
Attention: Chief Financial Officer
 
The undersigned registered owner of this Security hereby irrevocably acknowledges receipt of a notice from Pixelworks, Inc. (the “ Company ”) as to the occurrence of a Fundamental Change with respect to the Company and requests and instructs the Company to repay the entire principal amount of this Security, or the portion thereof (which is $1,000 principal amount or a multiple thereof) below designated, in accordance with the terms of the Indenture referred to in this Security, together with interest (including Liquidated Damages, if any) accrued and unpaid to, but excluding, such date, to the registered holder hereof, in cash.
 
Dated:	 	 	 	 	
 	 	Your Name:	 	 	
 	 	 	 	(Print your name exactly as it appears on
the face of this Security)	
 	 	 	 	 	
 	 	Your Signature:	 	 	
 	 	 	 	(Sign exactly as your name appears on
the face of this Security)	
 	 	 	 	 	
 	 	Signature Guarantee*:	 	 	
 	 	 	 	 	
 	 	Social Security or other Taxpayer Identification Number:	 	 	

Principal amount to be repurchased (if less than all):	 	$	

*                                         Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
 
Serial Number:	

Certificate Number (if Physical Security):	
 
A-18

 
SCHEDULE OF EXCHANGES FOR PHYSICAL SECURITIES(2)
 
The following exchanges of a part of this Global Security for Physical Securities have been made:
 
Date of Exchange	 	Amount of decrease
in Principal Amount
of this Global
Security	 	Amount of increase
in Principal Amount
of this Global
Security	 	Principal Amount of
this Global Security
following such
decrease (or
increase)	 	Signature of
authorized officer of
Trustee	 	

 	 	 	 	 	 	 	 	 	 	

 

(2)                                  This schedule should be included only if the Security is issued in global form.
 
A-19

Exhibit 4.2
 
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO PIXELWORKS, INC. (OR ITS SUCCESSOR) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, CONVERSION OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR OF SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), 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 DEBENTURE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”), AND THIS DEBENTURE AND THE COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS DEBENTURE IS HEREBY NOTIFIED THAT THE SELLER OF THIS DEBENTURE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A OR REGULATION S THEREUNDER.
 
THE HOLDER OF THIS DEBENTURE AGREES FOR THE BENEFIT OF PIXELWORKS, INC. THAT (A) THIS DEBENTURE AND THE COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, (B) THE HOLDER WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO THIS SECURITY OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT, AND (C) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS DEBENTURE FROM IT OF THE RESTRICTIONS REFERRED TO IN (A) AND (B) ABOVE.
 
PIXELWORKS, INC.
 
1.75% Convertible Subordinated Debenture due 2024
 
 	 	CUSIP NO. 72581M AA 5	
 	 	 	
No. 1	 	$125,000,000	
 
PIXELWORKS, INC., an Oregon corporation (the “Company”, which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to
 
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Cede & Co., or its registered assigns, the principal sum of One Hundred Twenty-Five Million U.S. Dollars ($125,000,000) on May 15, 2024.
 
Interest Payment Dates: May 15 and November 15, commencing November 15, 2004.
 
Regular Record Dates: May 1 and November 1.
 
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
 
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IN WITNESS WHEREOF, the Company has caused this Security to be duly executed manually or by facsimile by its duly authorized officers.
 
Dated:
 
 	PIXELWORKS, INC.	
 	 	
 	By:	/s/  ALLEN H. ALLEY 	 	
 	 	Name:	Allen H. Alley	
 	 	Title:	President, Chief Executive
Officer & Chairman	
 	 	 	 	
 	By:	/s/  JEFFREY BOUCHARD	 	
 	 	Name:	Jeffrey Bouchard	
 	 	Title:	Chief Financial Officer, Vice
President-Finance, and Secretary	

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Trustee’s Certificate of Authentication
 
This is one of the 1.75% Convertible Subordinated Debentures due 2024 described in the within-named Indenture.
 
 	WELLS FARGO BANK, NATIONAL
ASSOCIATION,  as Trustee	
 	 	
 	By:	 	/s/  JEANIE MAR	 	
 	 	 	Authorized Signatory	
 	 	Name:	Jeanie Mar	
 	 	Title:	Vice President	
 	
Dated:  May 18, 2004	
 
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REVERSE OF SECURITY
 
PIXELWORKS, INC.
 
1.75% Convertible Subordinated Debenture due 2024
 
Capitalized terms used herein but not defined shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
 
1.                                      Principal and Interest.    Pixelworks, Inc., an Oregon corporation (the “Company”), promises to pay interest on the principal amount of this Security at the Interest Rate from the date of issuance until repayment at Maturity, redemption or purchase. The Company shall pay interest on this Security semiannually in arrears on May 15 and November 15 of each year (each an “ Interest Payment Date ”), commencing November 15, 2004.
 
Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months and for any period shorter than a full semiannual period for which interest is calculated, on the basis of a 30-day month and, for such periods of less than a month, the actual number of days elapsed over a 30-day month.
 
Subject to Section 2.17 of the Indenture, a Holder of any Security at the close of business on a Regular Record Date shall be entitled to receive interest on such Security on the corresponding Interest Payment Date. A Holder of any Security which is converted after the close of business on a Regular Record Date and prior to the corresponding Interest Payment Date (other than any Security whose Maturity is prior to such Interest Payment Date) shall be entitled to receive interest (including Liquidated Damages, if any) on the principal amount of such Security, notwithstanding the conversion of such Security prior to such Interest Payment Date. However, any such Holder which surrenders any such Security for conversion during the period between the close of business on such Regular Record Date and ending with the opening of business on the corresponding Interest Payment Date shall be required to pay the Company an amount equal to the interest (excluding Liquidated Damages, if any) on the principal amount of such Security so converted (but excluding any Defaulted Interest on the principal amount of such Security so converted that exists at the time such Holder surrenders such Security for conversion), which is payable by the Company to such Holder on such Interest Payment Date, at the time such Holder surrenders such Security for conversion. Notwithstanding the foregoing, any such Holder which surrenders for conversion any Security (a) which has been called for redemption by the Company in a notice of redemption given by the Company pursuant to Section 10.04 of the Indenture on a Redemption Date after such Regular Record Date and on or prior to the next succeeding Interest Payment Date or (b) with respect to which the Company has specified a Purchase Date that is after such Regular Record Date and on or prior to the next succeeding Interest Payment Date, in either case, shall be entitled to receive (and retain) such interest and need not pay the Company an amount equal to the interest on the principal amount of such Security so converted at the time such Holder surrenders such Security for conversion.
 
In accordance with the terms of the Registration Rights Agreement, during the first 90 days following a Registration Default (as defined in the Registration Rights Agreement), the Interest Rate borne by this Security shall be increased by 0.25%. From and after the 91st day following such Registration Default, the Interest Rate borne by this Security shall be increased by 0.50%. In no event shall the Interest Rate borne by this Security be increased by more than 0.50%.
 
Any amount of additional interest shall be payable in cash semiannually, in arrears, on each Interest Payment Date and shall cease to accrue on the date the Registration Default is cured. The Holder of this Security is entitled to the benefits of the Registration Rights Agreement.
 
2.                                      Method of Payment.    Interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the person in whose name that Security (or
 
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one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
 
Principal of and interest on, Global Securities shall be payable to the Depositary in immediately available funds.
 
Principal of Physical Securities shall be payable at the office or agency of the Company maintained for such purpose, initially the Corporate Trust Office of the Trustee. Interest on Physical Securities shall be payable by (i) U.S. Dollar check drawn on a bank located in the city where the Corporate Trust Office of the Trustee is located mailed to the address of the Person entitled thereto as such address shall appear in the Register, or (ii) upon application to the Registrar not later than the relevant Record Date by a Holder of an aggregate principal amount of Securities in excess of $5,000,000, wire transfer in immediately available funds.
 
3.                                      Paying Agent and Registrar.    Initially, Wells Fargo Bank, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change the Paying Agent or Registrar without notice to any Holder.
 
4.                                      Indenture.    The Company issued this Security under an Indenture, dated as of May 18, 2004 (the “ Indenture ”), between the Company and Wells Fargo Bank, National Association, as trustee (the “ Trustee ”). The terms of this Security include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (“ TIA ”). 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.
 
5.                                      Optional Redemption.    This Security is not redeemable prior to May 15, 2011. This Security may be redeemed in whole or in part, upon not less than 30 nor more than 60 days’ notice, at any time on or after May 15, 2011, at the option of the Company, at a redemption price equal to 100% of the principal amount of the Securities plus any interest accrued (including Liquidated Damages, if any) but not paid prior to, but excluding, the Redemption Date.
 
If fewer than all the Securities are to be redeemed, the Trustee shall select the particular Securities to be redeemed from the Outstanding Securities by the methods as provided in the Indenture. If any Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed to be the portion selected for redemption ( provided ,  however , that the Holder of such Security so converted and deemed redeemed shall not be entitled to any additional interest payment as a result of such deemed redemption than such Holder would have otherwise been entitled to receive upon conversion of such Security). 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.
 
On and after the Redemption Date, interest shall cease to accrue on Securities or portions of Securities called for redemption, unless the Company defaults in the payment of the Optional Redemption Price and accrued and unpaid interest.
 
Notice of redemption shall be given by the Company to the Holders as provided in the Indenture.
 
6.                                      Purchase Rights.
 
(a)                                 Purchase Right Upon a Fundamental Change.    If a Fundamental Change occurs, the Holder of Securities, at the Holder’s option, shall have the right, in accordance with the provisions of the Indenture, to require the Company to purchase the Securities (or any portion of the principal amount hereof that is at least $1,000 or a multiple thereof;  provided ,  however , that the portion of the principal amount of this Security to be Outstanding after such purchase is at least equal to $1,000) at a purchase price equal to 100% of the principal amount of the Securities to be
 
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purchased (the “Purchase Price”), plus interest accrued (including Liquidated Damages, if any) and unpaid to, but excluding, the Purchase Date.
 
A Company Notice shall be given by the Company to the Holders as provided in the Indenture. To exercise a Purchase Right, a Holder must deliver to the Trustee a written notice as provided in the Indenture.
 
(b)    Purchase by the Company at the Option of the Holder.    Subject to the terms and conditions of the Indenture, each Holder shall have the right to require the Company to purchase all or a portion of their Securities on May 15, 2011, May 15, 2014 and May 15, 2019 (or, if any such date is not a Business Day, on the immediately succeeding Business Day) (each, a “ Put Purchase Date ”), at 100% of the principal amount of the Securities to be so purchased, plus accrued (including Liquidated Damages, if any) and unpaid interest, if any, to, but excluding, such Put Purchase Date (the “ Put Purchase Price ”). On or before the twenty-third (23rd) Business Day prior to each Put Purchase Date, the Company shall provide to the Trustee, the Paying Agent and to all Holders at their respective addresses as shown on the Register, and to beneficial owners of the Securities where required by applicable law, a notice as provided in the Indenture. The Company will be required to purchase only Securities with respect to which a Holder has delivered a Purchase Notice in accordance with the terms and conditions of the Indenture and subject to the satisfaction of the other conditions set forth in the Indenture.
 
7.                                      Conversion Rights.    (a) Subject to and upon compliance with the provisions of the Indenture and the occurrence of one or more of the conditions set forth in clause (d) of this paragraph 7, the Holder of Securities shall be entitled, at such Holder’s option, at any time before the close of business on May 15, 2024, to convert the Holder’s Securities (or any portion of the principal amount hereof which is $1,000 or a multiple thereof), at the principal amount thereof or of such portion thereof into duly authorized, fully paid and nonassessable shares of Common Stock of the Company at the Conversion Rate in effect at the time of conversion.
 
(b)                                In the case of a Security (or a portion thereof) called for redemption, such conversion right in respect of the Security (or such portion thereof) so called shall expire at the close of business on the Business Day immediately preceding the Redemption Date, unless the Company defaults in making the payment due upon redemption. If a Holder exercises its Purchase Right or Put Purchase Right with respect to a Security (or a portion thereof), such conversion right in respect of the Security (or portion thereof) shall expire at the close of business on the Business Day preceding the Purchase Date or Put Purchase Date, as applicable.
 
(c)                                 Each $1,000 principal amount of the Securities shall initially be convertible into 41.0627 shares of Common Stock (referred to as the “Conversion Rate”). The Conversion Price shall be initially equal approximately $24.35 per share of Common Stock. The Conversion Rate shall be adjusted under certain circumstances as provided in the Indenture.
 
(d)                                Regardless of anything else contained herein, Holders may surrender their Securities for conversion into shares of the Company’s Common Stock prior to Stated Maturity in the following circumstances:
 
(i)                                    Conversion Upon Satisfaction of Sale Price Condition.
 
(A)  A Holder may surrender any of its Securities for conversion into shares of the Company’s Common Stock in any calendar quarter (and only during such calendar quarter) after the quarter ending September 30, 2004 if the sale price of the Company’s Common Stock, for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter, is greater than or equal to 130% of the applicable Conversion Price per share of the Company’s Common Stock on such last Trading Day.
 
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(B)  The “sale price” of the Company’s Common Stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and asked prices or, if more than one in either case, the average of the average bid and the average asked prices) on that date as reported in transactions for the principal U.S. securities exchange on which the Company’s Common Stock is traded or, if the Company’s Common Stock is not listed on a U.S. national or regional securities exchange, as reported by the Nasdaq National Market. The sale price shall be determined without reference to after-hours or extended market trading. If the Company’s Common Stock is not listed for trading on a U.S. national or regional securities exchange and not reported by the Nasdaq National Market on the relevant date, the “ sale price ” shall be the last quoted bid price for the Company’s Common Stock in the over-the-counter market on the relevant date as reported by the National Quotation Bureau or similar organization. If the Company’s Common Stock is not so quoted, the “ sale price ” shall be the average of the mid-point of the last bid and asked prices for the Company’s Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.
 
(ii)                                 Conversion Upon Satisfaction of Trading Price Condition.
 
(A)  A Holder may surrender its Securities for conversion into the Company’s Common Stock during the five Business Days immediately following any five consecutive Trading-Day period in which the Trading Price per $1,000 principal amount of Securities (as determined following a request by a Holder of the Securities in accordance with the procedures described below) for each day of that period was less than 98% of the product of the sale price of the Company’s Common Stock and the then applicable Conversion Rate;  provided ,  however , that a Holder may not convert Securities in reliance on this clause (d)(ii) of this paragraph 7 after May 15, 2019 if on any Trading Day during the five consecutive Trading-Day period, the sale price of the Company’s Common Stock was between 100% and 130% of the Conversion Price in effect on such Trading Day.
 
(B)  In connection with any conversion upon satisfaction of the condition set forth in clause (A) above, the Trustee shall have no obligation to determine the Trading Price of the Securities unless the Company has requested such determination, and the Company shall have no obligation to make such request unless the Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Securities would be less than 98% of the product of the sale price of the Company’s Common Stock and the then applicable Conversion Rate; at which time the Company shall instruct the Trustee to determine the Trading Price of the Securities beginning on the next Trading Day and on each successive Trading Day until the trading price is greater than or equal to 98% of the product of the sale price of the Company’s Common Stock and the then applicable Conversion Rate.
 
(iii)                              Conversion Upon Notice of Redemption.    If the Company calls any or all of the Securities for redemption pursuant to the provisions of Article 10 of the Indenture, Holders may convert Securities into the Company’s Common Stock at any time prior to the close of business on the Business Day immediately preceding the Redemption Date, even if the Securities are not otherwise convertible at such time. If a Holder already has delivered a purchase notice with respect to a Security, however, the Holder may not surrender that Security for conversion until the Holder has withdrawn the purchase notice in accordance with this Indenture.
 
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(iv)                             Conversion Upon Specified Corporate Transactions.
 
(A)  If the Company elects to: (1) distribute to all holders of the Company’s Common Stock rights entitling them to purchase shares of the Company’s Common Stock at less than the sale price of a share of the Company’s Common Stock on the Trading Day immediately preceding the declaration date of the distribution, or (2) distribute to all holders of the Company’s Common Stock the Company’s assets, debt securities or rights to purchase the Company’s securities, which distribution has a per share value as determined by the Company’s board of directors exceeding 10% of the sale price of a share of the Company’s Common Stock on the Trading Day immediately preceding the declaration date of the distribution, the Company must notify the Holders of the Securities at least 20 days prior to the ex-dividend date for such distribution. Upon such notice, Holders may surrender their Securities for conversion at any time until the earlier of the close of business on the Business Day immediately prior to the ex-dividend date or the Company’s announcement that such distribution will not take place, even if the Securities are not otherwise convertible at such time. No Holder may exercise this right to convert if the Holder otherwise may participate in the distribution without conversion. The ex-dividend date is the first date upon which a sale of the Common Stock does not automatically transfer the right to receive the relevant distribution from the seller of the Common Stock to its buyer.
 
(B)  If the Company is a party to a consolidation, merger or binding share exchange pursuant to which the Company’s Common Stock would be converted into cash, securities or property, a Holder may surrender Securities for conversion at any time from and after the date that is 15 days prior to the anticipated effective date of the transaction until 15 days after the actual effective date of such transaction, and at the effective time of the transaction, the right to convert a Security into the Company’s Common Stock shall be changed into a right to convert a Security into the kind and amount of cash, securities or other property that the Holder would have received if the Holder had converted its Securities immediately prior to the applicable record date for such transaction. If the transaction also constitutes a Fundamental Change, a Holder may require the Company to purchase all or a portion of its Securities as set forth in Article 11 of the Indenture.
 
(e)                                 To exercise the conversion right, the Holder must surrender the Security (or portion thereof) duly endorsed or assigned to the Company or in blank, at the office of the Conversion Agent, accompanied by a duly signed conversion notice to the Company. Any Security surrendered for conversion during the period between the close of business on any Regular Record Date and the opening of business on the corresponding Interest Payment Date (other than any Security whose Maturity is prior to such Interest Payment Date) shall be accompanied by payment in New York Clearing House funds or other funds acceptable to the Company of an amount equal to the interest (excluding Liquidated Damages, if any) payable on such Interest Payment Date by the Company on the principal amount of the Security being surrendered for conversion (but excluding any overdue interest on the principal amount of such Security so converted that exists at the time such Holder surrenders such Security for conversion). Notwithstanding the foregoing, any such Holder which surrenders for conversion any Security (a) which has been called for redemption by the Company in a notice of redemption given by the Company pursuant to Section 10.04 of the Indenture on a Redemption Date after such Regular Record Date and on or prior to the next succeeding Interest Payment Date or (b) with respect to which the Company has specified a Purchase Date that is after such Regular Record Date and on or prior to the next succeeding Interest Payment Date, in either case, need not pay the Company an amount equal to the interest on the principal amount of such Security so converted at the time such Holder surrenders such Security for conversion.
 
(f)                                   No fractional shares of Common Stock shall be issued upon conversion of any Securities. Instead of any fractional share of Common Stock which would otherwise be issued upon conversion of such Securities, the Company shall pay a cash adjustment as provided in the Indenture.
 
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8.                                      Subordination.    The Indebtedness evidenced by this Security is, to the extent and in the manner provided in the Indenture, subordinated and subject in right of payment to the prior payment in full of all amounts then due on all Senior Debt of the Company. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on such Holder’s behalf to take such action as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee such Holder’s attorney-in-fact for any and all such purposes.
 
9.                                      Denominations; Transfer; Exchange.    The Securities are issuable in registered form, without coupons, in denominations of $1,000 and multiples of $1,000 in excess thereof. A Holder may register the transfer or exchange of Securities in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture.
 
In the event of a redemption in part, the Company shall not be required (a) to register the transfer of, or exchange, Securities for a period of 15 days immediately preceding the date notice is given identifying the serial numbers of the Securities called for such redemption, or (b) to register the transfer of, or exchange, any such Securities, or portion thereof, called for redemption.
 
In the event of redemption, conversion or purchase of the Securities in part only, a new Security or Securities for the unredeemed, unconverted or unpurchased portion thereof shall be issued in the name of the Holder hereof.
 
10.                                Persons Deemed Owners.    The registered Holder of this Security shall be treated as its owner for all purposes.
 
11.                                Unclaimed Money.    The Trustee and the Paying Agent shall pay to the Company any money held by them for the payment of principal or interest that remains unclaimed for two years after the date upon which such payment shall have become due. After payment to the Company, Holders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another Person, and all liability of the Trustee and the Paying Agent with respect to such money shall cease.
 
12.                                Discharge Prior to Redemption or Maturity.    Subject to certain conditions contained in the Indenture, the Company may discharge its obligations under the Securities and the Indenture if (1) (a) all of the Outstanding Securities have become due and payable or shall become due and payable at their scheduled Maturity within one year or (b) all of the Outstanding Securities are scheduled for redemption within one year, and (2) the Company shall have deposited with the Trustee an amount in cash sufficient to pay the principal of and interest on, all of the Outstanding Securities on the date of Maturity or redemption, as the case may be.
 
13.                                Amendment; Supplement; Waiver.    The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Outstanding Securities (or such lesser amount as shall have acted at a meeting pursuant to the provisions of the Indenture). The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon registration of transfer hereof or in exchange herefor
 
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or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security or such other Security.
 
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest (including Liquidated Damages, if any) on this Security at the times, places and rate, and in the coin or currency, herein prescribed or to convert this Security as provided in the Indenture.
 
14.                                Defaults and Remedies.    The Indenture provides that an Event of Default with respect to the Securities occurs when any of the following occurs:
 
(a)                                 the Company defaults in the payment of the principal on any of the Securities when it becomes due and payable, at Maturity, upon redemption or exercise of a Purchase Right or Put Purchase Right or otherwise, whether or not such payment is prohibited by the subordination provisions of Article 13 of the Indenture; or
 
(b)                                the Company defaults in the payment of interest (including Liquidated Damages, if any) on any of the Securities when it becomes due and payable and such default continues for a period of 30 days, whether or not such payment is prohibited by the subordination provisions of Article 13 of the Indenture; or
 
(c)                                 the Company fails to deliver shares of Common Stock, together with cash instead of fractional shares, when those shares of Common Stock or cash instead of fractional shares is required to be delivered following conversion of a Security in accordance with the provisions of Article 12 of the Indenture and that failure continues for 10 days; or
 
(d)                                the Company fails to perform or observe any other term, covenant or agreement contained in the Securities or the Indenture and such default continues for a period of 60 days after written notice of such failure is given as specified in the Indenture; or
 
(e)                                 (i) the Company fails to make any payment by the end of the applicable grace period, if any, after the maturity of any Indebtedness for borrowed money in an amount in excess of $10,000,000, or (ii) there is an acceleration of any Indebtedness for borrowed money in an amount in excess of $10,000,000 because of a default with respect to such Indebtedness without such Indebtedness having been discharged or such acceleration having been cured, waived, rescinded or annulled, in the case of either clause (i) or (ii) above, for a period of 30 days after written notice is given to the Company as specified in the Indenture; or
 
(f)                                   the Company fails, within 30 days after the occurrence of a Fundamental Change, to give to each Holder of Securities notice pursuant to Section 11.03 of the Indenture; or
 
(g)                                there are certain events of bankruptcy, insolvency or reorganization of the Company.
 
If an Event of Default shall occur and be continuing, the principal of all the Securities maybe declared due and payable in the manner and with the effect provided in the Indenture.
 
15.                                Authentication.    This Security shall not be valid until the Trustee (or authenticating agent) executes the certificate of authentication on the other side of this Security.
 
16.                                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 Gifts to Minors Act).
 
17.                                Additional Rights of Holders of Registrable Securities.    In addition to the rights provided to Holders under the Indenture, Holders of Registrable Securities shall have all the rights set forth in the Registration Rights Agreement.
 
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18.                                CUSIP Numbers.    Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on this Security and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on this Security or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
 
19.                                Governing Law.    The Indenture and this Security shall be governed by, and construed in accordance with, the law of the State of New York.
 
20.                                Successor Corporation.    In the event a successor corporation assumes all the obligations of the Company under this Security, pursuant to the terms hereof and of the Indenture, the Company shall be released from all such obligations.
 
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ASSIGNMENT FORM
 
To assign this Security, fill in the form below and have your signature guaranteed: (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                                                                        to transfer this Security on the books of the Company. The agent may substitute another to act for him.
 
Dated:	 	
 	Your Name:	 	 	
 	 	(Print your name exactly as it
appears on the face of this
Security)	
 	 	 	
 	Your Signature:	 	 	
 	 	(Sign exactly as your name
appears on the face of this
Security)	
 	 	 	
 	Signature Guarantee*:	

*                                         Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
 
In connection with any transfer of this Security occurring prior to the end of the period referred to in Rule 144(k) under the Securities Act, the undersigned confirms that without utilizing any general solicitation or general advertising:
 
[Check One]
 
o                                   (a) this Security is being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Rule 144A thereunder.
 
or
 
o                                   (b) this Security is being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Regulation S thereunder.
 
or
 
o                                   (c) this Security is being transferred other than in accordance with (a) or (b) above and documents are being furnished which comply with the conditions of transfer set forth in this Security and the Indenture.
 
If none of the foregoing boxes is checked, the Trustee or other Registrar shall not be obligated to register this Security in the name of any Person other than the Holder hereof unless the conditions to any such transfer of registration set forth herein and in Sections 2.07, 2.08 and 2.09 of the Indenture shall have been satisfied.
 
Dated:	 	 	
 
13

 
NOTICE:                       The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever.
 
Signature
Guarantee:	 	 	
 	Signature must be
guaranteed by a
participant in a
recognized signature
guaranty medallion
program or other
signature guarantor
acceptable to the Trustee.	 	
 
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
 
The undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which it exercises sole investment discretion, in each case for investment and not with a view to distribution, and that it and any such account is a “Qualified Institutional Buyer” within the meaning of Rule 144A under the Securities Act of 1933 and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
 
Dated:	 	 	
 
NOTICE:                       To be executed by an executive officer
 
TO BE COMPLETED BY PURCHASER IF (b) ABOVE IS CHECKED.
 
The undersigned represents and warrants that the transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the undersigned further certifies that (A) the transfer is not being made to a person in the United States and (1) at the time the buy order was originated, the transferee was outside the United States or such transferor and any Person acting on its behalf reasonably believed and believes that the transferee was outside the United States or (2) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States; (B) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act; (C) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and (D) if the proposed transfer is not being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person.
 
Dated:	 	 	
 
NOTICE:                       To be executed by an executive officer
 
14

 
CONVERSION NOTICE
 
TO:	 	PIXELWORKS, INC.	
 	 	8100 Nyberg Street, Suite 300	
 	 	Tualatin, Oregon 97062	
 	 	Attention: Chief Financial Officer	
 
The undersigned registered owner of this Security hereby irrevocably exercises the option to convert this Security, or the portion hereof (which is $1,000 principal amount or a multiple thereof) below designated, into shares of Common Stock in accordance with the terms of the Indenture referred to in this Security, and directs that the shares issuable and deliverable upon such conversion, together with any check in payment for fractional shares and any Securities representing any unconverted principal amount hereof, be issued and delivered to the registered holder hereof unless a different name has been indicated below. If shares or any portion of this Security not converted is to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto. Any amount required to be paid to the undersigned on account of interest accompanies this Security.
 
Dated:	 	
 	Your Name:	 	 	
 	 	(Print your name exactly as it
appears on the face of this
Security)	
 	 	 	
 	Your Signature:	 	 	
 	 	(Sign exactly as your name
appears on the face of this
Security)	
 	 	 	
 	Signature
Guarantee*:	 	 	
 	 	 	 	
 	Social Security or
other Taxpayer
Identification
Number:	 	 	
 	 	 	 	
Principal amount to be converted (if less than all):	$	 	 	 	 	

*                                         Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
 
15

 
Fill in for registration of shares (if to be issued) and Securities (if to be delivered) other than to and in the name of the registered holder:
 
(Name)	
 	
(Street Address)	
 	
(City, State and Zip Code)	
 
In connection with any conversion of this Security occurring prior to the end of the period referred to in Rule 144(k) under the Securities Act, if any shares of the Common Stock to be issued upon conversion of this Security are to be registered in a name other than that of the undersigned registered owner, the undersigned confirms that without utilizing any general solicitation or general advertising:
 
[Check One]
 
o                                   (a) this Security and the shares of Common Stock to be issued upon conversion of this Security are being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Rule 144A thereunder.
 
or
 
o                                   (b) this Security and the shares of Common Stock to be issued upon conversion of this Security are being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Regulation S thereunder.
 
or
 
o                                   (c) this Security and the shares of Common Stock to be issued upon conversion of this Security are being transferred other than in accordance with (a) or (b) above and documents are being furnished which comply with the conditions of transfer set forth in this Security and the Indenture.
 
If none of the foregoing boxes is checked, the Trustee or other Registrar shall not be obligated to register this Security or the shares of Common Stock to be issued upon conversion of this Security in the name of any Person other than the Holder hereof unless the conditions to any such transfer of registration set forth herein and in Sections 2.07, 2.08 and 2.09 of the Indenture shall have been satisfied.
 
TO BE COMPLETED BY TRANSFEREE IF (a) ABOVE IS CHECKED.
 
The undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which it exercises sole investment discretion, in each case for investment and not with a view to distribution, and that it and any such account is a “Qualified Institutional Buyer” within the meaning of Rule 144A under the Securities Act of 1933 and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
 
Dated:	 	 	
 
NOTICE:                       To be executed by an executive officer
 
16

 
TO BE COMPLETED BY TRANSFEREE IF (b) ABOVE IS CHECKED.
 
The undersigned represents and warrants that the transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the undersigned further certifies that (A) the transfer is not being made to a person in the United States and (1) at the time the buy order was originated, the transferee was outside the United States or such transferor and any Person acting on its behalf reasonably believed and believes that the transferee was outside the United States or (2) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States; (B) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act; (C) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and (D) if the proposed transfer is not being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person.
 
Dated:	 	 	
 
NOTICE:                       To be executed by an executive officer
 
17

 
NOTICE OF EXERCISE OF PURCHASE RIGHT
 
TO:	 	PIXELWORKS, INC.	
 	 	8100 Nyberg Street, Suite 300	
 	 	Tualatin, Oregon 97062	
 	 	Attention: Chief Financial Officer	
 
The undersigned registered owner of this Security hereby irrevocably acknowledges receipt of a notice from Pixelworks, Inc. (the “ Company ”) as to the occurrence of a Fundamental Change with respect to the Company and requests and instructs the Company to repay the entire principal amount of this Security, or the portion thereof (which is $1,000 principal amount or a multiple thereof) below designated, in accordance with the terms of the Indenture referred to in this Security, together with interest (including Liquidated Damages, if any) accrued and unpaid to, but excluding, such date, to the registered holder hereof, in cash.
 
Dated:	 	
 	Your Name:	 	 	
 	 	(Print your name exactly as it
appears on the face of this
Security)	
 	 	 	
 	Your Signature:	 	 	
 	 	(Sign exactly as your name
appears on the face of this
Security)	
 	 	 	
 	Signature
Guarantee*:	 	 	
 	 	 	 	
 	Social Security or
other Taxpayer
Identification
Number:	 	 	
 	 	 	 	
Principal amount to be repurchased (if less than all):	$	 	 	 	 	

*                                         Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
 
Serial Number:	 	 	
 	 	 	
Certificate Number (if Physical Security):	 	 	

18

 
SCHEDULE OF EXCHANGES FOR PHYSICAL SECURITIES
 
The following exchanges of a part of this Global Security for Physical Securities have been made:
 
Date of Exchange 	 	Amount of decrease
in Principal Amount
of this Global
Security 	 	Amount of increase
in Principal Amount
of this Global
Security	 	Principal Amount of
this Global Security
following such
decrease (or
increase)	 	Signature of
authorized officer of
Trustee	 	

 	 	 	 	 	 	 	 	 	 	
 
19

Exhibit 4.3
 
PIXELWORKS, INC.
 
1.75% Convertible Subordinated Debentures Due 2024
 
REGISTRATION RIGHTS AGREEMENT
 
May 18, 2004
 
Citigroup Global Markets Inc.
As Representative of the Initial Purchasers
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
 
Ladies and Gentlemen:
 
Pixelworks, Inc., a corporation organized under the laws of Oregon (the “Company”), proposes to issue and sell to certain purchasers (the “Initial Purchasers”), for whom you (the “Representative”) are acting as representative, its 1.75% Convertible Subordinated Debentures Due 2024 (the “Securities”), upon the terms set forth in the Purchase Agreement between the Company and the Representative dated May 12, 2004 (the “Purchase Agreement”) relating to the initial placement (the “Initial Placement”) of the Securities. The Securities will be convertible into fully paid, nonassessable shares of common stock, par value $0.001 per share, of the Company (the “Common Stock”) on the terms, and subject to the conditions, set forth in the Indenture (as defined herein). To induce the Initial Purchasers to enter into the Purchase Agreement and to satisfy a condition to your obligations thereunder, the Company agrees with you for your benefit and the benefit of the holders from time to time of the Securities and the Common Stock issued upon conversion of Securities (including the Initial Purchasers) (each a “Holder” and, collectively, the “Holders”), as follows:
 
1.                                      Definitions.    Capitalized terms used herein without definition shall have their respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following capitalized defined terms shall have the following meanings:
 
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
 
“Affiliate” shall have the meaning specified in Rule 405 under the Act and the terms “controlling” and “controlled” shall have meanings correlative thereto.
 
“Broker-Dealer” shall mean any broker or dealer registered as such under the Exchange Act.
 
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
 
“Closing Date” shall mean the date of the first issuance of the Securities.
 
“Commission” shall mean the Securities and Exchange Commission.
 
“Damages Payment Date” shall mean each Interest Payment Date. For purposes of this Agreement, if no Securities are outstanding, “Damages Payment Date” shall mean each May 15 and November 15.
 
“Deferral Period” shall have the meaning indicated in Section 3(h) hereof.
 
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.

 
“Final Memorandum” shall mean the offering memorandum, dated May 12, 2004, relating to the Securities, including any and all exhibits thereto and any information incorporated by reference therein as of such date.
 
“Holder” shall have the meaning set forth in the preamble hereto.
 
“Indenture” shall mean the Indenture relating to the Securities, dated as of May 18, 2004, between the Company and Wells Fargo Bank, National Association, as trustee, as the same may be amended from time to time in accordance with the terms thereof.
 
“Initial Placement” shall have the meaning set forth in the preamble hereto.
 
“Initial Purchasers” shall have the meaning set forth in the preamble hereto.
 
“Interest Payment Date” shall have the meaning set forth in the Indenture.
 
“Losses” shall have the meaning set forth in Section 5(d) hereof.
 
“Majority Holders” shall mean, on any date, Holders of a majority of the then outstanding shares of Common Stock constituting Registrable Securities (with Holders of Securities deemed to be Holders, for purposes of this definition, of the number of outstanding shares of Common Stock into which such Securities are would be convertible as of such date) registered under a Registration Statement.
 
“Managing Underwriters” shall mean the investment banker or investment bankers and manager or managers that administer an underwritten offering, if any, conducted pursuant to Section 6 hereof.
 
“NASD Rules” shall mean the Conduct Rules and the By-Laws of the National Association of Securities Dealers, Inc.
 
“Notice and Questionnaire” shall mean a written notice delivered to the Company substantially in the form attached as Annex A to the Final Memorandum.
 
“Notice Holder” shall mean, on any date, any Holder of Registrable Securities that has delivered a completed and executed Notice and Questionnaire to the Company on or prior to such date.
 
“Prospectus” shall mean a prospectus included in the Shelf Registration Statement (including, without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A under the Act), 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 the Shelf Registration Statement, and all amendments and supplements thereto, including any and all exhibits thereto and any information incorporated by reference therein.
 
“Purchase Agreement” shall have the meaning set forth in the preamble hereto.
 
“Record Holder” shall mean with respect to any Damages Payment Date, each person who is a Holder on the record date with respect to the Interest Payment Date on which such Damages Payment Date shall occur. In the case of a Holder of shares of Common Stock issued upon conversion of the Securities, “Record Holder” shall mean each person who is a Holder of shares of Common Stock which constitute Registrable Securities on the May 1 or November 1 immediately preceding the Damages Payment Date.
 
“Registrable Securities” shall mean Securities and each share of Common Stock issued upon conversion of Securities other than those that have been (i) registered under the Shelf Registration Statement and disposed of in accordance therewith or (ii) distributed to the public pursuant to Rule 144 under the Act or any successor rule or regulation thereto that may be adopted by the Commission.
 
“Registration Default Damages” shall have the meaning set forth in Section 7 hereof.
 
2

 
“Securities” shall have the meaning set forth in the preamble hereto.
 
“Shelf Registration Period” shall have the meaning set forth in Section 2(c) hereof.
 
“Shelf Registration Statement” shall mean a “shelf” registration statement of the Company pursuant to the provisions of Section 2 hereof which covers some or all of the Registrable Securities on an appropriate form under Rule 415 under the Act, or any similar rule that may be adopted by the Commission, amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
 
“Special Counsel” means Davis Polk & Wardwell or one such other successor counsel as shall be specified by the Majority Holders.
 
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
 
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder.
 
“underwriter” shall mean any underwriter of Registrable Securities in connection with an offering thereof under the Shelf Registration Statement.
 
2.                                      Shelf Registration.    (a) The Company shall as promptly as practicable (but in no event more than 90 days after the Closing Date) use its commercially reasonable best efforts to file with the Commission a Shelf Registration Statement providing for the registration of, and the sale on a continuous or delayed basis by the Holders of, all of the Registrable Securities, from time to time in accordance with the methods of distribution elected by such Holders, pursuant to Rule 415 under the Act or any similar rule that may be adopted by the Commission.
 
(b)                                The Company shall use its commercially reasonable best efforts to cause the Shelf Registration Statement to become or be declared effective under the Act as promptly as practicable (but in no event more than 180 days after the Closing Date).
 
(c)                                 The Company shall use its commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective, supplemented and amended as required by the Act, in order to permit the Prospectus forming part thereof to be usable by Holders for a period (the “Shelf Registration Period”) from the date the Shelf Registration Statement is declared effective by the Commission until the earlier of (i) the second anniversary thereof, (ii) the date upon which there are no Registrable Securities outstanding, (iii) the date as of which all the Registrable Securities have been sold either under Rule 144 under the Act (or any similar provision then in force) or pursuant to the Shelf Registration Statement, or (iv) the date on which all Registrable Securities held by non-Affiliates are eligible to be sold to the public pursuant to Rule 144(k) under the Act.
 
(d)                                The Company shall cause the Shelf Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement or such amendment or supplement, (i) to comply in all material respects with the applicable requirements of the Act; and (ii) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading.
 
(e)                                 At the time the Shelf Registration Statement is declared to be effective, each Holder that became a Notice Holder on or prior to the date ten Business Days prior to such time of effectiveness shall be named as a selling securityholder in the Shelf Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to purchasers of Registrable Securities in accordance with applicable law, subject to the terms and conditions hereof. Following the date that the Shelf Registration Statement is declared effective, each Holder that is not a
 
3

 
Notice Holder wishing to sell Registrable Securities pursuant to a Shelf Registration Statement and related Prospectus agrees to deliver a Notice and Questionnaire (and such other information as is required by Section 3(l)) to the Company prior to any intended distribution by it of Registrable Securities under the Shelf Registration Statement. From and after the date the Shelf Registration Statement is declared effective and during the Shelf Registration Period (but excluding any Deferral Period), the Company shall as promptly as is practicable after the date a Notice and Questionnaire (and such other information as is required by Section 3(l)) is delivered, and in any event within the later of (x) 10 Business Days after such date or (y) 10 Business Days after the expiration of any Deferred Period in effect when the Notice and Questionnaire (and such other information as is required by Section 3(l)) is delivered, file a supplement to the Shelf Registration Statement and related Prospectus as is necessary and permitted to name such Holder as a selling securityholder or if not permitted to name such Holder as a selling securityholder by supplement, file any necessary post-effective amendments to the Shelf Registration Statement or prepare and, if required by applicable law, file an amendment or supplement to any document incorporated by reference or file any other required document so that such Holder is named as selling securityholder, provided that the Company shall be obligated to file such post-effective amendment only once in each of the quarterly periods commencing on April 1, July 1, October 1 and January 1 of each year during the Shelf Registration Period, and use commercially reasonable best efforts to cause such post-effective amendment to be declared effective under the Act as promptly as practicable, but in no event later than the date (the “Amendment Effectiveness Deadline Date”) that is 60 days after the date such post-effective amendment is required to be filed. In connection with such filing, the Company agrees to:
 
(i)  provide such Holder copies of any documents filed pursuant to Section 2(e) hereof; and
 
(ii)  notify such Holder as promptly as practicable after the effectiveness under the Act of any post-effective amendment filed pursuant to Section 2(e) hereof;
 
Notwithstanding anything contained herein to the contrary, the Company shall be under no obligation to name any Holder that is not a Notice Holder as a selling holder in the Shelf Registration Statement or related Prospectus;  provided, however,  that any Holder that becomes a Notice Holder pursuant to the provisions of this Section 2(e) (whether or not such Holder was a Notice Holder at the time the Shelf Registration Statement was declared effective) shall be named as a selling holder in the Shelf Registration Statement or related Prospectus in accordance with the requirements of this Section 2(e).
 
3.                                      Registration Procedures.    The following provisions shall apply in connection with the Shelf Registration Statement.
 
(a)                                 The Company shall:
 
(i)  furnish to the Representative and to Special Counsel for the Notice Holders, not less than two Business Days prior to the filing with the Commission a copy of the Shelf Registration Statement and each amendment thereof and each amendment or supplement, if any, to the Prospectus included therein (including all documents incorporated by reference therein after the initial filing) and shall use its commercially reasonable best efforts to reflect in each such document, when so filed with the Commission, such comments as the Representative reasonably proposes; and
 
(ii)  include information regarding the Notice Holders and the methods of distribution they have elected for their Registrable Securities provided to the Company in Notices and Questionnaires as necessary to permit such distribution by the methods specified therein.
 
4

 
(b)                                The Company shall give notice to the Representatives and the Notice Holders (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the use of the Prospectus until the Company shall have remedied the basis for such suspension):
 
(i)  when the Shelf Registration Statement and any amendment thereto has been filed with the Commission and when the Shelf Registration Statement or any post-effective amendment thereto has become effective;
 
(ii)  of any request by the Commission for any amendment or supplement to the Shelf Registration Statement or the Prospectus or for additional information, to the extent that the Company determines in good faith that the Shelf Registration Statement or Prospectus contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) misleading without the changes requested by the Commission;
 
(iii)  of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement or the institution of any proceeding for that purpose;
 
(iv)  of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities included therein for sale in any jurisdiction or the institution of any proceeding for such purpose; and
 
(v)  of the happening of any event that requires any change in the Shelf Registration Statement or the Prospectus so that, as of such date, they (A) do not contain any untrue statement of a material fact and (B) 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.
 
(c)                                 The Company shall use its commercially reasonable best efforts to obtain as soon as possible the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or the qualification of the securities therein for sale in any jurisdiction in which they have been qualified for sale.
 
(d)                                The Company shall furnish to each Notice Holder, without charge, at least one copy of the Shelf Registration Statement and any post-effective amendment thereto, including all material incorporated therein by reference, and, if a Notice Holder so requests in writing, all exhibits thereto (including exhibits incorporated by reference therein).
 
(e)                                 During the Shelf Registration Period, the Company shall promptly deliver to each Initial Purchaser, each Notice Holder, and any sales or placement agents or underwriters acting on their behalf, without charge, as many copies of the Prospectus (including the preliminary Prospectus) included in the Shelf Registration Statement and any amendment or supplement thereto as any such person may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the foregoing in connection with the offering and sale of the Registrable Securities (except during any Deferral Period, as defined below).
 
(f)                                   Prior to any offering of Registrable Securities pursuant to the Shelf Registration Statement, the Company shall arrange for the qualification of the Registrable Securities for sale under the laws of such jurisdictions as any Notice Holder shall reasonably request and shall maintain such qualification in effect so long as required; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not then so qualified or to take any action in connection therewith that would subject it to taxation or service of process in suits, other than those arising out of the Initial Placement or any offering pursuant to the Shelf Registration Statement, in any jurisdiction where it is not then so subject.
 
5

 
(g)                                Upon the occurrence of any event contemplated by subsections (b)(ii) through (v) above, the Company shall promptly (or within the time period provided for by Section 3(h) hereof, if applicable) prepare a post-effective amendment to the Shelf Registration Statement or an amendment or supplement to the related Prospectus or file any other required document so that, as thereafter delivered to Initial Purchasers of the securities included therein, the Prospectus will not include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
 
(h)                                The Company may suspend each Holder’s use of the Shelf Registration and any Prospectus for a maximum of 45 days in any 90-day period, and not to exceed an aggregate of 120 days in any 12 month period, if (i) the Company, in its reasonable judgment, believes it may possess material non-public information the disclosure of which would be seriously detrimental to the Company and its subsidiaries taken as a whole or (ii) the Shelf Registration Statement and any Prospectus would, in the Company’s judgment, contain a material misstatement or omission as a result of an event that has occurred or is continuing. However, if the disclosure relates to a proposed or pending material business transaction, the disclosure of which the Company determines in good faith would be reasonably likely to impede its ability to consummate such transaction, or would otherwise be seriously detrimental to the Company and its subsidiaries taken as a whole, the Company may extend the suspension period from 45 days to 60 days. Any suspension period described in this Section 3(h) shall be referred to herein as the “Deferral Period.” The Company shall give notice to the Notice Holders that the availability of the Shelf Registration is suspended and upon notice duly given pursuant to Section 10 hereof, each Notice Holder agrees not to sell any Registrable Securities pursuant to the Shelf Registration until such Notice Holder’s receipt of copies of the supplemented or amended Prospectus provided for in Section 3(h) hereof, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company need not specify the nature of the event giving rise to a suspension in any notice to holders of the Securities of the existence of such a suspension. Each Holder, by its acceptance of the Securities, agrees to hold any communication by the Company in response to a notice of a proposed sale in confidence.
 
(i)                                    Not later than the effective date of the Shelf Registration Statement, the Company shall provide a CUSIP number for the Registrable Securities registered under the Shelf Registration Statement and, if required, provide the Trustee with printed certificates for such Securities, free of any restrictive legends, in a form eligible for deposit with The Depository Trust Company.
 
(j)                                    The Company shall comply with all applicable rules and regulations of the Commission and shall make generally available to its security holders an earnings statement satisfying the provisions of Section 11(a) of the Act as soon as practicable after the effective date of the Shelf Registration Statement and in any event no later than 45 days after the end of a 12-month period (or 90 days, if such period is a fiscal year) beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the Shelf Registration Statement.
 
(k)                                 The Company shall cause the Indenture to be qualified under the Trust Indenture Act in a timely manner.
 
(l)                                    The Company may require each Holder of Registrable Securities to be sold pursuant to the Shelf Registration Statement to deliver to the Company a completed and executed Notice and Questionnaire and to furnish to the Company such other information regarding the Holder and the distribution of such Registrable Securities as the Company may from time to time reasonably require for inclusion in the Shelf Registration Statement. The Company may exclude (i) from the initial Shelf Registration Statement the Securities of any Holder that fails to return a completed and executed Notice and Questionnaire and fails to furnish such other information no later than ten Business Days
 
6

 
before the initial effectiveness of the Shelf Registration Statement and (ii) from any post-effective amendment or supplement the Securities of any Holder that fails to return a completed and executed Notice and Questionnaire and fails to furnish such other information no later than ten Business Days before the date of filing any post-effective amendment or supplement to the Shelf Registration Statement contemplated by Section 2(e)(i), as applicable.
 
(m)                              The Company shall enter into customary agreements (including, subject to Section 6, if requested, an underwriting agreement in customary form) and take all other appropriate actions as reasonably requested by the Notice Holders in order to expedite or facilitate the registration or the disposition of the Registrable Securities, and in connection therewith, if an underwriting agreement is entered into, cause the same to contain indemnification provisions and procedures no less favorable than those set forth in Section 5 hereof.
 
(n)                                The Company shall:
 
(i)  make reasonably available for inspection during normal business hours by the Notice Holders of Registrable Securities to be registered thereunder, any underwriter participating in any disposition pursuant to the Shelf Registration Statement, and any attorney, accountant or other agent retained by the Holders or any such underwriter all relevant financial and other records and pertinent corporate documents of the Company and its subsidiaries;
 
(ii)  cause the Company’s officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by the Notice Holders or any such underwriter, attorney, accountant or agent in connection with any the Shelf Registration Statement as is customary for similar due diligence examinations; provided that the inspection and information gathering pursuant to clause (i) and (ii) shall be coordinated by a single party (or a single counsel (which shall be the Special Counsel) on behalf of the parties so inspecting and gathering);
 
(iii)  make such representations and warranties to the Holders of Registrable Securities registered thereunder and the underwriters in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering those matters set forth in the Purchase Agreement;
 
(iv)  obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the Managing Underwriters, if any) addressed to each selling Holder and the underwriters, if any, covering such matters as are customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Holders and underwriters;
 
(v)  obtain “comfort” letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Shelf Registration Statement), addressed to each selling Holder of Registrable Securities registered thereunder and the underwriters, if any, in customary form and covering matters of the type customarily covered in “comfort” letters in connection with primary underwritten offerings; and
 
(vi)  deliver such documents and certificates as may be reasonably requested by the Majority Holders or the Managing Underwriters, if any, including those to evidence compliance with Section 3(i) hereof and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company.
 
Regardless of the foregoing, the actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (n) shall only be performed in connection with an underwritten offering pursuant to Section 6 hereof and only if requested by the underwriters thereof.
 
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(o)                                In the event that any Broker-Dealer shall underwrite any Registrable Securities or participate as a member of an underwriting syndicate or selling group or “assist in the distribution” (within the meaning of the NASD Rules) thereof, whether as a Holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall use its commercially reasonable efforts to assist such Broker-Dealer in complying with the NASD Rules.
 
(p)                                The Company shall upon (i) the filing of the initial Shelf Registration Statement and (ii) the effectiveness of the initial Shelf Registration Statement, announce the same, in each case by release to Reuters Economic Services and Bloomberg Business News.
 
(q)                                The Company shall use its commercially reasonable best efforts to take all other steps necessary to effect the registration of the Registrable Securities covered by the Shelf Registration Statement.
 
4.                                      Registration Expenses.    The Company shall bear all expenses incurred in connection with the performance of its obligations under Sections 2 and 3 hereof and shall reimburse the Holders for the reasonable fees and disbursements of one firm or counsel (which shall be the Special Counsel) to act as counsel for the Holders in connection therewith. The Holders will bear their individual selling expenses, including commissions and discounts and transfer taxes.
 
5.                                      Indemnification and Contribution.    (a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities covered by the Shelf Registration Statement, each Initial Purchaser, the directors, officers, employees, Affiliates and agents of each such Holder or Initial Purchaser and each person who controls any such Holder or Initial Purchaser within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement as originally filed or in any amendment thereof, or in any preliminary Prospectus or the Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any preliminary Prospectus or the Prospectus, in the light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action;  provided, however,  that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability 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 the party claiming indemnification specifically for inclusion therein;  provided further,  that the foregoing indemnity agreement of the Company shall not inure to any Holder (or any director, officer, employee, Affiliate, or agent thereof, or any person who controls such Holder) on account of any such loss, claim, damage or liability caused by any such untrue statement, alleged untrue statement, omission or alleged omission made in a preliminary prospectus (A) if such Holder failed to send or deliver a copy of the final Prospectus at the time required by the Act to the person asserting the claim from which such loss, claim, damage or liability arises and the final Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission or (B) such untrue statement or alleged untrue statement or such omission or alleged omission is corrected in an amendment or supplement to the Prospectus and, having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented, such Holder thereafter fails to deliver such Prospectus as so amended or supplemented at the time required by the Act;  provided further  that the foregoing indemnity agreement
 
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of the Company shall not inure to any Holder (or any director, officer, employee, Affiliate, or agent thereof, or any person who controls such Holder) to the extent that any such Holder effects any sale of Registrable Securities during a Deferral Period. This indemnity agreement shall be in addition to any liability that the Company may otherwise have.
 
The Company also agrees to indemnify as provided in this Section 5(a) or contribute as provided in Section 5(d) hereof to Losses of each underwriter, if any, of Registrable Securities registered under the Shelf Registration Statement, its directors, officers, employees, Affiliates or agents and each person who controls such underwriter on substantially the same basis as that of the indemnification of the Initial Purchasers and the selling Holders provided in this paragraph (a) and shall, if requested by any Holder, enter into an underwriting agreement reflecting such agreement, as provided in Section 3(n) hereof.
 
(b)                                Each Holder of securities covered by the Shelf Registration Statement (including each Initial Purchaser that is a Holder, in such capacity) severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Shelf Registration Statement and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each such Holder, but only with reference to written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement shall be acknowledged by each Notice Holder that is not an Initial Purchaser in such Notice Holder’s Notice and Questionnaire and shall be in addition to any liability that any such Notice Holder may otherwise have.
 
(c)                                 Promptly after receipt by an indemnified party under this Section 5 or notice of the commencement of any action, such indemnified party will, 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 commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel (including local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the indemnified party or parties except as set forth below);  provided, however,  that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel (including local counsel) to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding
 
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in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
 
(d)                                In the event that the indemnity provided in paragraph (a) or (b) of this Section 5 is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party shall have a joint and several obligation to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending loss, claim, liability, damage or action) (collectively “Losses”) to which such indemnified party may be subject in such proportion as is appropriate to reflect the relative benefits received by such indemnifying party, on the one hand, and such indemnified party, on the other hand, from the Initial Placement and the Shelf Registration Statement which resulted in such Losses;  provided, however,  that in no case shall any Initial Purchaser be responsible, in the aggregate, for any amount in excess of the purchase discount or commission applicable to such Security, as set forth in the Final Memorandum, nor shall any underwriter be responsible for any amount in excess of the underwriting discount or commission applicable to the securities purchased by such underwriter under the Shelf Registration Statement which resulted in such Losses. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the indemnifying party and the indemnified party shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of such indemnifying party, on the one hand, and such indemnified party, on the other hand, in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the Initial Placement (before deducting expenses) as set forth in the Final Memorandum. Benefits received by the Initial Purchasers shall be deemed to be equal to the total purchase discounts and commissions as set forth on the cover page of the Final Memorandum, and benefits received by any other Holders shall be deemed to be equal to the value of receiving Securities registered under the Act. Benefits received by any underwriter shall be deemed to be equal to the total underwriting discounts and commissions, as set forth on the cover page of the Prospectus forming a part of the Shelf Registration Statement which resulted in such Losses. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information provided by the indemnifying party, on the one hand, or by the indemnified party, on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The parties agree that it would not be just and equitable if contribution were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 5, each person who controls a Holder within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of such Holder shall have the same rights to contribution as such Holder, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Shelf Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d).
 
(e)                                 The provisions of this Section 5 shall remain in full force and effect, regardless of any investigation made by or on behalf of any Holder or the Company or any of the indemnified persons referred to in this Section 5, and shall survive the sale by a Holder of Registrable Securities covered by the Shelf Registration Statement.
 
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6.                                      Underwritten Registrations.    (a) The Registrable Securities may be sold in an underwritten offering only with the consent of the Company, and, in such event, the Managing Underwriters shall be selected by the Majority Holders; provided that such Managing Underwriters are reasonably acceptable to the Company.
 
(b)                                No person may participate in any underwritten offering pursuant to the Shelf Registration Statement unless such person (i) agrees to sell such person’s Registrable Securities on the basis reasonably provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements; and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.
 
7.                                      Registration Defaults.    (a) If:
 
(i)  the Shelf Registration Statement is not filed with the Commission on or prior to the 90th day following the Closing Date; or
 
(ii)  the Shelf Registration Statement is not declared effective by the Commission on or prior to the 180th day following the Closing Date; or
 
(iii)  the Company has failed to perform its obligations set forth in Section 2(e)(i) within the time required therein; or
 
(iv)  any post-effective amendment to a Shelf Registration Statement filed pursuant to Section 2(e) has not become effective under the Securities Act on or prior to the Amendment Effectiveness Deadline Date; or
 
(v)  the aggregate duration of Deferral Periods in any period exceeds the number of days permitted in respect of such period pursuant to Section 3(i) hereof (in each case except as the result of filing a post-effective amendment solely to add additional selling securityholders);
 
(each such event referred to in the foregoing clauses (i) through (v), a “Registration Default”), the Company hereby agrees to pay liquidated damages (“Liquidated Damages”) with respect to the Registrable Securities from and including the day following the Registration Default to but excluding the day on which the Registration Default has been cured:
 
(A)  in respect of the Registrable Securities that are Securities, to each holder thereof, (x) with respect to the first 90-day period during which a Registration Default shall have occurred and be continuing, in an amount per year equal to an additional 0.25% of the principal amount of the Securities and (y) with respect to the period commencing on the 91st day following the day the Registration Default shall have occurred and be continuing, in an amount per year equal to an additional 0.50% of the principal amount of the Securities; provided that in no event shall Liquidated Damages accrue at a rate per year exceeding 0.50% of the principal amount of the Securities; and
 
(B)  in respect of Registrable Securities that are shares of Common Stock issued upon conversion of the Securities, to each holder thereof, (x) with respect to the first 90-day period in which a Registration Default shall have occurred and be continuing, in an amount per year equal to 0.25% of the principal amount of the converted Securities and (y) with respect to the period commencing the 91st day following the day the Registration Default shall have occurred and be continuing, in an amount per year equal to 0.50% of the principal amount of the converted Securities; provided, however, that in no event shall Liquidated Damages accrue at a rate per year exceeding 0.50% of the principal amount of the converted Securities.
 
(b)                                All accrued Liquidated Damages shall be paid in arrears to Record Holders by the Company on each Damages Payment Date by wire transfer of immediately available funds or by federal funds
 
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check. Following the cure of all Registration Defaults relating to any particular Securities or share of Common Stock, the accrual of Liquidated Damages with respect to such Securities or share of Common Stock will cease.
 
All obligations of the Company set forth in this Section 7 that are outstanding with respect to any Registrable Securities at the time such security ceases to be a Registrable Security shall survive until such time as all such obligations with respect to such Registrable Security shall have been satisfied in full.
 
8.                                      No Inconsistent Agreements.    The Company has not entered into, and agrees not to enter into, any agreement with respect to its securities that is inconsistent with the rights granted to the Holders herein or that otherwise conflicts with the provisions hereof. The parties agree and acknowledge that other shareholders of the Company may be entitled to participate in the Shelf Registration Statement, on parity with the Holders, pursuant to a registration rights agreement with the Company existing on the date hereof.
 
9.                                      Amendments and Waivers.    The provisions of this Agreement may not be amended, qualified, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company has obtained the written consent of the Holders of a majority of the then outstanding shares of Common Stock constituting Registrable Securities (with Holders of Securities deemed to be Holders, for purposes of this Section, of the number of outstanding shares of Common Stock into which such Securities are would be convertible as of the date on which such consent is requested);  provided  that, with respect to any matter that adversely affects the rights of any Initial Purchaser hereunder, the Company shall obtain the written consent of each such Initial Purchaser against which such amendment, qualification, supplement, waiver or consent is to be effective;  provided, further,  that no amendment, qualification, supplement, waiver or consent with respect to Section 7 hereof shall be effective as against any Holder of Registered Securities unless consented to in writing by such Holder; and  provided, further,  that the provisions of this Article 9 may not be amended, qualified, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company has obtained the written consent of the Initial Purchasers and each Holder.
 
10.                                Notices.    All notices, requests and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail, telex, facsimile or air courier guaranteeing overnight delivery:
 
(a)                                 if to a Holder, at the most current address given by such holder to the Company in accordance with the provisions of the Notice and Questionnaire, which address initially is, with respect to each Holder, the address of such Holder maintained by the Registrar under the Indenture;
 
(b)                                if to the Initial Purchasers or the Representatives, initially at the address or addresses set forth in the Purchase Agreement; and
 
(c)                                 if to the Company, initially at its address set forth in the Purchase Agreement.
 
All such notices and communications shall be deemed to have been duly given on the earliest of (i) at the time delivered, if delivered by hand-delivery; (ii) three business days after being deposited in the mail, postage prepaid, if mailed by first-class mail; (iii) when receipt is acknowledged and confirmed as sent by sender’s telex or facsimile machine, if sent by telex or facsimile transmission; and (iv) on the day delivered, if sent by overnight air courier guaranteeing next day delivery.
 
The Initial Purchasers or the Company by notice to the other parties may designate additional or different addresses for subsequent notices or communications.
 
11.                                Remedies.    Each party, in addition to being entitled to exercise all rights provided to it herein, in the Indenture or in the Purchase Agreement or granted by law, including recovery of
 
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liquidated or other damages, will be entitled to specific performance of its rights under this Agreement. Each party agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees to waive in any action for specific performance the defense that a remedy at law would be adequate.
 
12.                                Successors.    This Agreement shall inure to the benefit of and be binding upon the parties hereto, their respective successors and assigns, including, without the need for an express assignment or any consent by the Company thereto, subsequent Holders of Registrable Securities, and the indemnified persons referred to in Section 5 hereof. The Company hereby agrees to extend the benefits of this Agreement to any Holder of Registrable Securities, and any such Holder may specifically enforce the provisions of this Agreement as if an original party hereto.
 
13.                                Counterparts.    This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
 
14.                                Headings.    The section headings used herein are for convenience only and shall not affect the construction hereof.
 
15.                                Applicable Law.    This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed in the State of New York. The parties hereto each hereby waive any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement.
 
16.                                Severability.    In the event that any one of 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 shall be enforceable to the fullest extent permitted by law.
 
17.                                Securities Held by the Company, etc.    Whenever the consent or approval of Holders of Registrable Securities is required hereunder, Registrable Securities held by the Company or its Affiliates (other than subsequent Holders of Securities if such subsequent Holders are deemed to be Affiliates solely by reason of their holdings of such Registrable Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage.
 
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company and the several Initial Purchasers.
 
 	Very truly yours,	
 	 	
 	Pixelworks, Inc.	
 	 	
 	By:	/s/  JEFFREY BOUCHARD	 	
 	 	Name: Jeffrey Bouchard
Title: Chief Financial Officer, Vice
President-Finance, and Secretary	
 	 	 	
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.	 	 	
 	 	 	
Citigroup Global Markets Inc.	 	 	
 	 	 	
By	/s/  RICHARD GALLIVAN	 	 	
 	Name: Richard Gallivan
Title: Managing Director	 	
 	 	
For itself and the other several Initial
Purchasers named in Schedule I to the
Purchase Agreement.	 	

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Exhibit 4.4
 
PIXELWORKS, INC.
 
$125,000,000 1.750% Convertible Subordinated Debentures Due 2024
 
Purchase Agreement
 
May 12, 2004
 
Citigroup Global Markets Inc.
As Representative of the Initial Purchasers
388 Greenwich Street
New York, New York  10013
 
Ladies and Gentlemen:
 
Pixelworks, Inc., a corporation organized under the laws of the State of Oregon (the “Company”), proposes to issue and sell to the several parties named in Schedule I hereto (the “Initial Purchasers”), for whom you (the “Representative”) are acting as representative, $125,000,000 principal amount of its 1.750% Convertible Subordinated Debentures Due 2024 (the “Firm Securities”).  The Company also proposes to grant to the Initial Purchasers an option to purchase up to $25,000,000 additional principal amount of such Convertible Subordinated Debentures if the Initial Purchasers exercise their option to buy such additional Convertible Subordinated Debentures (the “Option Securities” and, together with the Firm Securities, the “Securities”). The Securities are convertible into shares of Common Stock, par value $0.001 per share (the “Common Stock”), of the Company at the conversion price set forth herein.  The Securities are to be issued under an indenture (the “Indenture”), to be dated as of the Closing Date, between the Company and Wells Fargo Bank, N.A., as trustee (the “Trustee”).  The Securities will have the benefit of a registration rights agreement (the “Registration Rights Agreement”), to be dated as of the Closing Date, between the Company and the Initial Purchasers, pursuant to which the Company will agree to register the resale of the Securities under the Act subject to the terms and conditions therein specified.  To the extent there are no additional parties listed on Schedule I other than you, the term Representative as used herein shall mean you as the Initial Purchasers, and the term Initial Purchasers shall mean either the singular or plural as the context requires.  The use of the neuter in this Agreement shall include the feminine and masculine wherever appropriate.  Certain terms used herein are defined in Section 18 hereof.
 
The sale of the Securities to the Initial Purchasers will be made without registration of the Securities or the Common Stock issuable upon conversion thereof under the Act in reliance upon exemptions from the registration requirements of the Act.
 
In connection with the sale of the Securities, the Company has prepared a preliminary offering memorandum, dated May 11, 2004 (as amended or supplemented at the date thereof, including any and all exhibits thereto and any information incorporated by reference therein, the “Preliminary Memorandum”), and a final offering memorandum, dated May 12, 2004 (as amended or supplemented at the Execution Time, including any and all exhibits thereto

 
and any information incorporated by reference therein, the “Final Memorandum”).  Each of the Preliminary Memorandum and the Final Memorandum sets forth certain information concerning the Company, the Securities and the Common Stock issuable upon conversion thereof.  The Company hereby confirms that it has authorized the use of the Preliminary Memorandum and the Final Memorandum, and any amendment or supplement thereto, in connection with the offer and sale of the Securities by the Initial Purchasers.  Unless stated to the contrary, any references herein to the terms “amend”, “amendment” or “supplement” with respect to the Final Memorandum shall be deemed to refer to and include any information filed under the Exchange Act subsequent to the Execution Time that is incorporated by reference therein.
 
1.  Representations and Warranties.  The Company represents and warrants to each Initial Purchaser as set forth below in this Section 1.
 
(a)                                  The Preliminary Memorandum, at the date thereof, did not contain any 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.  At the Execution Time, on the Closing Date and on any settlement date, the Final Memorandum did not and will not (and any amendment or supplement thereto, at the date thereof, at the Closing Date and on any settlement date, will not) contain any 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;  provided ,  however , that the Company makes no representation or warranty as to the information contained in or omitted from the Preliminary Memorandum or the Final Memorandum, or any amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Initial Purchasers through the Representative specifically for inclusion therein.
 
(b)                                 None of the Company, its Affiliates, or any person acting on its or their behalf has, directly or indirectly, made offers or sales of any security, or solicited offers to buy, any security under circumstances that would require the registration of the Securities or the Common Stock issuable upon conversion thereof under the Act.
 
(c)                                  None of the Company, its Affiliates, or any person acting on its or their behalf has: (i) engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Securities or (ii) engaged in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities or the Common Stock issuable upon conversion thereof; and each of the Company, its Affiliates and each person acting on its or their behalf has complied with the offering restrictions requirement of Regulation S.
 
(d)                                 The Securities satisfy the eligibility requirements of Rule 144A(d)(3) under the Act.
 
(e)                                  Assuming (i) the accuracy of the representations and warranties of the Initial Purchasers made herein and (ii) the due performance by the Initial Purchasers of the covenants and agreements made by them herein, no registration under the Act of the Securities is
 
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required for the offer and sale of the Securities to or by the Initial Purchasers in the manner contemplated herein and in the Final Memorandum.
 
(f)                                    The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Memorandum will not be, required to register as an “investment company” as defined in the Investment Company Act.
 
(g)                                 The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d) of the Exchange Act.
 
(h)                                 The Company has not paid or agreed to pay to any person any compensation for soliciting another in connection with the offering of the Securities (except as contemplated in this Agreement).
 
(i)                                     The Company has not taken, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
 
(j)                                     Each of the Company and its subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized with full corporate or limited liability company, as applicable, power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Memorandum, and is duly qualified to do business as a foreign corporation or limited liability company, as applicable, and is in good standing under the laws of each jurisdiction in which the nature of its business or ownership or leasing of property requires such qualification, except where the failure to be so qualified and in good standing would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on (i) the ability of the Company to perform its obligations under this Agreement, the Indenture or the Registration Rights Agreement or (ii) the properties, business operations, earnings, financial condition or prospects of the Company and its subsidiaries taken as a whole (“Material Adverse Effect”).
 
(k)                                  All the outstanding shares of capital stock or limited liability company interests, as the case may be, of each subsidiary have been duly authorized and validly issued and are fully paid (in the case of shares of capital stock) and nonassessable (in the case of shares of capital stock), and, except as otherwise set forth in the Final Memorandum, are owned by the Company either directly or through wholly owned subsidiaries free and clear of any security interest, claim, lien or encumbrance.
 
(l)                                     The Company’s authorized equity capitalization is as set forth in the Final Memorandum; the capital stock of the Company conforms to the description thereof contained in the Final Memorandum; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable; the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and, when issued upon conversion of the Securities against payment of the conversion price and in
 
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accordance with the terms of the Securities, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities or the shares of Common Stock issuable upon conversion thereof; and, except as set forth in the Final Memorandum, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding.
 
(m)                               The statements in the Final Memorandum under the headings “Certain U.S. Federal Income Tax Considerations”, “Description of Debentures”, “Description of Capital Stock”, “Plan of Distribution” and “Notice to Investors” fairly summarize the matters therein described.
 
(n)                                 This Agreement has been duly authorized, executed and delivered by the Company; the Indenture has been duly authorized and, assuming due authorization, execution and delivery thereof by the Trustee, when executed and delivered by the Company, will constitute a legal, valid, binding instrument enforceable against the Company in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity); the Securities have been duly authorized, and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers, will have been duly executed and delivered by the Company and will constitute the legal, valid and binding obligations of the Company entitled to the benefits of the Indenture (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity) and will be convertible into Common Stock in accordance with their terms; and the Registration Rights Agreement has been duly authorized by the Company and, when executed and delivered by the Company, will constitute the legal, valid, binding and enforceable instrument of the Company (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity), provided that no representation is made with respect to Section 8 thereof.
 
(o)                                 No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, in the Indenture or in the Registration Rights Agreement, except such as may be required under the blue sky laws of any domestic or foreign jurisdiction in which the Securities are offered and sold and, in the case of the Registration Rights Agreement, such as may be required under the Act and the Trust Indenture Act.
 
(p)                                 None of the execution and delivery of the Indenture, this Agreement or the Registration Rights Agreement, the issuance and sale of the Securities or the issuance of the Common Stock upon conversion thereof, or the consummation of any other of the transactions herein or therein contemplated, or the fulfillment of the terms hereof or thereof will conflict with, result in a breach or violation or imposition of any lien, charge or encumbrance upon any
 
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property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws of the Company or any of its subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which its or their property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of its or their properties, other than, with respect to clause (ii) and (iii), any such conflict, breach, violation, or imposition that would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
 
(q)                                 The consolidated historical financial statements, together with the related notes and schedules, of the Company and its consolidated subsidiaries included or incorporated by reference in the Final Memorandum present fairly the financial condition, results of operations and cash flows of the Company as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of Regulation S-X and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as otherwise noted therein); the selected consolidated financial data set forth under the caption “Selected Consolidated Financial Data” in the Final Memorandum fairly present, on the basis stated in the Final Memorandum, the information included therein.
 
(r)                                    No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property is pending or, to the knowledge of the Company, threatened, in any case that would reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto).
 
(s)                                  Each of the Company and its subsidiaries owns or leases all such properties that are material to the business of the Company and its subsidiaries taken as a whole, free and clear of all liens, encumbrances, claims and defects that are not set forth or contemplated in the Final Memorandum but that would reasonably be expected to have a Material Adverse Effect.
 
(t)                                    Neither the Company nor any of its subsidiaries is in violation or default of (i) any provision of its charter or bylaws; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiary or any of its properties, as applicable, other than, with respect to clauses (ii) and (iii), any such violation or default (1) that would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect or (2) that is set forth or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto).
 
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(u)                                 KPMG LLP, who have certified certain financial statements of the Company and its consolidated subsidiaries and delivered their report with respect to the audited consolidated financial statements and schedules included or incorporated by reference in the Final Memorandum, are independent public accountants with respect to the Company within the meaning of the Act.
 
(v)                                 There are no stamp or other issuance or transfer taxes or duties or other similar fees or charges required to be paid in connection with the execution and delivery of this Agreement or the issuance or sale by the Company of the Securities or upon the issuance of Common Stock upon the conversion thereof.
 
(w)                               The Company has filed all non-U.S., U.S. federal, state and local tax returns that are required to be filed or has requested extensions thereof (except (i) in any case in which the failure so to file would not have a Material Adverse Effect and (ii) as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto)) and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not have a Material Adverse Effect and except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto).
 
(x)                                   No labor problem or dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is threatened or imminent that in any case would reasonably be expected to have a Material Adverse Effect except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto), and except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto).
 
(y)                                 The Company and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are customary in the businesses in which they are engaged. Except as would not have a Material Adverse Effect and except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto): (1) all policies of insurance and fidelity or surety bonds insuring the Company or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; (2) the Company and its subsidiaries are in compliance with the terms of such policies and instruments; and (3) there are no claims by the Company or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; neither the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for. To the knowledge of the Company, the Company and its subsidiaries will be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto).
 
(z)                                   No subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on
 
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such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary of the Company, except as described in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto).
 
(aa)                            The Company and its subsidiaries possess all licenses, certificates, permits and other authorizations issued by the appropriate U.S. federal, state or non-U.S. regulatory authorities necessary to conduct their respective businesses except any such certificate, authorization or permit the failure of which to so possess, singly or in the aggregate, would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, and neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, in each case, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto).
 
(bb)                          The Company and each of its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
 
(cc)                            The Company and its subsidiaries are (i) in compliance with any and all applicable non-U.S., U.S. federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”); (ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) have not received notice of any actual or potential liability under any Environmental Law, except where such non-compliance with Environmental Laws, failure to receive or comply with required permits, licenses or other approvals, or liability would not, individually or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto).  Except as set forth in the Final Memorandum, to the knowledge of the Company, neither the Company nor any of its subsidiaries has been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.
 
(dd)                          The Company and each of its subsidiaries believe that the costs and liabilities of Environmental Laws on the business, operations and properties of the Company (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) would not, singly or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Final Memorandum (exclusive of any supplement thereto).
 
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(ee)                            The Company and each of its subsidiaries has fulfilled its obligations in all material respects, if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974 (“ERISA”) and the regulations and published interpretations thereunder with respect to each “plan” (as defined in Section 3(3) of ERISA and such regulations and published interpretations) in which employees of the Company are eligible to participate and each such plan is in compliance in all material respects with the presently applicable provisions of ERISA and such regulations and published interpretations. The Company and each of its subsidiaries has not incurred any unpaid material liability to the Pension Benefit Guaranty Corporation (other than for the payment of premiums in the ordinary course) or to any such plan under Title IV of ERISA.
 
(ff)                                The Company and each of its subsidiaries own, possess, license or have other rights to use, except as set forth in the Final Memorandum, all patents, patent applications, trade and service marks, trade and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual property (collectively, the “Intellectual Property”) material to the conduct of the Company’s business as now conducted.  Except as set forth in the Final Memorandum, (a) to the Company’s knowledge, there is no material infringement by third parties of any such Intellectual Property; (b) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s rights in or to any such Intellectual Property, except to the extent that, if the subject of an unfavorable decision, finding or ruling, individually or in the aggregate, it would not be reasonably likely to have a Material Adverse Effect; (c) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property, except to the extent that if the subject of an unfavorable decision, finding or ruling, individually or in the aggregate, it would not be reasonably likely to have a Material Adverse Effect; (d) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others that the Company infringes or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of others; (e) to the Company’s knowledge, there is no prior art that may render any U.S. patent held by the Company invalid or any U.S. patent application held by the Company that is material to the conduct of the business of the Company unpatentable which has not been disclosed to the U.S. Patent and Trademark Office.
 
(gg)                          The subsidiaries of the Company would not, individually or in the aggregate, be a “significant subsidiary” of the Company (as defined in Rule l-02 of Regulation S-X under the Act).
 
(hh)                          The Company has not taken any action or omitted to take any action (such as issuing any press release relating to any Securities without an appropriate legend) which may result in the loss by any of the Initial Purchasers of the ability to rely on any stabilization safe harbor provided by the Financial Services Authority under the Financial Services and Markets Act 2000 (the “FSMA”). The Company has been informed of the guidance relating to stabilization provided by the Financial Services Authority, in particular in Section MAR 2 Annex 2G of the Financial Services Handbook.
 
(ii)                                  None of the Company, its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or Affiliate of the Company or any of its
 
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subsidiaries has taken any action, directly or indirectly, that would result in a violation by such Persons of Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA.
 
(jj)                                  The operations of the Company and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
 
(kk)                            None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or Affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will not directly or indirectly use the proceeds of the Offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
 
(ll)                                  Prior to the date hereof, the Company has furnished to the Representative letters, each substantially in the form of Exhibit A hereto, duly executed by each officer and director of the Company and addressed to the Representative.
 
Any certificate signed by any officer of the Company and delivered to the Representative or counsel for the Initial Purchasers pursuant to Section 6 in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Initial Purchaser.
 
2.  Purchase and Sale.  (a)  Subject to the terms and conditions and in reliance upon the representations and warranties and covenants herein set forth, the Company agrees to sell to each Initial Purchaser, and each Initial Purchaser agrees, severally and not jointly, to purchase from the Company, at a purchase price of 97% of the principal amount thereof, plus accrued interest, if any, from May 18, 2004 to the Closing Date, the principal amount of Firm Securities set forth opposite such Initial Purchaser’s name in Schedule I hereto.
 
(b)                                 Subject to the terms and conditions and in reliance upon the representations and warranties and covenants herein set forth, the Company hereby grants an option to the several Initial Purchasers to purchase, severally and not jointly, the Option
 
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Securities at the same purchase price as the Initial Purchasers shall pay for the Firm Securities, plus accrued interest, if any, from May 18, 2004 to the settlement date for the Option Securities.  The option may be exercised in whole or in part at any time (but not more than once) on or before the 30th day after the date of the Final Memorandum upon written notice by the Representative to the Company setting forth the principal amount of Option Securities as to which the several Initial Purchasers are exercising the option and the settlement date.  Delivery of the Option Securities, and payment therefor, shall be made as provided in Section 3 hereof.  The principal amount of Option Securities to be purchased by each Initial Purchaser shall be the same percentage of the total principal amount of Option Securities to be purchased by the several Initial Purchasers as such Initial Purchaser is purchasing of the Firm Securities, subject to such adjustments as you in your absolute discretion shall make to eliminate any fractional Securities.  No Option Securities shall be sold or delivered unless the Firm Securities previously have been, or simultaneously are, sold and delivered, to the Initial Purchasers.
 
3.                                      Delivery and Payment.  (a)  Delivery of and payment for the Firm Securities and the Option Securities (if the option provided for in Section 2(b) hereof shall have been exercised on or before the third Business Day prior to the Closing Date) shall be made at  7:00A.M., California time, on May 18, 2004 or at such time on such later date not more than three Business Days after the foregoing date as the Representative shall designate, which date and time may be postponed by agreement between the Representative and the Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing Date”).  Delivery of the Securities to the Representative for the respective accounts of the Initial Purchasers shall be made in the form of one or more permanent global securities deposited with the Trustee as custodian for the Depository Trust Company (“DTC”) and registered in the name of Cede & Co., as nominee for DTC, against payment by the several Initial Purchasers through the Representative of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to the account specified by the Company.
 
(b)                                 If the option provided for in Section 2(b) hereof is exercised after the third Business Day prior to the Closing Date, the Company will deliver the Option Securities (at the expense of the Company) to the Representative in the same manner described above on the date specified by the Representative (which shall be within three Business Days after exercise of said option) for the respective accounts of the several Initial Purchasers, against payment by the several Initial Purchasers through the Representative of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to the account specified by the Company.  If settlement for the Option Securities occurs after the Closing Date, the Company will deliver to the Representative in the same manner described above on the settlement date for the Option Securities, and the obligation of the Initial Purchasers to purchase the Option Securities shall be conditioned upon receipt of, supplemental opinions, certificates and letters confirming as of such date the opinions, certificates and letters delivered on the Closing Date pursuant to Section 6 hereof.
 
4.  Offering by Initial Purchasers.  (a)  Each Initial Purchaser acknowledges that the Securities and the Common Stock issuable upon conversion thereof have not been and will not be registered under the Act and may not be offered or sold within the United States or to, or
 
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for the account or benefit of, U.S. persons, except pursuant to an exemption from, or in a  transaction not subject to, the registration requirements of the Act.
 
(b)  Each Initial Purchaser, severally and not jointly, represents and warrants to and agrees with the Company that:
 
(i)                                     it has not offered or sold, and will not offer or sell, any Securities within the United States or to, or for the account or benefit of, U.S. persons (x) as part of their distribution at any time or (y) otherwise until one year after the later of the commencement of the offering and the date of closing of the offering except:
 
(A)                              to those it reasonably believes to be “qualified institutional buyers” (as defined in Rule 144A under the Act), or
 
(B)                                in accordance with Rule 903 of Regulation S;
 
(ii)                                  neither it nor any person acting on its behalf has made or will make offers or sales of the Securities in the United States by means of any form of general solicitation or general advertising (within the meaning of Regulation D) in the United States;
 
(iii)                               in connection with each sale pursuant to Section 4(b)(i)(A), it has taken or will take reasonable steps to ensure that the purchaser of such Securities is aware that such sale is being made in reliance on Rule 144A;
 
(iv)                              any information provided by the Initial Purchasers to publishers of publicly available databases about the terms of the Securities shall include a statement that the Securities have not been registered under the Act and are subject to restrictions under Rule 144A under the Act and Regulation S;
 
(v)                                 it will not engage in hedging transactions with regard to the Securities prior to the expiration of the distribution compliance period as (defined in Regulation S), unless in compliance with the Act;
 
(vi)                              neither it, nor any of its Affiliates nor any person acting on its or their behalf has engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities;
 
(vii)                           it has not entered and will not enter into any contractual arrangement with any distributor (within the meaning of Regulation S) with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company;
 
(viii)                        it and they have complied and will comply with the offering restrictions requirement of Regulation S;
 
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(ix)                                at or prior to the confirmation of sale of Securities (other than a sale of Securities pursuant to Section 4(b)(i)(A) of this Agreement), it shall have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the distribution compliance period (within the meaning of Regulation S) a confirmation or notice to substantially the following effect:
 
“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the “Act”) and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until one year after the later of the commencement of the offering and the date of closing of the offering, except in either case in accordance with Regulation S or Rule 144A under the Act.  Additional restrictions on the offer and sale of the Securities and the Common Stock issuable upon conversion thereof are described in the offering memorandum for the Securities.  Terms used in this paragraph have the meanings given to them by Regulation S.”
 
(x)                                   it acknowledges that additional restrictions on the offer and sale of the Securities and the Common Stock issuable upon conversion thereof are described in the Final Memorandum;
 
(xi)                                it has not offered or sold and, prior to the date six months after the date of issuance of the Securities, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or as agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995;
 
(xii)                             it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom;
 
(xiii)                          it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of any Securities, in circumstances in which section 21(1) of the FSMA does not apply to the Company; and
 
(xiv)                         it is an “accredited investor” within the meaning of Regulation D under the Securities Act.
 
5.  Agreements.  The Company agrees with each Initial Purchaser that:
 
(a)                                  The Company will furnish to each Initial Purchaser and to counsel for the Initial Purchasers, without charge, during the period referred to in paragraph (c) below, as many
 
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copies of the Final Memorandum and any amendments and supplements thereto as they may reasonably request.
 
(b)                                 Before amending or supplementing the Final Memorandum, including by filing any document under the Exchange Act that is incorporated by reference in the Final Memorandum, the Company will furnish to the Representative a copy of each such proposed amendment, supplement, or document to be incorporated and will not use any such proposed amendment, supplement or incorporated document to which the Representative reasonably object.  The Company will promptly advise the Representative when any document filed under the Exchange Act that is incorporated by reference in the Final Memorandum shall have been filed with the Commission.
 
(c)                                  If at any time prior to the completion of the sale of the Securities by the Initial Purchasers (as determined by the Representative), any event occurs as a result of which the Final Memorandum, as then amended or supplemented, would include in the judgment of the Company any 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, or if it should be necessary to amend or supplement the Final Memorandum to comply with applicable law, the Company will promptly (i) notify the Representative of any such event; (ii) subject to the requirements of paragraph (b) of this Section 5, prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any supplemented or amended Final Memorandum to the several Initial Purchasers and counsel for the Initial Purchasers without charge in such quantities as they may reasonably request.
 
(d)                                 The Company will use commercially reasonable efforts to arrange, if necessary, for the qualification of the Securities for sale by the Initial Purchasers under the laws of such jurisdictions as the Representative may designate and will maintain such qualifications in effect so long as required for the sale of the Securities;  provided  that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.  The Company will promptly advise the Representative of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
 
(e)                                  During the period of two years after the Closing Date or the settlement date for the Option Securities, if later, the Company will not, and will not permit any of its Affiliates to, resell any Securities or Shares of Common Stock issued upon conversion thereof which constitute “restricted securities” under Rule 144 that have been acquired by any of them.
 
(f)                                    None of the Company, its Affiliates, or any person acting on its or their behalf will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Securities or Common Stock issuable upon conversion thereof under the Act.
 
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(g)                                 None of the Company, its Affiliates, or any person acting on its or their behalf will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Securities in the United States.
 
(h)                                 So long as any of the Securities or the Common Stock issuable upon the conversion thereof are “restricted securities” within the meaning of Rule 144(a)(3) under the Act, the Company will, during any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, provide to each holder of such restricted securities and to each prospective purchaser (as designated by such holder) of such restricted securities, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Act.  This covenant is intended to be for the benefit of the holders, and the prospective purchasers designated by such holders, from time to time of such restricted securities.
 
(i)                                     None of the Company, its Affiliates, or any person acting on its or their behalf will engage in any directed selling efforts with respect to the Securities, and each of them will comply with the offering restrictions requirement of Regulation S.  Terms used in this paragraph have the meanings given to them by Regulation S.
 
(j)                                     Any information provided by the Company to publishers of publicly available databases about the terms of the Securities shall include a statement that the Securities have not been registered under the Act and are subject to restrictions under Rule 144A under the Act and Regulation S.
 
(k)                                  The Company will cooperate with the Representative and use its reasonable best efforts to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
 
(l)                                     The Company will reserve and keep available at all times, free of pre-emptive rights, the full number of Shares of Common Stock issuable upon conversion of the Securities.
 
(m)                               The Company will not for a period of 75 days following the Execution Time, without the prior written consent of Citigroup Global Markets, Inc., offer, sell or contract to sell, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any Affiliate of the Company or any person in privity with the Company or any Affiliate of the Company), directly or indirectly, or announce the offering of, any debt securities issued or guaranteed by the Company, any shares of Common Stock or any securities convertible into, or exchangeable for, shares of Common Stock (other than the Securities);  provided ,  however , that the Company may (i) issue and sell Common Stock or securities convertible into or exchangeable for Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company described in the Final Memorandum and in effect at the Execution Time or pursuant to the Company’s 1997 Stock Incentive Plan as proposed to be amended in the Company’s Proxy Statement on Schedule 14A, filed on April 26, 2004, and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of
 
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warrants outstanding at the Execution Time and described in the Final Memorandum or (ii) file the shelf registration statement covering resales of the Securities or the shares of Common Stock issuable upon conversion thereof.
 
(n)                                 The Company will not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
 
(o)                                 Between the date hereof and the Closing Date, the Company will not do or authorize any act or thing that would result in an adjustment of the conversion price.
 
(p)                                 The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation of the Indenture and the Registration Rights Agreement, the issuance of the Securities, the fees of the Trustee and the issuance of the Common Stock upon conversion of the Securities; (ii) the preparation, printing or reproduction of the Preliminary Memorandum and the Final Memorandum and each amendment or supplement to either of them; (iii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Preliminary Memorandum and the Final Memorandum, and all amendments or supplements to either of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iv) the preparation, printing, authentication, issuance and delivery of certificates for the Securities; (v) any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (vi) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (vii) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions specified pursuant to Section 5(d) (including filing fees and the reasonable fees and expenses of counsel for the Initial Purchasers relating to such registration and qualification); (viii) admitting the Securities for trading in the PORTAL Market; (ix) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (x) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder. Except as provided in Section 7, the Initial Purchasers will pay their own costs and expenses, including the fees of its counsel and transfer taxes on the resale of any Securities.
 
(q)                                 The Company will not take any action or omit to take any action (such as issuing any press release relating to any Securities without an appropriate legend) which may result in the loss by any of the Initial Purchases of the ability to rely on any stabilization safe harbor provided by the Financial Services Authority under the FSMA.
 
6.  Conditions to the Obligations of the Initial Purchasers.  The obligations of the Initial Purchasers to purchase the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties of the Company contained herein at the Execution Time, the Closing Date and any settlement date pursuant to Section 3
 
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hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
 
(a)                                  The Company shall have requested and caused Ater Wynne LLP, counsel for the Company, to furnish to the Representative its opinion, dated the Closing Date and addressed to the Representative, to the effect that:
 
(i)                                     the Company has been duly incorporated and is validly existing as a corporation under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Memorandum, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified and in good standing would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect;
 
(ii)                                  the Company’s authorized equity capitalization is as set forth in the Final Memorandum and the capital stock of the Company conforms to the description thereof contained in the Final Memorandum; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable; the shares of Common Stock initially issuable upon conversion of the Securities have been duly authorized and, when issued upon conversion of the Securities against payment of the conversion price, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities; the holders of the outstanding shares of capital stock of the Company are not entitled to any preemptive or other rights to subscribe for the Securities or the shares of Common Stock issuable upon conversion thereof; and, except as set forth in the Final Memorandum, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
 
(iii)                               the Indenture has been duly authorized, executed and delivered; the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers under this Agreement, will be validly executed and delivered; the Registration Rights Agreement has been duly authorized, executed and delivered; and the statements set forth under the heading “Description of Capital Stock” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Common Stock, provide a fair summary of such provisions;
 
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(iv)                              to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property that is not adequately disclosed in the Final Memorandum, except in each case for such proceedings that, if the subject of an unfavorable decision, ruling or finding would not singly or in the aggregate, have a Material Adverse Effect;
 
(v)                                 such counsel has no reason to believe that at the Execution Time or on the Closing Date the Final Memorandum contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial information contained therein and other than the cover page and sections of the Final Memorandum entitled “Notice to Investors”, “Summary – The Offering”, “Risk Factors – Risks Related to the Debentures”, “Description of Debentures”, “Material United States Federal Incomes Tax Considerations”, “Plan of Distribution” and “Transfer Restrictions”, as to which such counsel need express no opinion);
 
(vi)                              this Agreement has been duly authorized, executed and delivered by the Company;
 
(vii)                           neither the execution and delivery of the Indenture, this Agreement or the Registration Rights Agreement, the issuance and sale of the Securities, nor the consummation of any other of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, including the issuance of the Common Stock upon the conversion of the Securities, will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or asset of the Company or of any of its subsidiaries pursuant to, (i) the charter or by-laws of the Company or any of its subsidiaries; (ii) any agreement which the Company has filed with the Commission as an exhibit to its Annual Report on Form 10-K for the year ended December 31, 2003; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company, any of its subsidiaries or any of their respective properties; and
 
(viii)                        the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Memorandum will not be, required to register as an “investment company” as defined in the Investment Company Act.
 
In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than Oregon or the federal laws of the United States the State of Oregon, to the extent they deem proper and specified in such opinion, upon the opinion of O’Melveny and Myers LLP; and (B) as to matters of fact, to the extent they deem
 
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proper, on certificates of responsible officers of the Company and public officials.  References to the Final Memorandum in this Section 6(a) include any amendment or supplement thereto at the Closing Date.
 
(b)                                 The Company shall have requested and caused O’Melveny & Myers LLP, counsel for the Company, to furnish to the Representative its opinion, dated the Closing Date and addressed to the Representative, to the effect that:
 
(i)                                     the Securities conform to the description thereof contained in the Final Memorandum in all material respects;
 
(ii)                                  assuming the due authorization, execution and delivery under Oregon law, the Indenture constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity); assuming the due authorization under Oregon law, the Securities, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers under this Agreement, will constitute legal, valid, binding and enforceable obligations of the Company entitled to the benefits of the Indenture (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity) and will be convertible into Common Stock in accordance with their terms; assuming the due authorization, execution and delivery under Oregon law, the Registration Rights Agreement constitutes the legal, valid, binding and enforceable instrument of the Company (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity), except as rights to indemnification and contribution under the Registration Rights Agreement may be limited by applicable law;
 
(iii)                               the statements in the Final Memorandum on the cover page and under the headings “Notice to Investors”, “Summary – The Offering”, “Risk Factors – Risks Related to the Debentures”, “Description of Debentures”, “Material United States Federal Income Tax Considerations”, “Plan of Distribution” and “Transfer Restrictions” insofar as they purport to summarize the provisions of laws and documents referred to therein are accurate in all material respects;
 
(iv)                              no consent, approval, authorization, filing with or order of any New York court or governmental agency or body is required in connection with the transactions contemplated herein, in the Indenture or in the Registration Rights Agreement, except such as may be required under the blue sky or securities laws of any jurisdiction in which the Securities are offered or sold (as to which such counsel need express no opinion beyond that set forth in paragraph (v)
 
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below) and such other approvals (specified in such opinion) as have been obtained; and
 
(v)                                 assuming the accuracy of the representations and warranties and compliance with the agreements contained herein (without regard to the representation found in Section 1(f)), no registration under the Act of the Securities or the Common Stock issuable upon conversion thereof, and no qualification of an indenture under the Trust Indenture Act, are required for the sale and delivery of the Securities by the Company to the Initial Purchasers or the offer and sale by the Initial Purchasers of the Securities in the manner contemplated herein and in the Final Memorandum.
 
In rendering such opinion, such counsel may rely  as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.  References to the Final Memorandum in this Section 6(b) include any amendment or supplement thereto at the Closing Date.
 
(c)                                  The Representative shall have received from Davis Polk & Wardwell, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
 
(d)                                 The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chairman of the Board or the President and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that:
 
(i)                                     the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
 
(ii)                                  since the date of the most recent financial statements included or incorporated by reference in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto).
 
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(e)                                  At the Execution Time and at the Closing Date, KPMG LLP shall have furnished to the Initial Purchasers letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representative, independent accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Final Memorandum (including any amendment or supplement thereto at the date of the applicable letter); provided that the letter delivered at the Closing Date shall use a “cut-off date” not earlier than the date hereof.
 
(f)                                    Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) (A) any change in capital stock (except for stock option exercises and exchangeable shares exchanged), increase in long-term debt or any decreases in consolidated net current assets (except for a decrease resulting from the use of cash and cash equivalents to purchase long-term marketable securities) or consolidated shareholders’ equity as compared with amounts shown on the March 31, 2004, unaudited condensed consolidated balance sheet incorporated by reference in the Final Memorandum or (B) any decreases, as compared with the corresponding period in the preceding year, in consolidated net revenues, operating income or in the total or per-share amounts of net income, in each case, specified in the letter or letters referred to in paragraph (e) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto).
 
(g)                                 The Securities shall have been designated as PORTAL-eligible securities in accordance with the rules and regulations of the NASD and the Securities shall be eligible for clearance and settlement through The Depository Trust Company.
 
(h)                                 Prior to the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit A hereto from each officer and director of the Company.
 
(i)                                     The Company shall have caused the shares of Common Stock initially issuable upon conversion of the Securities to be approved for listing, subject to issuance, on the Nasdaq National Market.
 
(j)                                     Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
 
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If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representative.  Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
 
The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Initial Purchasers, at Davis Polk & Wardwell, 1600 El Camino Real, Menlo Park, California  94025, on the Closing Date.
 
7.  Reimbursement of Expenses.  If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Initial Purchasers set forth in Section 6 hereof is not satisfied or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Initial Purchasers, the Company will reimburse the Initial Purchasers severally through Citigroup on demand for all expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.
 
8.  Indemnification and Contribution.  (a) The Company agrees to indemnify and hold harmless each Initial Purchaser, the directors, officers, employees, Affiliates and agents of each Initial Purchaser and each person who controls any Initial Purchaser within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other U.S. federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Memorandum, the Final Memorandum or in any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action;  provided ,  however , that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made in the Preliminary Memorandum, the Final Memorandum, or in any amendment thereof or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Initial Purchaser through the Representative specifically for inclusion therein.  This indemnity agreement will be in addition to any liability that the Company may otherwise have.
 
(b)                                 Each Initial Purchaser severally, and not jointly, agrees to indemnify and hold harmless the Company, each of its directors, each of its officers, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Initial Purchaser, but only with
 
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reference to written information relating to such Initial Purchaser furnished to the Company by or on behalf of such Initial Purchaser through the Representative specifically for inclusion in the Preliminary Memorandum, the Final Memorandum or in any amendment or supplement thereto.  This indemnity agreement will be in addition to any liability that any Initial Purchaser may otherwise have.  The Company acknowledges that (i) the statements set forth in the last paragraph of the cover page regarding delivery of the Securities and (ii), under the heading “Plan of Distribution”, (A) the 4th sentence of the 1st paragraph and the entirety of the 3rd paragraph and (B) the 10th paragraph related to stabilization, syndicate covering transactions and penalty bids in the Preliminary Memorandum and the Final Memorandum constitute the only information furnished in writing by or on behalf of the Initial Purchasers for inclusion in the Preliminary Memorandum, the Final Memorandum or in any amendment or supplement thereto.
 
(c)                                  Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above.  The indemnifying party shall be entitled to appoint counsel (including local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the indemnified party or parties except as set forth below);  provided ,  however , that such counsel shall be satisfactory to the indemnified party.  Notwithstanding the indemnifying party’s election to appoint counsel (including local counsel) to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party.  An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
 
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(d)                                 In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Initial Purchasers severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending any loss, claim, damage, liability or action) (collectively “Losses”) to which the Company and one or more of the Initial Purchasers may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Initial Purchasers on the other from the offering of the Securities;  provided ,  however , that in no case shall any Initial Purchaser be responsible for any amount in excess of the purchase discount or commission applicable to the Securities purchased by such Initial Purchaser hereunder.  If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Initial Purchasers severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Initial Purchasers on the other in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations.  Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Initial Purchasers shall be deemed to be equal to the total purchase discounts and commissions.  Relative fault shall be determined by reference to, among other things, whether any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Initial Purchasers on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission.  The Company and the Initial Purchasers agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation that does not take account of the equitable considerations referred to above.  Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.  For purposes of this Section 8, each person who controls an Initial Purchaser within the meaning of either the Act or the Exchange Act and each director, officer, employee, Affiliate and agent of an Initial Purchaser shall have the same rights to contribution as such Initial Purchaser, and each person who controls the Company within the meaning of either the Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d).
 
9.  Default by an Initial Purchaser.  If any one or more Initial Purchasers shall fail to purchase and pay for any of the Securities agreed to be purchased by such Initial Purchaser hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Initial Purchasers shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Securities set forth opposite their names in Schedule I hereto bears to the aggregate principal amount of Securities set forth opposite the names of all the remaining Initial Purchasers) the Securities which the defaulting Initial Purchaser or Initial Purchasers agreed but failed to purchase;  provided , however , that in the event that the aggregate principal amount of Securities which the defaulting Initial Purchaser or Initial Purchasers agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule I hereto, the remaining
 
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Initial Purchasers shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Initial Purchasers do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Initial Purchaser or the Company.  In the event of a default by any Initial Purchaser as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representative shall determine in order that the required changes in the Final Memorandum or in any other documents or arrangements may be effected.  Nothing contained in this Agreement shall relieve any defaulting Initial Purchaser of its liability, if any, to the Company or any nondefaulting Initial Purchaser for damages occasioned by its default hereunder.
 
10.  Termination.  This Agreement shall be subject to termination in the absolute discretion of the Representative, by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such time (i) trading in the Company’s Common Stock shall have been suspended by the Commission or the Nasdaq National Market or trading in securities generally on the New York Stock Exchange or the Nasdaq National Market shall have been suspended or limited or minimum prices shall have been established on the Nasdaq National Market; (ii) a banking moratorium shall have been declared either by U.S. federal or New York State authorities; or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representative, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto).
 
11.  Representations and Indemnities to Survive.  The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Initial Purchasers set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Initial Purchasers or the Company or any of the indemnified persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities.  The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.
 
12.  Notices.  All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representative, will be mailed, delivered or telefaxed to the Citigroup General Counsel (fax no.: (212) 816-7912) and confirmed to Citigroup at 388 Greenwich Street, New York, New York 10013, Attention:  General Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to (503) 612-0848 and confirmed to it at Pixelworks, Inc., 8100 Nyberg Street Suite 300, Tualatin, Oregon 97062, attention of the Legal Department with a copy to Jeff Bouchard.
 
13.  Successors.  This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the indemnified persons referred to in Section 8 hereof and their respective successors, and, except as expressly set forth in Section 5(h) hereof, no other person will have any right or obligation hereunder.
 
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14.  Applicable Law.  This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.   The parties hereto each hereby waive any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement.
 
15.  Waiver of Tax Confidentiality.  Notwithstanding anything herein to the contrary, purchasers of the Securities (and each employee, representative or other agent of the Company) may disclose to any and all persons, without limitation of any kind, the U.S. tax treatment and U.S. tax structure of any transaction contemplated herein and all materials of any kind (including opinions or other tax analyses) that are provided to the purchasers of the Securities relating to such U.S. tax treatment and U.S tax structure, other than any information for which nondisclosure is reasonably necessary in order to comply with applicable securities laws.
 
16.  Counterparts.  This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
 
17.  Headings.  The section headings used herein are for convenience only and shall not affect the construction hereof.
 
18.  Definitions.  The terms that follow, when used in this Agreement, shall have the meanings indicated.
 
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
 
“Affiliate” shall have the meaning specified in Rule 501(b) of Regulation D.
 
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York.
 
“Citigroup” shall mean Citigroup Global Markets Inc.
 
“Code” shall mean the Internal Revenue Code of 1986, as amended.
 
“Commission” shall mean the Securities and Exchange Commission.
 
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
 
“Execution Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
 
“Investment Company Act” shall mean the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission promulgated thereunder.
 
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“NASD” shall mean the National Association of Securities Dealers, Inc.
 
“PORTAL” shall mean the Private Offerings, Resales and Trading through Automated Linkages system of the NASD.
 
“Regulation D” shall mean Regulation D under the Act.
 
“Regulation S” shall mean Regulation S under the Act.
 
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder.
 
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company and the several Initial Purchasers.

 	Very truly yours,	
 	 	
 	Pixelworks, Inc.	

 	By:	  /s/Allen H. Alley	 	
 	 	Name:  Allen H. Alley	
 	 	Title:  President, CEO and Chairman	
 	 	
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.	 	
 	 	
Citigroup Global Markets Inc.	 	
 	 	
By:	 /s/ Richard Gallivan	 	 	
 	Name:  Richard Gallivan	 	
 	Title:  Managing Director	 	
 	 	
For itself and the other several Initial
Purchasers named in Schedule I to the
foregoing Agreement.	 	

27

 
SCHEDULE I
 
Initial Purchasers	 	Principal Amount
of Firm
Securities to be
Purchased	 	
Citigroup Global Markets Inc	 	$	116,250,000	 	
 	 	 	 	
D.A. Davidson & Co.	 	$	8,750,000	 	
 	 	 	 	
Total	 	$	125,000,000	 	
 
28

 
EXHIBIT A
 
May       , 2004
 
Citigroup Global Markets Inc.
As Representative of the Initial Purchasers
388 Greenwich Street
New York, New York  10013
 
Ladies and Gentlemen:
 
This letter is being delivered to you in connection with the execution of Purchase Agreement (the “Purchase Agreement”) dated as of the date hereof between Pixelworks, Inc., an Oregon corporation (the “Company”) and you as representative of a group of Initial Purchasers named therein, relating to an offering of Convertible Debentures Due 2024, which will be convertible into Shares of Common Stock, par value $0.001 per share (the “Securities”), of the Company.
 
In order to induce you and the other Initial Purchasers to enter into the Purchase Agreement, the undersigned will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective disposition due to cash settlement or otherwise) by the undersigned or any  affiliate of the undersigned or any person in privity with the undersigned or any affiliate of the undersigned) directly or indirectly, including filing (or participation in the filing of) a registration statement with the U.S. Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the U.S. Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period of 75 days after the date of the Purchase Agreement. A transfer of shares of capital stock of the Company or any securities convertible or exercisable or exchangeable for such capital stock to an immediate family member or trust for no consideration or by bona fide gift may be made, provided that the transferee or donee, as applicable, shall execute and deliver to Citigroup Global Markets, Inc. a duplicate form of this lock-up agreement.
 
If for any reason the Purchase Agreement shall be terminated prior to the Closing Date (as defined in the Purchase Agreement), the agreement set forth above shall likewise be terminated.

 	Very truly yours,	
 	 	
 	By:	 	 	
 	 	Name:	
 	 	Title:	
 
A-1

Exhibit 10.1
 
FIRST AMENDMENT OF LEASE
 
This First Amendment of Lease (“First Amendment”) is entered into effective as of the 1st day of June, 2004, by and between SOUTHCENTER III & IV INVESTORS, LLC, a Delaware limited liability company (the “Landlord”), and Pixelworks, Inc., an Oregon corporation (the “Tenant”).
 
RECITALS
 
A.                                   Landlord and Tenant entered into that certain Lease Agreement dated April 16, 1999 (the “Lease”), pursuant to which Tenant leased from Landlord the floor area consisting of approximately 23,400 rentable square feet (“Premises”) located at 7720 SW Mohawk Street, Tualatin, OR 97062, and more particularly described in Exhibit A to the Lease.
 
B.                                     The parties now wish to extend the term of the Lease, and make certain other amendments to the Lease as set forth below.  Capitalized terms not defined herein shall have the same meaning as set forth in the Lease.  References herein to the Lease shall include this First Amendment and the Lease, except where the context otherwise requires.
 
TERMS AND CONDITIONS
 
NOW, THEREFORE, in consideration of the above recitals, the mutual covenants hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
 
1.                                      Recitals and Conflicts. The foregoing recitals are true and correct and incorporated herein by this reference.  In the event of any conflict between any of the terms and provisions of the Lease and this Amendment, the latter controls.
 
2.                                      Premises. The Premises as described in the Lease shall be increased to 24,113 rentable square feet, as more particularly shown on Exhibit A attached hereto and incorporated by this reference.  The increase in size reflects a re-measurement of the Premises in accordance with NAIOP standards and not an actual expansion of the usable area in the Premises.  The provisions of Exhibit B regarding improvements to the Lease have been fulfilled and Exhibit B hereby deleted from the Lease. Tenant acknowledges that Landlord is not obligated to make any improvements to the Premises with respect to this Lease extension and that the Premises are in satisfactory condition “as is”.
 
3.                                      Lease Term Extension. The current Lease Term expires on May 31, 2004 (the “Current Term”). The Lease Term is hereby extended for twenty six (26) months commencing June 1, 2004 and ending July 31, 2006 (the “Extension Term”). Tenant has no further options to renew or extend the Lease and Section 56 of the Lease regarding the previous renewal option is deleted.
 
4.                                      Base Rent. During the Extension Term, Tenant shall pay to Landlord, in advance on the first day of each month, without further notice or demand and without abatement, offset, rebate, credit or deduction for any reason whatsoever, the monthly installments listed in the following table (the “Base Rent”):
 
Months	 	Sq. Ft.	 	Base Rate per Square Foot	 	Annual Base Rent	 	Monthly Base Rent	 	
 	 	 	 	 	 	 	 	 	 	
6/1/04 – 7/31/04	 	24,113	 	x$0	 	=$0	 	=$0	 	
8/1/04 – 5/31/05	 	24,113	 	x$18.44	 	=$444,643.72	 	=$37,053.64	 	
6/1/05 – 7 /31/06	 	24,113	 	x$18.99	 	=$457,905.87	 	=$38,158.82	 	
 
5.                                      Brokers. Landlord and Tenant each represents and warrants to the other that neither it nor its officers or agents nor anyone acting on its behalf has dealt with any real estate broker in the negotiation or making of this First Amendment, except that the parties agree and consent that the Landlord is represented by CB Richard Ellis Real Estate Services, Inc., and the Tenant is represented by Integrated Commercial Property
 
1

 
Services (ICPS). Each party agrees to indemnify and hold harmless the other from any claim or claims, and costs and expenses, including attorneys’ fees, incurred by the indemnified party in conjunction with any such claim or claims of any other broker or brokers to a commission in connection with this First Amendment as a result of the actions of the indemnifying party.
 
6.                                      Attorney’s Fees. In the event of any action at law or in equity between the parties to enforce any of the provisions hereof, any unsuccessful party to such litigation shall pay to the successful party all costs and expenses, including reasonable attorneys’ fees (including costs and expenses incurred in connection with all appeals) incurred by the successful party, and these costs, expenses and attorneys’ fees may be included in and as part of the judgment.  A successful party shall be any party who is entitled to recover its costs of suit, whether or not the suit proceeds to final judgment.
 
7.                                      Miscellaneous. The Lease as modified herein remains in full force and effect and is hereby ratified by Landlord and Tenant.  This First Amendment shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns.  Neither party shall record this First Amendment.  This First Amendment contains the entire agreement of Landlord and Tenant with respect to the extension of the Lease Term, and may not be amended or modified except by an instrument executed in writing by Landlord and Tenant.
 
8.                                      Counterparts. This First Amendment may be signed in counterparts.  A fax transmission of a signature page will be considered an original signature page.  At the request of a party, the other party will confirm a fax-transmitted signature page by delivering an original signature page to the requesting party.
 
The parties have executed this First Amendment as of the date first above written.
 
LANDLORD:	TENANT:	
 	 	
SOUTHCENTER III & IV INVESTORS, LLC,	PIXELWORKS, INC., an Oregon corporation	
a Delaware limited liability corporation	 	
 	 	
By: UBS Realty Investors, LLC, a Massachusetts limited	By:	/s/ Hans Olsen	 	
liability company	 	Hans Olsen, Executive Vice President	
Its Manager	 	

By:	/s/ Timothy J. Cahill	 	 	
 	Timothy J. Cahill, Director	 	
 	Director - Asset Management	 	

2

Exhibit 10.2
 
PIXELWORKS, INC.
 
1997 STOCK INCENTIVE PLAN
As Amended
 
1.                                      Purposes of the Plan.  The purposes of this Stock Incentive Plan are to attract and retain the best available personnel for positions of substantial responsibility, to provide addi-tional incentive to the Employees and Consultants of the Company and to promote the success of the Company’s business.
 
Options granted hereunder may be either “incentive stock options,” as defined in Section 422 of the Internal Revenue Code of 1986, as amended, or “nonqualified stock options,” at the discretion of the Board and as reflected in the terms of the written option agreement.  In addition, shares of the Company’s Common Stock may be Sold hereunder independent of any Option grant.
 
2.                                      Definitions.  As used herein, the following definitions shall apply:
 
(a)                                  “Administrator” shall mean the Board or any of its Committees as shall be administering the Plan, in accordance with Section 4.(a) of the Plan.
 
(b)                                 “Board” shall mean the Board of Directors of the Company.
 
(c)                                  “Code” shall mean the Internal Revenue Code of 1986, as amended.
 
(d)                                 “Committee” shall mean a committee appointed by the Board in accordance with Section 4.(a) of the Plan.
 
(e)                                  “Common Stock” shall mean the Common Stock of the Company.
 
(f)                                    “Company” shall mean Pixelworks, Inc. an Oregon corporation.
 
(g)                                 “Consultant” shall mean any person who is engaged by the Company or any Parent or Subsidiary to render consulting services and is compensated for such consulting services and any Director of the Company whether compensated for such services or not.
 
(h)                                 “Continuous Status as an Employee or Consultant” shall mean the absence of any interruption or termination of service as an Employee or Consultant.  Continuous Status as an Employee or Consultant shall not be considered interrupted in the case of: (i) any sick leave, military leave, or any other leave of absence approved by the Company ; provided, however, that for purposes of Incentive Stock Options, any such leave is for a period of not more than ninety days or reemployment upon the expiration of such leave is guaranteed by contract or statute, provided, further, that on the ninety-first day of such leave (where re-employment is not guaranteed by contract or statute) the Optionee’s Incentive Stock Option shall automatically

 
convert to a Nonqualified Stock Option; or (ii) transfers between locations of the Company or between the Company, its Parent, its Subsidiaries or its successor.
 
(i)                                     “Director” shall mean a member of the Board.
 
(j)                                     “Disability” shall mean total and permanent disability as defined in Section 22(e)(3) of the Code.
 
(k)                                  “Employee” shall mean any person, including Officers and Directors, employed by the Company or any Parent or Subsidiary.  Neither the payment of a director’s fee by the Company nor service as a Director shall be sufficient to constitute “employment” by the Company.
 
(l)                                     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
 
(m)                               “Incentive Stock Option” shall mean an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code.
 
(n)                                 “Nonqualified Stock Option” shall mean an Option not intended to qualify as an incentive stock option within the meaning of Section 422 of the Code.
 
(o)                                 “Notice of Grant” shall mean a written notice evidencing certain terms and conditions of an individual Option grant.  The Notice of Grant is part of the Option Agreement.
 
(p)                                 “Officer” shall mean a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.
 
(q)                                 “Option” shall mean a stock option granted pursuant to the Plan.
 
(r)                                    “Option Agreement” shall mean a written agreement between the Company and an Optionee evidencing the terms and conditions of an individual Option grant.  The Option Agreement is subject to the terms and conditions of the Plan.
 
(s)                                  “Optioned Stock” shall mean the Common Stock subject to an Option.
 
(t)                                    “Optionee” shall mean an Employee or Consultant who receives an Option.
 
(u)                                 “Parent” shall mean a “parent corporation,” whether now or hereafter existing, as defined in Section 424(e) of the Code.
 
(v)                                 “Plan” shall mean this 1997 Stock Incentive Plan.

 
(w)                               “Rule 16b-3”  shall mean Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect when discretion is being exercised with respect to the Plan.
 
(x)                                   “Sale” or “Sold” shall include, with respect to the sale of Shares under the Plan, the sale of Shares for consideration in the form of cash or notes, as well as a grant of Shares for consideration in the form of past or future services.
 
(y)                                 “Share” shall mean a share of the Common Stock, as adjusted in accordance with Section 11 of the Plan.
 
(z)                                   “Subsidiary” shall mean a “subsidiary corporation,” whether now or hereafter existing, as defined in Section 424(f) of the Code.
 
3.                                      Stock Subject to the Plan.  Subject to the provisions of Section 11 of the Plan, the maximum aggregate number of Shares which may be optioned and/or Sold under the Plan is 18,340,116 shares of Common Stock.  The Shares may be authorized, but unissued, or reacquired Common Stock.
 
If an Option should expire or become unexercisable for any reason without having been exercised in full, the unpur-chased Shares which were subject thereto shall, unless the Plan shall have been terminated, become available for future Option grants and/or Sales under the Plan; provided, however, that Shares that have actually been issued under the Plan shall not be returned to the Plan and shall not become available for future distribution under the Plan.
 
4.                                      Administration of the Plan.
 
(a)                                 Procedure.
 
(i)  Multiple Administrative Bodies.  If permitted by Rule 16b-3, the Plan may be administered by different bodies with respect to Directors, Officers who are not Directors, and Employees who are neither Directors nor Officers.
 
(ii)  Administration With Respect to Directors and Officers Subject to Section 16(b).  With respect to Option grants made to Employees who are also Officers or Directors subject to Section 16(b) of the Exchange Act, the Plan shall be administered by (A) the Board, if the Board may administer the Plan in compliance with the rules governing a plan intended to qualify as a discretionary plan under Rule 16b-3, or (B) a Committee designated by the Board to administer the Plan, which Committee shall be constituted to comply with the rules, if any, governing a plan intended to qualify as a discretionary plan under Rule 16b-3.  Once appointed, such Committee shall continue to serve in its designated capacity until otherwise directed by the Board.  From time to time the Board may increase the size of the Committee and appoint additional members, remove members (with or without cause) and substitute new members, fill vacancies (however caused), and remove all members of the Committee and thereafter directly administer the Plan, all to the extent permitted by the rules, if any, governing a plan intended to qualify as a discretionary plan under Rule 16b-3.  With respect to persons subject to Section 16 of the Exchange Act, transactions under the Plan are intended to comply

 
with all applicable conditions of Rule 16b-3.  To the extent any provision of the Plan or action by the Administrator fails to so comply, it shall be deemed null and void, to the extent permitted by law and deemed advisable by the Administrator.
 
(iii)  Administration With Respect to Other Persons.  With respect to Option grants made to Employees or Consultants who are neither Directors nor Officers of the Company, the Plan shall be administered by (A) the Board or (B) a Committee designated by the Board, which Committee shall be constituted to satisfy the legal requirements relating to the administration of stock option plans under applicable corporate and securities laws and the Code.  Once appointed, such Committee shall serve in its designated capacity until otherwise directed by the Board.  The Board may increase the size of the Committee and appoint additional members, remove members (with or without cause) and substitute new members, fill vacancies (however caused), and remove all members of the Committee and thereafter directly administer the Plan, all to the extent permitted by the legal requirements relating to the administration of stock option plans under state corporate and securities laws and the Code.
 
(b)                                Powers of the Administrator.  Subject to the provisions of the Plan, and in the case of a Committee, subject to the specific duties delegated by the Board to such Committee, the Administrator shall have the authority, in its discretion:
 
(i)                                     to grant Incentive Stock Options in accordance with Section 422 of the Code, or Nonqualified Stock Options;
 
(ii)                                  to authorize Sales of Shares of Common Stock hereunder;
 
(iii)                               to determine, upon review of relevant information and in accordance with Sec-tion 8.(b) of the Plan, the fair market value of the Common Stock;
 
(iv)                              to determine the exercise/purchase price per Share of Options to be granted or Shares to be Sold, which exercise/purchase price shall be determined in accordance with Section 8.(a) of the Plan;
 
(v)                                 to determine the Employees or Consul-tants to whom, and the time or times at which, Options shall be granted and the number of Shares to be represented by each Option;
 
(vi)                              to determine the Employees or Consultants to whom, and the time or times at which, Shares shall be Sold and the number of Shares to be Sold;
 
(vii)                           to interpret the Plan;
 
(viii)                        to prescribe, amend and rescind rules and regulations relating to the Plan;

 
(ix)                                to determine the terms and provisions of each Option granted (which need not be identical) and, with the con-sent of the holder thereof, modify or amend each Option;
 
(x)                                   to determine the terms and provisions of each Sale of Shares (which need not be identical) and, with the consent of the purchaser thereof, modify or amend each Sale;
 
(xi)                                to accel-erate or defer (with the consent of the Optionee) the exercise date of any Option;
 
(xii)                             to accelerate or defer (with the consent of the Optionee or purchaser of Shares) the vesting restrictions applicable to Shares Sold under the Plan or pursuant to Options granted under the Plan;
 
(xiii)                          to authorize any person to execute on behalf of the Company any instrument required to effectuate the grant of an Option or Sale of Shares previously granted or authorized by the Board;
 
(xiv)                         to determine the restrictions on transfer, vesting restric-tions, repurchase rights, or other restrictions applicable to Shares issued under the Plan;
 
(xv)                            to effect, at any time and from time to time, with the consent of the affected Optionees, the cancellation of any or all outstanding Options under the Plan and to grant in substitution therefor new Options under the Plan covering the same or different numbers of Shares, but having an Option price per Share con-sistent with the provisions of Section 8 of this Plan as of the date of the new Option grant;
 
(xvi)                         to establish, on a case-by-case basis, different terms and conditions pertaining to exercise or vesting rights upon termination of employment, whether at the time of an Option grant or Sale of Shares, or thereafter;
 
(xvii)                      to approve forms of agreement for use under the Plan;
 
(xviii)      to reduce the exercise price of any Option to the then current fair market value if the fair market value of the Common Stock covered by such Option shall have declined since the date the Option was granted;
 
(xix)                           to determine whether and under what circumstances an Option may be settled in cash under subsection 9(f) instead of Common Stock; and
 
(xx)                              to make all other deter-minations deemed necessary or advisable for the administration of- the Plan.

 
(c)                                 Effect of Administrator’s Decision.  All decisions, determinations and interpretations of the Administrator shall be final and binding on all Optionees and any other holders of any Options granted under the Plan or Shares Sold under the Plan.
 
5.                                      Eligibility.
 
(a)                                 Persons Eligible.  Options may be granted and/or Shares Sold only to Employees and Consultants.  Incentive Stock Options may be granted only to Employees.  An Employee or Consultant who has been granted an Option or Sold Shares may, if he or she is otherwise eligible, be granted an additional Option or Options or Sold additional Shares.
 
(b)                                ISO Limitation.  To the extent that the aggregate fair market value: (i) of Shares subject to an Optionee’s Incentive Stock Options granted by the Company, any Parent or Subsidiary, which (ii) become exercisable for the first time during any calendar year (under all plans of the Company or any Parent or Subsidiary) exceeds $100,000, such excess Options shall be treated as Nonqualified Stock Options.  For purposes of this Section 5(b), Incentive Stock Options shall be taken into account in the order in which they were granted, and the fair market value of the Shares shall be determined as of the time of grant.
 
(c)                                 Section 5.(b) Limitations.  Section 5.(b) of the Plan shall apply only to an Incentive Stock Option evidenced by an Option Agreement which sets forth the intention of the Company and the Optionee that such Option shall qual-ify as an Incentive Stock Option.  Section 5.(b) of the Plan shall not apply to any Option evidenced by a Option Agreement which sets forth the intention of the Company and the Optionee that such Option shall be a Nonqualified Stock Option.
 
(d)                                No Right to Continued Employment.  The Plan shall not confer upon any Optionee any right with respect to continuation of employment or consulting relationship with the Company, nor shall it interfere in any way with his or her right or the Company’s right to terminate his employment or consulting relationship at any time, with or without cause.
 
(e)                                 Other Limitations.  The following limitations shall apply to grants of Options to Employees:
 
(i)                                     No Employee shall be granted, in any fiscal year of the Company, Options to purchase more than 300,000 Shares.
 
(ii)                                  In connection with his or her initial employment, an Employee may be granted Options to purchase up to an additional 300,000 Shares which shall not count against the limit set forth in subsection (i) above.
 
(iii)                               The foregoing limitations shall be adjusted proportionately in connection with any change in the Company’s capitalization as described in Section 11.
 
(iv)                              If an Option is canceled in the same fiscal year of the Company in which it was granted (other than in connection with a transaction described in Section 11), the

 
canceled Option shall be counted against the limits set forth in subsections (i) and (ii) above.  For this purpose, if the exercise price of an Option is reduced, the transaction will be treated as a cancellation of the Option and the grant of a new Option.
 
6.                                      Term of Plan.  The Plan shall become effective upon the earlier to occur of its adoption by the Board or its approval by the shareholders of the Company as described in Section 17 of the Plan.  It shall continue in effect for a term of ten (10) years, unless sooner terminated under Section 13 of the Plan.
 
7.                                      Term of Option.  The term of each Option shall be stated in the Notice of Grant; provided, however, that in the case of an Incentive Stock Option, the term shall be ten (10) years from the date of grant or such shorter term as may be provided in the Notice of Grant.  However, in the case of an Incentive Stock Option granted to an Optionee who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the term of the Incentive Stock Option shall be five (5) years from the date of grant thereof or such shorter term as may be provided in the Notice of Grant.
 
8.                                      Exercise/Purchase Price and Consideration.
 
(a)                                 Exercise/Purchase Price.  The per-Share exercise/purchase price for the Shares to be issued pursuant to exer-cise of an Option or a Sale shall be such price as is determined by the Administrator, but shall be subject to the following:
 
(i)                                     In the case of an Incentive Stock Option
 
(A)                              granted to an Employee who, at the time of the grant of such Incentive Stock Option, owns stock represent-ing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the per Share exercise price shall be no less than one hundred ten percent (110%) of the fair market value per Share on the date of the grant.
 
(B)                                granted to any other Employee, the per Share exercise price shall be no less than one hundred percent (100%) of the fair mar-ket value per Share on the date of grant.
 
(ii)           In the case of a Nonqualified Stock Option or Sale, the per Share exercise/purchase price shall no less than one hundred percent (100%) of the fair market value per Share on the date of grant..
 
(b)                                Fair Market Value .  The fair market value per Share shall be determined by the Administrator in its discretion; provided, however, that where there is a public market for the Common Stock, the fair market value per Share shall be the closing price of the Common Stock (or the closing bid if no sales were reported) for the last market trading day prior to the date of grant of the Option or authorization of Sale or other determination, as reported in  The Wall Street Journal  (or, if not so reported, as otherwise reported by the National Association of

 
Securities Dealers Automated Quotation (NASDAQ) System) or, in the event the Common Stock is listed on a stock exchange, the fair market value per Share shall be the closing price on such exchange for the last market trading day prior to the date of grant of the Option or authorization of Sale or other determination, as reported in  The Wall Street Journal .
 
(c)                                 Consideration.  The consideration to be paid for the Shares to be issued upon exercise of an Option or pursuant to a Sale, including the method of payment, shall be determined by the Administrator.  In the case of an Incentive Stock Option, the Administrator shall determine the acceptable form of consideration at the time of grant.  Such consideration may consist of:
 
(i)                                     cash;
 
(ii)                                  check;
 
(iii)                               promissory note;
 
(iv)                              transfer to the Company of Shares which
 
(A)  in the case of Shares acquired upon exercise of an Option, have been owned by the Optionee for more than six months on the date of surrender, and
 
(B)  have a fair market value on the date of surrender equal to the aggregate exercise price of the Shares to be acquired;
 
(v)                                 delivery of a properly executed exercise notice together with irrevocable instructions to a broker to promptly deliver to the Company the amount of sale or loan proceeds required to pay the exercise price;
 
(vi)                              such other consideration and method of payment for the issuance of Shares to the extent permitted by legal requirements relating to the administration of stock option plans and issuances of capital stock under applicable corporate and securities laws and the Code; or
 
(vii)                           any combination of the foregoing methods of payment.
 
If the fair market value of the number of whole Shares transferred or the number of whole Shares surrendered is less than the total exercise price of the Option, the shortfall must be made up in cash or by check.  Notwithstanding the foregoing provisions of this Section 8.(c), the consideration for Shares to be issued pursuant to a Sale may not include, in whole or in part, the consideration set forth in subsections (iv) and (v) above.
 
9.                                      Exercise of Option.
 
(a)                                 Procedure for Exercise; Rights as a Shareholder.  Any Option granted hereunder shall be exercisable at such times and under such conditions as determined by the

 
Administrator, including performance criteria with respect to the Company and/or the Optionee, and as shall be permissible under the terms of the Plan.
 
An Option may not be exercised for a fraction of a Share.
 
An Option shall be deemed to be exercised when written notice of such exercise has been given to the Company in accordance with the terms of the Option by the person entitled to exercise the Option and full payment for the Shares with respect to which the Option is exercised has been received by the Company.  Full payment may, as authorized by the Administrator, consist of any consideration and method of payment allowable under the Option Agreement and Section 8.(c) of the Plan.  Each Optionee who exercises an Option shall, upon notification of the amount due (if any) and prior to or concurrent with delivery of the certificate representing the Shares, pay to the Company amounts necessary to satisfy applicable federal, state and local tax withholding requirements.  An Optionee must also provide a duly executed copy of any stock transfer agreement then in effect and determined to be applicable by the Administrator.  Until the issuance (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company) of the stock certificate evidenc-ing such Shares, no right to vote or receive divi-dends or any other rights as a shareholder shall exist with respect to the Optioned Stock represented by such stock certificate, notwithstanding the exercise of the Option.  No adjustment will be made for a dividend or other right for which the record date is prior to the date the stock certificate is issued, except as provided in Section 11 of the Plan.
 
Exercise of an Option in any manner shall result in a decrease in the number of Shares which thereafter may be available, both for purposes of the Plan and for sale under the Option, by the number of Shares as to which the Option is exercised.
 
(b)                                Termination of Employment or Consulting Relationship.  In the event that an Optionee’s Continuous Status as an Employee or Consultant terminates (other than upon the Optionee’s death or Disability), the Optionee may exercise his or her Option, but only within such period of time as is determined by the Administrator, and only to the extent that the Optionee was entitled to exercise it at the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Notice of Grant).  In the case of an Incentive Stock Option, the Administrator shall determine such period of time (in no event to exceed three (3) months from the date of termination) when the Option is granted.  If, at the date of termination, the Optionee is not entitled to exercise his or her entire Option, the Shares covered by the unexercisable portion of the Option shall revert to the Plan.  If, after termination, the Optionee does not exercise his or her Option with the time specified by the Administrator, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.
 
(c)                                 Disability of Optionee.  In the event that an Optionee’s Continuous Status as an Employee or Consultant terminates as a result of the Optionee’s Disability, the Optionee may exercise his or her Option at any time within twelve (12) months from the date of such termination, but only to the extent that the Optionee was entitled to exercise it at the date of such termination (but in no event later than the expiration of the term of such Option as set forth in the Notice of Grant).  If, at the date of termination, the Optionee is not entitled to exercise his or her

 
entire Option, the Shares covered by the unexercisable portion of the Option shall revert to the Plan.  If, after termination, the Optionee does not exercise his or her Option within the time specified herein, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.
 
(d)                                Death of Optionee.  In the event of the death of an Optionee, the Option may be exercised at any time within twelve (12) months following the date of death (but in no event later than the expiration of the term of such Option as set forth in the Notice of Grant), by the Optionee’s estate or by a person who acquired the right to exercise the Option by bequest or inheritance, but only to the extent that the Optionee was entitled to exercise the Option at the date of death.  If, at the time of death, the Optionee was not entitled to exercise his or her entire Option, the Shares covered by the unexercisable portion of the Option shall revert to the Plan.  If, after death, the Optionee’s estate or a person who acquired the right to exercise the Option by bequest or inheritance does not exercise the Option within the time specified herein, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.
 
(e)                                 Rule 16b-3.  Options granted to persons subject to Section 16(b) of the Exchange Act must comply with Rule 16b-3 and shall contain such additional conditions or restrictions as may be required thereunder to qualify for the maximum exemption from Section 16 of the Exchange Act with respect to Plan transactions.
 
(f)                                   Buyout Provisions.  The Administrator may at any time offer to buy out for a payment in cash or Shares, an Option previously granted, based on such terms and conditions as the Administrator shall establish and communicate to the Optionee at the time that such offer is made.
 
10.                                Nontransferability of Options.  Except as otherwise specifically provided in the Option Agreement, an Option may not be sold, pledged, assigned, hypothecated, transferred or dis-posed of in any manner other than by will, or by the laws of descent and distribution, and may be exercised during the lifetime of the Optionee only by the Optionee or, if incapacitated, by his or her legal guardian or legal representative.
 
11.                                Adjustments Upon Changes in Capitalization or Merger.
 
(a)  Changes in Capitalization: Subject to any required action by the shareholders of the Company, the number of shares of Common Stock covered by each outstanding Option and the number of shares of Common Stock which have been authorized for issuance under the Plan but as to which no Options have yet been granted or Sales made or which have been returned to the Plan upon cancellation or expiration of an Option, as well as the price per share of Common Stock covered by each such outstanding Option, shall be proportionately adjusted for any increase or decrease in the number of issued shares of Common Stock resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of the Common Stock, or any other increase or decrease in the number of issued shares of Common Stock effected without receipt of con-sideration by the Company; provided, however, that conversion of any convertible securities of the Company shall not be deemed to have been “effected without receipt of consideration.”  Such adjustment shall be made by the Administrator, whose determination in

 
that respect shall be final, binding and conclusive.  Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to an Option.
 
(b)  Dissolution or Liquidation.  In the event of the proposed dissolution or liqui-dation of the Company, each outstanding Option will terminate immediately prior to the consummation of such proposed action, unless other-wise pro-vided by the Administrator.  The Administrator may, in the exercise of its sole discretion in such instances, declare that any Option shall terminate as of a date fixed by the Board and give each Optionee the right to exercise his or her Option as to all or any part of the Optioned Stock, including Shares as to which the Option would not otherwise be exercisable.
 
(c)  Merger or Asset Sale.  In the event of a proposed sale of all or substantially all of the assets of the Company, or the merger of the Company with or into another corporation, each outstanding Option shall be assumed or an equivalent option shall be substi-tuted by such successor corporation or a Parent or Subsidiary of such successor corporation, unless the Administrator determines, in the exercise of its sole discretion and in lieu of such assumption or substitution, that the Optionee shall have the right to exercise the Option as to all of the Optioned Stock, including Shares as to which the Option would not otherwise be exercisable.  If the Administrator makes an Option fully exercisable in lieu of assumption or substitution in the event of a merger or sale of assets, the Administrator shall notify the Optionee that the Option shall be fully exercisable for a period of thirty (30) days from the date of such notice or such shorter period as the Administrator may specify in the notice, and the Option will terminate upon the expiration of such period.  For the purposes of this paragraph, the Option shall be considered assumed if, following the merger or sale of assets, the Option confers the right to purchase, for each Share of Optioned Stock subject to the Option immediately prior to the merger or sale of assets, the consideration (whether stock, cash, or other securities or property) received in the merger or sale of assets by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the merger or sale of assets was not solely common stock of the successor corporation or its Parent, the Administrator may, with the consent of the successor corporation and the Optionee, provide for the consideration to be received upon the exercise of the Option, for each Share of Optioned Stock subject to the Option, to be solely common stock of the successor corporation or its Parent equal in fair market value to the per share consideration received by holders of Common Stock in the merger or sale of assets.
 
12.                                Time of Granting Options.  The date of grant of an Option shall, for all purposes, be the date on which the Administrator makes the determination granting such Option.  Notice of the determination shall be given to each Optionee within a reasonable time after the date of such grant.

 
13.                                Amendment and Termination of the Plan.
 
(a)  Amendment and Termination.  The Board may amend or terminate the Plan from time to time in such respects as the Board may deem advisable.
 
(b)  Shareholder Approval.  The Company shall obtain shareholder approval of any Plan amendment to the extent necessary and desirable to comply with Rule 16b-3 or with Section 422 of the Code (or any successor rule or statute or other applicable law, rule or regulation, including the requirements of any exchange or quotation system on which the Common Stock is listed or quoted).  Such shareholder approval, if required, shall be obtained in such a manner and to such a degree as is required by the applicable law, rule or regulation.
 
(c)  Effect of Amendment or Termination.  Any such amendment or termination of the Plan shall not affect Options already granted, and such Options shall remain in full force and effect as if this Plan had not been amended or terminated, unless mutually agreed otherwise between the Optionee and the Administrator, which agreement must be in writing and signed by the Optionee and the Company.
 
14.                                Conditions Upon Issuance of Shares.  Shares shall not be issued pursuant to the exercise of an Option or a Sale unless the exercise of such Option or consummation of the Sale and the issuance and delivery of such Shares pursuant thereto shall comply with all relevant provisions of law, including, without limitation, the Securities Act of 1933, as amended, applicable state securities laws, the Exchange Act, the rules and regulations promulgated thereunder, and the requirements of any stock exchange (including NASDAQ) upon which the Shares may then be listed, and shall be further subject to the approval of counsel for the Company with respect to such compliance.
 
15.                                Reservation of Shares.  The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements of the Plan.
 
16.                                Liability of Company.
 
(a)  Inability to Obtain Authority.  Inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority shall not have been obtained.
 
As a condition to the exercise of an Option or a Sale, the Company may require the person exercising such Option or to whom Shares are being Sold to repre-sent and warrant at the time of any such exercise or Sale that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required by any of the aforementioned relevant provisions of law.
 
(b)  Grants Exceeding Allotted Shares.  If the Optioned Stock covered by an Option exceeds, as of the date of grant, the number of Shares which may be issued under the

 
Plan without additional shareholder approval, such Option shall be void with respect to such excess Optioned Stock, unless shareholder approval of an amendment sufficiently increasing the number of Shares subject to the Plan is timely obtained in accordance with Section 13 of the Plan.
 
17.                                Shareholder Approval.  Continuance of the Plan shall be subject to approval by the shareholders of the Company within twelve (12) months before or after the date the Plan is adopted.  Such shareholder approval shall be obtained in the manner and to the degree required under applicable federal and state law.

Exhibit 10.3
 
PIXELWORKS, INC.
 
2000 EMPLOYEE STOCK PURCHASE PLAN
 
As Amended
 
The following constitute the provisions of the 2000 Employee Stock Purchase Plan of Pixelworks, Inc., as amended
 
1.                                      Purpose.  The purpose of the Plan is to provide employees of the Company and its Designated Subsidiaries with an opportunity to purchase Common Stock of the Company through accumulated payroll deductions. It is the intention of the Company to have the Plan qualify as an “Employee Stock Purchase Plan” under Section 423 of the Internal Revenue Code of 1986, as amended. The provisions of the Plan, accordingly, shall be construed so as to extend and limit participation in a manner consistent with the requirements of that section of the Code.
 
2.                                      Definitions.
 
a.                                       “Board” shall mean the Board of Directors of the Company.
 
b.                                      “Code” shall mean the Internal Revenue Code of 1986, as amended.
 
c.                                       “Common Stock” shall mean the common stock of the Company.
 
d.                                      “Company” shall mean Pixelworks, Inc., an Oregon corporation, and any Designated Subsidiary of the Company.
 
e.                                       “Compensation” shall mean all base straight time gross earnings and commissions, but exclusive of payments for overtime, shift premium, incentive compensation, incentive payments, bonuses and other compensation.
 
f.                                         “Designated Subsidiary” shall mean any Subsidiary which has been designated by the Board from time to time in its sole discretion as eligible to participate in the Plan.
 
g.                                      “Employee” shall mean any individual who is an Employee of the Company for tax purposes whose customary employment with the Company is at least twenty (20) hours per week and more than five (5) months in any calendar year. For purposes of the Plan, the employment relationship shall be treated as continuing intact while the individual is on sick leave or other leave of absence approved by the Company. Where the period of leave exceeds 90 days and the individual’s right to re-employment is not guaranteed either by statute or by contract, the employment relationship shall be deemed to have terminated on the 91 st  day of such leave.
 
h.                                      “Enrollment Date” shall mean the first Trading Day of each Offering Period.
 
i.                                          “Exercise Date” shall mean the last Trading Day of each Purchase Period.
 
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j.                                          “Fair Market Value” shall mean, as of any date, the value of Common Stock determined as follows:
 
(1)                                  If the Common Stock is listed on any established stock exchange or a national market system, including without limitation the Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system for the last market trading day on or before the date of such determination, as reported in The Wall Street Journal or such other source as the Board deems reliable;
 
(2)                                  If the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, its Fair Market Value shall be the mean of the closing bid and asked prices for the Common Stock for the last quotation day on or before the date of such determination, as reported in The Wall Street Journal or such other source as the Board deems reliable;
 
(3)                                  In the absence of an established market for the Common Stock, the Fair Market Value thereof shall be determined in good faith by the Board; or
 
(4)                                  For purposes of the Enrollment Date of the first Offering Period under the Plan, the Fair Market Value shall be the initial price to the public as set forth in the final prospectus included within the registration statement in Form S-1 filed with the Securities and Exchange Commission for the initial public offering of the Company’s Common Stock (the “Registration Statement”).
 
k.                                       “Offering Periods” shall mean the periods of approximately six (6) months during which an option granted pursuant to the Plan may be exercised, commencing on the first Trading Day on or after February 1 and August 1 of each year and terminating on the last Trading Day in the periods ending six months later, provided, however, that (i) the first Offering Period under the Plan shall commence with the first Trading Day on or after the date on which the Securities and Exchange Commission declares the Company’s Registration Statement effective and ending on the last Trading Day on or before January 31, 2002; and (ii) that with respect to any option granted pursuant to the Plan on or before March 9, 2004, “Offering Periods” shall mean the periods of approximately twenty-four (24) months during which such option may be exercised, commencing on the first Trading Day on or after February 1 and August 1 of each year and terminating on the last Trading Day in the periods ending twenty-four months later. The duration and timing of Offering Periods may be changed pursuant to Section 4 of this Plan.
 
l.                                          “Plan” shall mean this 2000 Employee Stock Purchase Plan.
 
m.                                    “Purchase Period” shall mean the approximately six month period commencing after one Exercise Date and ending with the next Exercise Date, except that the first Purchase Period of any Offering Period shall commence on the Enrollment Date and end with the next Exercise Date.
 
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n.                                      “Purchase Price” shall mean 85% of the Fair Market Value of a share of Common Stock on the Enrollment Date or on the Exercise Date, whichever is lower; provided however, that the Purchase Price may be adjusted by the Board pursuant to Section 20.
 
o.                                      “Reserves” shall mean the number of shares of Common Stock covered by each option under the Plan which have not yet been exercised and the number of shares of Common Stock which have been authorized for issuance under the Plan but not yet placed under option.
 
p.                                      “Subsidiary” shall mean a corporation, domestic or foreign, of which not less than 50% of the voting shares are held by the Company or a Subsidiary, whether or not such corporation now exists or is hereafter organized or acquired by the Company or a Subsidiary.
 
q.                                      “Trading Day” shall mean a day on which national stock exchanges and the Nasdaq System are open for trading.
 
3.                                      Eligibility.
 
a.                                       Any Employee who shall be employed by the Company on a given Enrollment Date shall be eligible to participate in the Plan.
 
b.                                      Any provisions of the Plan to the contrary notwithstanding, no Employee shall be granted an option under the Plan (i) to the extent that, immediately after the grant, such Employee (or any other person whose stock would be attributed to such Employee pursuant to Section 424(d) of the Code) would own capital stock of the Company and/or hold outstanding options to purchase such stock possessing five percent (5%) or more of the total combined voting power or value of all classes of the capital stock of the Company or of any Subsidiary, or (ii) to the extent that his or her rights to purchase stock under all employee stock purchase plans of the Company and its subsidiaries accrues at a rate which exceeds Twenty-Five Thousand Dollars ($25,000) worth of stock (determined at the fair market value of the shares at the time such option is granted) for each calendar year in which such option is outstanding at any time.
 
4.                                      Offering Periods. The Plan shall be implemented by consecutive, overlapping Offering Periods with a new Offering Period commencing on the first Trading Day on or after February 1 and August 1 each year, or on such other date as the Board shall determine, and continuing thereafter until terminated in accordance with Section 20 hereof, provided, however, that the first Offering Period under the Plan shall commence with the first Trading Day on or after the date on which the Securities and Exchange Commission declares the Company’s Registration Statement effective and ending on the last Trading Day on or before January 31, 2002. The Board shall have the power to change the duration of Offering Periods (including the commencement dates thereof) with respect to future offerings without shareholder approval if such change is announced at least five (5) days prior to the scheduled beginning of the first Offering Period to be affected thereafter.
 
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5.                                      Participation.
 
a.                                       An eligible Employee may become a participant in the Plan by completing a subscription agreement authorizing payroll deductions in the form of Exhibit A to this Plan and filing it with the Company’s payroll office prior to the applicable Enrollment Date.
 
b.                                      Payroll deductions for a participant shall commence on the first payroll following the Enrollment Date and shall end on the last payroll in the Offering Period to which such authorization is applicable, unless sooner terminated by the participant as provided in Section 10 hereof.
 
6.                                      Payroll Deductions.
 
a.                                       At the time a participant files his or her subscription agreement, he or she shall elect to have payroll deductions made on each pay day during the Offering Period in one percent (1%) increments of not less than two percent (2%) or greater than ten percent (10%) of the Compensation which he or she receives on each pay day during the Offering Period.
 
b.                                      All payroll deductions made for a participant shall be credited to his or her account under the Plan and shall be withheld in whole percentages only. A participant may not make any additional payments into such account.
 
c.                                       A participant may discontinue his or her participation in the Plan as provided in Section 10 hereof, or may increase or decrease the rate of his or her payroll deductions during the Offering Period by completing or filing with the Company a new subscription agreement authorizing a change in payroll deduction rate. The Board may, in its discretion, limit the number of participation rate changes during any Offering Period. The change in rate shall be effective with the first full payroll period following five (5) business days after the Company’s receipt of the new subscription agreement unless the Company elects to process a given change in participation more quickly. A participant’s subscription agreement shall remain in effect for successive Offering Periods unless terminated as provided in Section 10 hereof.
 
d.                                      Notwithstanding the foregoing, to the extent necessary to comply with Section 423(b) (8) of the Code and Section 3(b) hereof, a participant’s payroll deductions may be decreased to zero percent (0%) at any time during a Purchase Period. Payroll deductions shall recommence at the rate provided in such participant’s subscription agreement at the beginning of the first Purchase Period which is scheduled to end in the following calendar year, unless terminated by the participant as provided in Section 10 hereof.
 
e.                                       At the time the option is exercised, in whole or in part, or at the time some or all of the Company’s Common Stock issued under the Plan is disposed of, the participant must make adequate provision for the Company’s federal, state, or other tax withholding obligations, if any, which arise upon the exercise of the option or the disposition of the Common Stock. At any time, the Company may, but shall not be obligated to, withhold from the participant’s compensation the amount necessary for the Company to meet applicable withholding obligations, including any withholding required to make available to the Company any tax deductions or benefits attributable to sale or early disposition of Common Stock by the Employee.
 
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7.                                      Grant of Option.  On the Enrollment Date of each Offering Period, each eligible Employee participating in such Offering Period shall be granted an option to purchase on each Exercise Date during such Offering Period (at the applicable Purchase Price) up to a number of shares of the Company’s Common Stock determined by dividing such Employees payroll deductions accumulated prior to such Exercise Date and retained in the Participant’s account as of the Exercise Date by the applicable Purchase Price; provided that in no event shall an Employee be permitted to purchase during each Purchase Period more than two thousand five hundred (2,500) shares of the Company’s Common Stock (subject to any adjustment pursuant to Section 19), and provided further that such purchase shall be subject to the limitations set forth in Sections 3(b), 8(b) and 12 hereof. The Board may, for future Offering Periods, increase or decrease, in its absolute discretion, the maximum number of shares of the Company’s Common Stock an Employee may purchase during each Purchase Period of such Offering Period. Exercise of the option shall occur as provided in Section 8 hereof, unless the participant has withdrawn pursuant to Section 10 hereof. The option shall expire on the last day of the Offering Period.
 
8.                                      Exercise of Option.
 
a.                                       Unless a participant withdraws from the Plan as provided in Section 10 hereof, his or her option for the purchase of shares shall be exercised automatically on the Exercise Date, and the maximum number of full shares subject to option shall be purchased for such participant at the applicable Purchase Price with the accumulated payroll deductions in his or her account; provided that in no event shall an Employee be permitted to purchase during each Purchase Period more than two hundred percent (200%) of the number of shares that the Employee could purchase if the Purchase Price was limited to eight-five percent (85%) of the Fair Market Value of a share of Common Stock on the Enrollment Date. No fractional shares shall be purchased; any payroll deductions accumulated in a participant’s account which are not sufficient to purchase a full share shall be retained in the participant’s account for the subsequent Purchase Period or Offering Period, subject to earlier withdrawal by the participant as provided in Section l0 hereof. Any other monies leftover in a participant’s account after the Exercise Date shall be returned to the participant. During a participant’s lifetime, a participant’s option to purchase shares hereunder is exercisable only by him or her.
 
b.                                      If the Board determines that, on a given Exercise Date, the number of shares with respect to which options are to be exercised may exceed (i) the number of shares of Common Stock that were available for sale under the Plan on the Enrollment Date of the applicable Offering Period, or (ii) the number of shares available for sale under the Plan on such Exercise Date, the Board may in its sole discretion (x) provide that the Company shall make a pro rata allocation of the shares of Common Stock available for purchase on such Enrollment Date or Exercise Date, as applicable, in as uniform a manner as shall be practicable and as it shall determine in its sole discretion to be equitable among all participants exercising options to purchase Common Stock on such Exercise Date, and continue all Offering Periods then in effect, or (y) provide that the Company shall make a pro rata allocation of the shares available for purchase on such Enrollment Date or Exercise Date, as applicable, in as uniform a manner as shall be practicable and as it shall determine in its sole discretion to be equitable among all participants exercising options to purchase Common Stock on such Exercise Date, and terminate any or all Offering Periods then in effect pursuant to Section 20 hereof. The Company may make pro rata allocation of the shares available on the Enrollment Date of any applicable Offering
 
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Period pursuant to the preceding sentence, notwithstanding any authorization of additional shares for issuance under the Plan by the Company’s shareholders subsequent to such Enrollment Date.
 
9.                                      Delivery.  As promptly as practicable after each Exercise Date on which a purchase of shares occurs, the Company shall arrange the delivery to each participant, as appropriate, of a certificate representing the shares purchased upon exercise of his or her option.
 
10.                                Withdrawal.
 
a.                                       A participant may withdraw all but not less than all the payroll deductions credited to his or her account and not yet used to exercise his or her option under the Plan at any time by giving written notice to the Company in the form of Exhibit B to this Plan. All of the participant’s payroll deductions credited to his or her account shall be paid to such participant promptly after receipt of notice of withdrawal and such participant’s option for the Offering Period shall be automatically terminated, and no further payroll deductions for the purchase of shares shall be made for such Offering Period. If a participant withdraws from an Offering Period, payroll deductions shall not resume at the beginning of the succeeding Offering Period unless the participant delivers to the Company a new subscription agreement.
 
b.                                      A participant’s withdrawal from an Offering Period shall not have any effect upon his or her eligibility to participate in any similar plan which may hereafter be adopted by the Company or in succeeding Offering Periods which commence after the termination of the Offering Period from which the participant withdraws.
 
11.                                Termination of Employment.
 
Upon a participant’s ceasing to be an Employee, for any reason, he or she shall be deemed to have elected to withdraw from the Plan and the payroll deductions credited to such participant’s account during the Offering Period but not yet used to exercise the option shall be returned to such participant or, in the case of his or her death, to the person or persons entitled thereto under Section 15 hereof, and such participant’s option shall be automatically terminated. The preceding sentence notwithstanding, a participant who receives payment in lieu of notice of termination of employment shall be treated as continuing to be an Employee for the participant’s customary number of hours per week of employment during the period in which the participant is subject to such payment in lieu of notice.
 
12.                                Interest.  No interest shall accrue on the payroll deductions of a participant in the Plan.
 
13.                                Stock.
 
a.                                       Subject to adjustment upon changes in capitalization of the Company as provided in Section 19 hereof, the maximum number of shares of the Company’s Common Stock which shall be made available for sale under the Plan shall be one million (1,000,000) shares, plus an annual increase to be added on the first day of the Company’s fiscal year beginning in 2005 equal to the lesser of (i) 900,000 shares of Common Stock; (ii) the number of shares of Common Stock issued pursuant to the Plan during the immediately preceding fiscal year of the Company, (iii) two percent (2%) of the outstanding shares of Common Stock on the first day of
 
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the Company’s fiscal year for which the increase is being made or (iv) a lesser amount determined by the Board.
 
b.                                      The participant shall have no interest or voting right in shares covered by his option until such option has been exercised.
 
c.                                       Shares to be delivered to a participant under the Plan shall be registered in the name of the participant or in the name of the participant and his or her spouse.
 
14.                                Administration.  The Plan shall be administered by the Board or a committee of members of the Board appointed by the Board. The Board or its committee shall have full and exclusive discretionary authority to construe, interpret and apply the terms of the Plan, to determine eligibility and to adjudicate all disputed claim filed under the Plan. Every finding, decision and determination made by the Board or its committee shall to the full extent permitted by law, be final and binding upon all parties.
 
15.                                Designation of Beneficiary.
 
a.                                       A participant may file a written designation of a beneficiary who is to receive any shares and cash, if any, from the participant’ s account under the Plan in the event of such participant’s death subsequent to an Exercise Date on which the option is exercised but prior to delivery to such participant of such shares and cash. In addition, a participant may file a written designation of a beneficiary who is to receive any cash from the participant’s account under the Plan in the event of such participant’s death prior to exercise of the option. If a participant is married and the designated beneficiary is not the spouse, spousal consent shall be required for such designation to be effective.
 
b.                                      Such designation of beneficiary may be changed by the participant at any time by written notice. In the event of the death of a participant and in the absence of a beneficiary validly designated under the Plan who is living at the time of such participant’s death, the Company shall deliver such shares and/or cash to the executor or administrator of the estate of the participant, or if no such executor or administrator has been appointed (to the knowledge of the Company), the Company, in its discretion, may deliver such shares and/or cash to the spouse or to any one or more dependents or relatives of the participant or if no spouse, dependent or relative is known to the Company, then to such other person as the Company may designate.
 
16.                                Transferability.  Neither payroll deductions credited to a participant’s account nor any rights with regard to the exercise of an option or to receive shares under the Plan may be assigned, transferred, pledged or otherwise disposed of in any way (other than by will, the laws of descent and distribution or as provided in Section 15 hereof) by the participant. Any such attempt at assignment, transfer, pledge or other disposition shall be without effect except that the Company may treat such act as an election to withdraw funds from an Offering Period in accordance with Section 10 hereof.
 
17.                                Use of Funds.  All payroll deductions received or held by the Company under the Plan may be used by the Company for any corporate purpose, and the Company shall not be obligated to segregate such payroll deductions.
 
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18.                                Reports.  Individual accounts shall be maintained for each participant in the Plan. Statements of account shall be given to participating Employees at least annually, which statements shall set forth the amounts of payroll deductions, the Purchase Price, the number of shares purchased and the remaining cash balance, if any.
 
19.                                Adjustments Upon Changes in Capitalization, Dissolution, Liquidation, Merger of Asset Sale.
 
a.                                       Changes in Capitalization.  Subject to any required action by the shareholders of the Company, the Reserves, the maximum number of shares each participant may purchase each Purchase Period (pursuant to Section 7), as well as the price per share and the number of shares of Common Stock covered by each option under the Plan which has not yet been exercised shall be proportionately adjusted for any increase or decrease in the number of issued shares of Common Stock resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of the Common Stock, or any other increase or decrease in the number of shares of Common Stock effected without receipt of consideration by the Company, provided, however, that conversion of any convertible securities of the Company shall not be deemed to have been “effected without receipt of consideration.”  Such adjustment shall be made by the Board, whose determination in that respect shall be final, binding and conclusive. Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to an option.
 
b.                                      Dissolution or Liquidation.   In the event of the proposed dissolution or liquidation of the Company, the Offering Period then in progress shall be shortened by setting a new Exercise Date (the “New Exercise Date”), and shall terminate immediately prior to the consummation of such proposed dissolution or liquidation, unless provided otherwise by the Board. The New Exercise Date shall be before the date of the Company’s proposed dissolution or liquidation. The Board shall notify each participant in writing, at least ten (10) business days prior to the New Exercise Date, that the Exercise Date for the participant’s option has been changed to the New Exercise Date and that the participant’s option shall be exercised automatically on the New Exercise Date, unless prior to such date the participant has withdrawn from the Offering Period as provided in Section 10 hereof.
 
c.                                       Merger or Asset Sale.  In the event of a proposed sale of all or substantially all of the assets of the Company, or the merger of the Company with or into another corporation, each outstanding option shall be assumed or an equivalent option substituted by the successor corporation or a Parent or Subsidiary of the successor corporation. In the event that the successor corporation refuses to assume or substitute for the option, any Purchase Periods then in progress shall be shortened by setting a new Exercise Date (the “New Exercise Date”) and any Offering Periods then in progress shall end on the New Exercise Date. The New Exercise Date shall be before the date of the Company’s proposed sale or merger. The Board shall notify each participant in writing, at least ten (10) business days prior to the New Exercise Date, that the Exercise Date for the participant’s option has been changed to the New Exercise Date and that the participant’s option shall be exercised automatically on the New Exercise Date, unless prior
 
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to such date the participant has withdrawn from the Offering Period as provided in Section 10 hereof.
 
20.                                Amendment or Termination.
 
a.                                       The Board of Directors of the Company may at any time and for any reason terminate or amend the Plan. Except as provided in Section 19 hereof, no such termination can affect options previously granted, provided that an Offering Period may be terminated by the Board of Directors on any Exercise Date if the Board determines that the termination of the Offering Period or the Plan is in the best interests of the Company and its shareholders. Except as provided in Section 19 and this Section 20 hereof, no amendment may make any change in any option theretofore granted which adversely affects the rights of any participant. To the extent necessary to comply with Section 423 of the Code (or any successor rule or provision or any other applicable law, regulation or stock exchange rule), the Company shall obtain shareholder approval in such a manner and to such a degree as required.
 
b.                                      Without shareholder consent and without regard to whether any participant rights may be considered to have been “adversely affected,” the Board (or its committee) shall be entitled to change the Offering Periods, limit the frequency and/or number of changes in the amount withheld during an Offering Period, establish the exchange ratio applicable to amounts withheld in a currency other than U.S. dollars, permit payroll withholding in excess of the amount designated by a participant in order to adjust for delays or mistakes in the Company’s processing of properly completed withholding elections, establish reasonable waiting and adjustment periods and/or accounting and crediting procedures to ensure that amounts applied toward the purchase of Common Stock for each participant properly correspond with amounts withheld from the participant’s Compensation, and establish such other limitations or procedures as the Board (or its committee) determines in its sole discretion advisable which are consistent with the Plan.
 
c.                                       In the event the Board determines that the ongoing operation of the Plan may result in unfavorable financial accounting consequences, the Board may, in its discretion and, to the extent necessary or desirable, modify or amend the Plan to reduce or eliminate such accounting consequence including, but not limited to:
 
(1)                                  altering the Purchase Price for any Offering Period including an Offering Period underway at the time of the change in Purchase Price;
 
(2)                                  shortening any Offering Period so that Offering Period ends on a new Exercise Date, including an Offering Period underway at the time of the Board action; and
 
(3)                                  allocating shares.
 
Such modifications or amendments shall not require stockholder approval or the consent of any Plan participants.
 
21.                                Notices.  All notices or other communications by a participant to the Company under or in connection with the Plan shall be deemed to have been duly given when received in
 
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the form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof.
 
22.                                Conditions Upon Issuance of Shares.  Shares shall not be issued with respect to an option unless the exercise of such option and the issuance and delivery of such shares pursuant thereto shall comply with all applicable provisions of law, domestic or foreign, including, without limitation, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, the rules and regulations promulgated thereunder, and the requirements of any stock exchange upon which the shares may then be listed, and shall be further subject to the approval of counsel for the Company with respect to such compliance.
 
As a condition to the exercise of an option, the Company may require the person exercising such option to represent and warrant at the time of any such exercise that the shares are being purchased only for investment and without any present intention to sell or distribute such shares if, in the opinion of counsel for the Company, such a representation is required by any of the aforementioned applicable provisions of law.
 
23.                                Term of Plan.  The Plan shall become effective upon the earlier to occur of its adoption by the Board of Directors or its approval by the shareholders of the Company. It shall continue in effect for a term of ten (10) years unless sooner terminated under Section 20 hereof
 
24.                                Automatic Transfer to Low Price Offering Period.  To the extent permitted by any applicable laws, regulations, or stock exchange rules if the Fair Market Value of the Common Stock on any Exercise Date in an Offering Period is lower than the Fair Market Value of the Common Stock on the Enrollment Date of such Offering Period, then all participants in such Offering Period shall be automatically withdrawn from such Offering Period immediately after the exercise of their option on such Exercise Date and automatically re-enrolled in the immediately following Offering Period as of the first day thereof.
 
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EXHIBIT A
 
PIXELWORKS, INC.
 
2000 EMPLOYEE STOCK PURCHASE PLAN
 
SUBSCRIPTION AGREEMENT
 
 	Original Application	Enrollment Date:	
 	Change in Payroll Deduction Rate	 	
 	Change of Beneficiary(ies)	 	
 
1.                                                                                hereby elects to participate in the Pixelworks, Inc. 2000 Employee Stock Purchase Plan (the “Employee Stock Purchase Plan”) and subscribes to purchase shares of the Company’s Common Stock in accordance with this Subscription Agreement and the Employee Stock Purchase Plan.
 
2.                                       I hereby authorize payroll deductions from each paycheck in the amount of              % of my Compensation on each payday (from 2% to 10%) during the Offering Period in accordance with the Employee Stock Purchase Plan. (Please note that no fractional percentages are permitted.)
 
3.                                       I understand that said payroll deductions shall be accumulated for the purchase of shares of Common Stock at the applicable Purchase Price determined in accordance with the Employee Stock Purchase Plan. I understand that if I do not withdraw from an Offering Period, any accumulated payroll deductions will be used to automatically exercise my option.
 
4.                                       I have received a copy of the complete Employee Stock Purchase Plan. I understand that my participation in the Employee Stock Purchase Plan is in all respects subject to the terms of the Plan. I understand that my ability to exercise the option under this Subscription Agreement is subject to shareholder approval of the Employee Stock Purchase Plan.
 
5.                                       Shares purchased for me under the Employee Stock Purchase Plan should be issued in the name(s) of (Employee or Employee and Spouse only):

6.                                       I understand that if I dispose of any shares received by me pursuant to the Plan within 2 years after the Enrollment Date (the first day of the Offering Period during which I purchased such shares) or one year after the Exercise Date, I will be treated for federal income tax purposes as having received ordinary income at the time of such disposition in an amount equal to the excess of the fair market value of the shares at the time such shares were purchased by me over the price which I paid for the shares.   I agree to notify the Company in writing within 30 days after the date of any disposition of my shares (except when disposed of through ETrade) and I will make adequate provision for Federal, state or other tax withholding obligations, if any, which arise upon the

 
disposition of the Common Stock.  The Company may, but will not be obligated to, withhold from my compensation the amount necessary to meet any applicable withholding obligation including any withholding necessary to make available to the Company any tax deductions or benefits attributable to sale or early disposition of Common Stock by me. If I dispose of such shares at any time after the expiration of the 2-year and 1-year holding periods, I understand that I will be treated for federal income tax purposes as having received income only at the time of such disposition, and that such income will be taxed as ordinary income only to the extent of an amount equal to the lesser of (1) the excess of the fair market value of the shares at the time of such disposition over the purchase price which I paid for the shares, or (2) 15% of the fair market value of the shares on the first day of the Offering Period. The remainder of the gain, if any, recognized on such disposition will be taxed as capital gain.
 
7.                                       I hereby agree to be bound by the terms of the Employee Stock Purchase Plan. The effectiveness of this Subscription Agreement is dependent upon my eligibility to participate in the Employee Stock Purchase Plan.
 
8.                                       In the event of my death, I hereby designate the following as my beneficiary(ies) to receive all payments and shares due me under the Employee Stock Purchase Plan:
 
NAME: (Please print)	 	
 	(First)	(Middle)	(Last)	

Relationship	

 	(Address)	
 	 	
Employee’s Social Security Number:	 	
 	
Employee’s Address:	 	

 	 	

 	
Dated:	 	 	 	
 	Signature of Employee	

 	Spouse’s Signature (If beneficiary other than spouse)	

 
EXHIBIT B
 
PIXELWORKS, INC.
 
2000 EMPLOYEE STOCK PURCHASE PLAN
 
NOTICE OF WITHDRAWAL
 
The undersigned participant in the Offering Period of the Pixelworks, Inc. 2000 Employee Stock Purchase Plan which began on                                                      , 20      (the “Enrollment Date”) hereby notifies the Company that he or she hereby withdraws from the Offering Period. He or she hereby directs the Company to pay to the undersigned as promptly as practicable all the payroll deductions credited to his or her account with respect to such Offering Period. The undersigned understands and agrees that his or her option for such Offering Period will be automatically terminated. The undersigned understands further that no further payroll deductions will be made for the purchase of shares in the current Offering Period and the undersigned shall be eligible to participate in succeeding Offering Periods only by delivering to the Company a new Subscription Agreement.
 
 	Name and Address of Participant:	

 	 	

 	 	
 	Signature:	

 	 	
 	Date:	 	

Exhibit 31.1
 
CERTIFICATION
 
I, Allen H. Alley, certify that:
 
1.               I have reviewed this quarterly report on Form 10-Q of Pixelworks, Inc.;
 
2.               Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
 
3.               Based on my knowledge, the financial statements and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
 
4.               The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
 
a.               Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
 
b.              Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
 
c.               Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
 
5.               The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
 
a.               All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
 
b.              Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date:    August 9, 2004	/s/ Allen H. Alley	
 	Allen H. Alley	
 	Chairman of the Board,	
 	President and	
 	Chief Executive Officer	
 
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Exhibit 31.2
 
CERTIFICATION
 
I, Jeffrey B. Bouchard, certify that:
 
1.              I have reviewed this quarterly report on Form 10-Q of Pixelworks, Inc.;
 
2.              Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
 
3.              Based on my knowledge, the financial statements and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
 
4.              The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
 
a.              Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
 
b.             Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
 
c.              Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
 
5.              The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
 
a.              All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
 
b.             Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date:    August 9, 2004	 	/s/ Jeffrey B. Bouchard	
 	 	Jeffrey B. Bouchard	
 	 	Vice President, Finance and	
 	 	Chief Financial Officer	
 
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Exhibit 32.1
 
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
 
In connection with the Quarterly Report of Pixelworks, Inc. (the “Company”) on Form 10-Q for the three and six months ended June 30, 2004 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Allen H. Alley, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that:
 
1.              The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
 
2.              The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 	By:	/s/ Allen H. Alley	 	
 	 	Allen H. Alley	
 	 	Chairman of the Board,	
 	 	President and	
 	 	Chief Executive Officer	

 	Date:	August 9, 2004	
 
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Exhibit 32.2
 
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
 
In connection with the Quarterly Report of Pixelworks, Inc. (the “Company”) on Form 10-Q for the three and six months ended June 30, 2004 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Jeffrey B. Bouchard, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that:
 
1.              The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
 
2.              The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 	By:	/s/ Jeffrey B. Bouchard	 	
 	 	Jeffrey B. Bouchard	
 	 	Vice President, Finance and	
 	 	Chief Financial Officer	
 	 	 	
 	Date:	August 9, 2004	
 
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