exv4w12



 



EXHIBIT 4.12


ONI SYSTEMS, CORP.

5% Convertible Subordinated Notes Due October 15, 2005

FIRST SUPPLEMENTAL INDENTURE

Dated as of June 21, 2002

to

INDENTURE

Dated as of October 27, 2000

STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A.


FIRST SUPPLEMENTAL INDENTURE (the ''First Supplemental Indenture”) dated as of
June 21, 2002 between CIENA Corporation, a Delaware corporation (“CIENA”), and
State Street Bank and Trust Company of California, N.A., a national banking
association organized and existing under the laws of the United States (the
“Trustee”).


W I T N E S S E T H:



WHEREAS, there has previously been executed and delivered to the Trustee an
Indenture dated as of October 27, 2000 (the “Indenture”), providing for the
issuance of $300,000,000 in aggregate principal amount of 5% Convertible
Subordinated Notes due October 15, 2005 (the “Notes”) of ONI Systems Corp., a
Delaware corporation (“ONI Systems”);


WHEREAS, ONI Systems has merged (or will merge substantially concurrently with
the execution and delivery of this First Supplemental Indenture) with and into
CIENA (the “Merger”), with CIENA as the surviving corporation in the Merger
pursuant to an Agreement and Plan of Merger, dated as of February 17, 2002,
among ONI Systems and CIENA;


WHEREAS, pursuant to the Merger each outstanding share of common stock of ONI
Systems is converted into 0.7104 of an outstanding share of common stock of
CIENA;


WHEREAS, in the case of a merger of ONI Systems with and into any other
corporation, Article VII and Section 12.11 of the Indenture require that the
surviving corporation execute and deliver to the Trustee a supplemental
indenture providing for certain conversion rights to Holders of the Notes and
the assumption by the surviving corporation of the covenants, agreements and
obligations of the Company under the Indenture;


WHEREAS, Section 8.1 of the Indenture provides that the Company (as defined in
the Indenture) and the Trustee may, without the consent of any Holders, enter
into a supplemental indenture to comply with the terms of Article VII and
Section 12.11 of the Indenture;


WHEREAS, in accordance with Sections 7.1 and 8.3 of the Indenture, the Company
(as defined in the Indenture) has delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel; and


WHEREAS, all acts and proceedings required by law, under the Indenture and by
the Certificate of Incorporation of CIENA to constitute this First Supplemental
Indenture a valid and binding agreement for the uses and purposes set forth
herein, in accordance with its terms, have been done and taken, and the
execution and delivery of this First Supplemental Indenture have been in all
respects duly authorized by CIENA;


NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, CIENA and
the Trustee hereby agree as follows:



	1	 	For the purposes of this First Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise
requires: (i) the capitalized terms and expressions used herein shall
have the same meaning as corresponding terms and expressions used in the
Indenture; and (ii) the words “herein,” “hereof” and “hereby” and other
words of similar import used in this First Supplemental Indenture refer to
this First Supplemental Indenture as a whole and not to any particular
section hereof.
	 
	2	 	CIENA hereby assumes all the covenants, agreements and obligations of the
Company under the Notes and the Indenture, including the obligation to
make due and punctual payment of the principal of and premium, if any, and
interest on all of the Notes and the due and punctual performance of all
of the covenants and conditions to be performed by the Company under the
Indenture. From and after the effective time of the Merger, the Notes
shall be convertible into shares of common stock of CIENA, $.01 par value
(the “CIENA Common Stock”) on the same terms and basis (and subject to the
same adjustments under the Indenture) as the Notes were convertible into
common stock of ONI Systems prior to the effectiveness of the Merger,
provided that the Conversion Rate at which shares of CIENA Common Stock
shall be delivered upon conversion shall initially be 7.75252416 shares of
CIENA Common Stock for each $1,000 principal amount of Notes (subject to
the provisions of Article XII of the Indenture), and on and after the
effective time of the Merger references in the Indenture to “Company” shall be deemed to be
references to CIENA.



 






 







	3	 	The Trustee accepts the amendment of the Indenture effected by this First
Supplemental Indenture and agrees to execute the trust created by the
Indenture, as hereby amended, including the terms and conditions as set
forth in the Indenture, as hereby amended, including the terms and
provisions defining and limiting the liabilities and responsibilities of
the Trustee, which terms and provisions shall in like manner define and
limit its liabilities in the performance of the trust created by the
Indenture, as hereby amended, and without limiting the generality of the
foregoing, the Trustee has no responsibility for the correctness of the
recitals of fact herein contained which shall be taken as the statements
of CIENA and makes no representations as to the validity or sufficiency of
this First Supplemental Indenture and shall incur no liability or
responsibility in respect of the validity thereof.
	 
	4	 	Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed, and all the terms, conditions and provisions
hereof shall remain in full force and effect.
	 
	5	 	This First Supplemental Indenture shall form a part of the Indenture for
all purposes, and every holder of Notes heretofore or hereafter
authenticated shall be bound hereby.
	 
	6	 	This First Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original, and all of such counterparts shall together constitute one and
the same instrument.
	 
	7	 	This First Supplemental Indenture shall be deemed to be a contract made
under the laws of the State of New York and for all purposes shall be
governed by and construed in accordance with such laws.



 






 






IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed all as of the day and year first above written.



	 	CIENA CORPORATION

a Delaware corporation




	 	By: /s/ JOSEPH R. CHINNICI                                        

Joseph R. Chinnici

Senior Vice President and Chief Financial Officer




	 	STATE STREET BANK AND TRUST

COMPANY OF CALIFORNIA, N.A.,




	 	By: /S/ STEPHEN RIVERO                                              

Stephen Rivero

Vice President



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