Exhibit 4.3


 




 





ADVANCED
MEDICAL OPTICS, INC.,


 


To


 


U.S.
BANK NATIONAL ASSOCIATION,


as
Trustee


 










 


INDENTURE


 


Dated
as of


 


July 18,
2005


 






 


1.375% Convertible Senior Subordinated Notes due 2025


 




 





 

















 


TABLE OF CONTENTS


 




	
   

  	
   

  	
  PAGE

  
	
  ARTICLE 1

  
	
  DEFINITIONS

  
	
  Section 1.01 .

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
  ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES

  
	
   

  	
   

  	
   

  
	
  Section 2.01 .

  	
  Designation
  Amount and Issue of Notes

  	
  12

  
	
  Section 2.02 .

  	
  Form of
  Notes

  	
  12

  
	
  Section 2.03 .

  	
  Date and
  Denomination of Notes; Payments of Interest

  	
  13

  
	
  Section 2.04 .

  	
  Execution
  of Notes

  	
  15

  
	
  Section 2.05 .

  	
  Exchange
  and Registration of Transfer of Notes; Restrictions on Transfer

  	
  15

  
	
  Section 2.06 .

  	
  Mutilated,
  Destroyed, Lost or Stolen Notes

  	
  21

  
	
  Section 2.07 .

  	
  Temporary
  Notes

  	
  22

  
	
  Section 2.08 .

  	
  Cancellation
  of Notes

  	
  23

  
	
  Section 2.09 .

  	
  CUSIP
  Numbers

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
  REDEMPTION AND REPURCHASE OF NOTES

  
	
   

  	
   

  	
   

  
	
  Section 3.01 .

  	
  Optional
  Redemption of Notes

  	
  23

  
	
  Section 3.02 .

  	
  Notice
  of Optional Redemption; Selection of Notes

  	
  23

  
	
  Section 3.03 .

  	
  Payment of
  Notes Called for Redemption by the Company

  	
  25

  
	
  Section 3.04 .

  	
  Conversion
  Arrangement on Call for Redemption

  	
  26

  
	
  Section 3.05 .

  	
  Repurchase
  at Option of Holders Upon a Fundamental Change

  	
  27

  
	
  Section 3.06 .

  	
  Repurchase
  of Notes by the Company at Option of the Holder

  	
  28

  
	
  Section 3.07 .

  	
  Company
  Repurchase Notice.

  	
  30

  
	
  Section 3.08 .

  	
  Effect
  of Repurchase Notice; Withdrawal

  	
  31

  
	
  Section 3.09 .

  	
  Deposit
  of Repurchase Price

  	
  32

  
	
  Section 3.10 .

  	
  Notes
  Repurchased in Part

  	
  32

  
	
  Section 3.11 .

  	
  Repayment
  to the Company

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  
	
  SUBORDINATION OF NOTES

  
	
   

  	
   

  	
   

  
	
  Section 4.01 .

  	
  Notes
  Subordinated To Senior Indebtedness

  	
  33

  
	
  Section 4.02 .

  	
  No
  Payment On Notes In Certain Circumstances

  	
  33

  
	
  Section 4.03 .

  	
  Payment
  Over Of Proceeds Upon Dissolution, Etc.

  	
  34

  
	
  Section 4.04 .

  	
  Subrogation

  	
  36

  






 


i

















 




	
   

  	
   

  	
  PAGE

  
	
  Section 4.05 .

  	
  Obligations
  Of Company Unconditional

  	
  36

  
	
  Section 4.06 .

  	
  Notice
  To Trustee

  	
  37

  
	
  Section 4.07 .

  	
  Trustee’s
  Relation To Senior Indebtedness

  	
  38

  
	
  Section 4.08 .

  	
  Subordination
  Rights Not Impaired By Acts Or Omissions Of The Company Or Holders Of Senior
  Indebtedness

  	
  38

  
	
  Section 4.09 .

  	
  Holders
  Authorize Trustee To Effectuate Subordination Of Notes

  	
  38

  
	
  Section 4.10 .

  	
  This
  Article Not To Prevent Events Of Default

  	
  39

  
	
  Section 4.11 .

  	
  Trustee’s
  Compensation And Rights To Indemnification Not Prejudiced

  	
  39

  
	
  Section 4.12 .

  	
  No
  Waiver Of Subordination Provisions

  	
  39

  
	
  Section 4.13 .

  	
  Subordination
  Provisions Not Applicable To Money Held In Trust For Holders; Payments
  May Be Paid Prior To Dissolution

  	
  39

  
	
  Section 4.14 .

  	
  Acceleration
  Of Notes

  	
  40

  
	
  Section 4.15 .

  	
  Certain
  Conversions and Repurchases Not Deemed Payment

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
  CONTINGENT INTEREST

  
	
   

  	
   

  	
   

  
	
  Section 5.01 .

  	
  Contingent
  Interest

  	
  40

  
	
  Section 5.02 .

  	
  Payment
  of Contingent Interest

  	
  41

  
	
  Section 5.03 .

  	
  Contingent
  Interest Notification

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
  PARTICULAR COVENANTS OF THE COMPANY

  
	
   

  	
   

  	
   

  
	
  Section 6.01 .

  	
  Payment
  of Principal, Premium and Interest

  	
  41

  
	
  Section 6.02 .

  	
  Maintenance
  of Office or Agency

  	
  41

  
	
  Section 6.03 .

  	
  Appointments
  to Fill Vacancies in Trustee’s Office

  	
  42

  
	
  Section 6.04 .

  	
  Provisions
  as to Paying Agent

  	
  42

  
	
  Section 6.05 .

  	
  Existence

  	
  43

  
	
  Section 6.06 .

  	
  Payment
  of Taxes and Other Claims

  	
  43

  
	
  Section 6.07 .

  	
  Rule 144A
  Information Requirement

  	
  44

  
	
  Section 6.08 .

  	
  Stay,
  Extension and Usury Laws

  	
  44

  
	
  Section 6.09 .

  	
  Compliance
  Certificate

  	
  44

  
	
  Section 6.10 .

  	
  Additional
  Interest Notice

  	
  45

  
	
  Section 6.11 .

  	
  Tax
  Treatment

  	
  45

  
	
  Section 6.12 .

  	
  Limitation
  on Layering

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
  NOTEHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 7.01 .

  	
  Noteholders’
  Lists

  	
  46

  
	
  Section 7.02 .

  	
  Preservation
  and Disclosure of Lists

  	
  46

  
	
  Section 7.03 .

  	
  Reports
  by Trustee

  	
  47

  
	
  Section 7.04 .

  	
  Reports
  by Company

  	
  47

  






 


ii

















 




	
   

  	
   

  	
  PAGE

  
	
  ARTICLE 8

  
	
  REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT

  
	
   

  	
   

  	
   

  
	
  Section 8.01 .

  	
  Events
  of Default

  	
  47

  
	
  Section 8.02 .

  	
  Payments
  of Notes on Default; Suit Therefor

  	
  50

  
	
  Section 8.03 .

  	
  Application
  of Monies Collected by Trustee

  	
  51

  
	
  Section 8.04 .

  	
  Proceedings
  by Noteholder

  	
  52

  
	
  Section 8.05 .

  	
  Proceedings
  by Trustee

  	
  53

  
	
  Section 8.06 .

  	
  Remedies
  Cumulative and Continuing

  	
  53

  
	
  Section 8.07 .

  	
  Direction
  of Proceedings and Waiver of Defaults by Majority of Noteholders

  	
  53

  
	
  Section 8.08 .

  	
  Notice
  of Defaults

  	
  54

  
	
  Section 8.09 .

  	
  Undertaking
  to Pay Costs

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
  THE TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 9.01 .

  	
  Duties
  and Responsibilities of Trustee

  	
  55

  
	
  Section 9.02 .

  	
  Reliance on Documents, Opinions, etc.

  	
  56

  
	
  Section 9.03 .

  	
  No
  Responsibility for Recitals, etc.

  	
  57

  
	
  Section 9.04 .

  	
  Trustee,
  Paying Agents, Conversion Agents or Registrar May Own Notes

  	
  58

  
	
  Section 9.05 .

  	
  Monies
  to be Held in Trust

  	
  58

  
	
  Section 9.06 .

  	
  Compensation
  and Expenses of Trustee

  	
  58

  
	
  Section 9.07 .

  	
  Officers’
  Certificate as Evidence

  	
  59

  
	
  Section 9.08 .

  	
  Conflicting
  Interests of Trustee

  	
  59

  
	
  Section 9.09 .

  	
  Eligibility
  of Trustee

  	
  59

  
	
  Section 9.10 .

  	
  Resignation
  or Removal of Trustee

  	
  59

  
	
  Section 9.11 .

  	
  Acceptance
  by Successor Trustee

  	
  61

  
	
  Section 9.12 .

  	
  Succession
  by Merger

  	
  61

  
	
  Section 9.13 .

  	
  Preferential
  Collection of Claims

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
  THE NOTEHOLDERS

  
	
   

  	
   

  	
   

  
	
  Section 10.01 .

  	
  Action
  by Noteholders

  	
  62

  
	
  Section 10.02 .

  	
  Proof of
  Execution by Noteholders

  	
  62

  
	
  Section 10.03 .

  	
  Absolute
  Owners

  	
  63

  
	
  Section 10.04 .

  	
  Company-Owned
  Notes Disregarded

  	
  63

  
	
  Section 10.05 .

  	
  Revocation
  of Consents; Future Holders Bound

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
  SUPPLEMENTAL INDENTURES

  
	
   

  	
   

  	
   

  
	
  Section 11.01 .

  	
  Supplemental
  Indentures Without Consent of Noteholders

  	
  64

  






 


iii

















 




	
   

  	
   

  	
  PAGE

  
	
  Section 11.02 .

  	
  Supplemental
  Indenture With Consent of Noteholders

  	
  65

  
	
  Section 11.03 .

  	
  Effect
  of Supplemental Indenture

  	
  67

  
	
  Section 11.04 .

  	
  Notation
  on Notes

  	
  67

  
	
  Section 11.05 .

  	
  Evidence
  of Compliance of Supplemental Indenture to be Furnished to Trustee

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  
	
  CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE

  
	
   

  	
   

  	
   

  
	
  Section 12.01 .

  	
  Company
  May Consolidate on Certain Terms

  	
  68

  
	
  Section 12.02 .

  	
  Successor
  to be Substituted

  	
  69

  
	
  Section 12.03 .

  	
  Opinion
  of Counsel to be Given Trustee

  	
  69

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  
	
  SATISFACTION AND DISCHARGE OF INDENTURE

  
	
   

  	
   

  	
   

  
	
  Section 13.01 .

  	
  Discharge
  of Indenture

  	
  70

  
	
  Section 13.02 .

  	
  Deposited
  Monies to be Held in Trust by Trustee

  	
  70

  
	
  Section 13.03 .

  	
  Paying
  Agent to Repay Monies Held

  	
  71

  
	
  Section 13.04 .

  	
  Return
  of Unclaimed Monies

  	
  71

  
	
  Section 13.05 .

  	
  Reinstatement

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14

  
	
  IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  
	
   

  	
   

  	
   

  
	
  Section 14.01 .

  	
  Indenture
  and Notes Solely Corporate Obligations

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15

  
	
  CONVERSION OF NOTES

  
	
   

  	
   

  	
   

  
	
  Section 15.01 .

  	
  Right to
  Convert

  	
  72

  
	
  Section 15.02 .

  	
  Exercise
  of Conversion Right; No Adjustment for Interest or Dividends

  	
  75

  
	
  Section 15.03 .

  	
  Cash
  Payments in Lieu of Fractional Shares

  	
  77

  
	
  Section 15.04 .

  	
  Conversion
  Rate

  	
  78

  
	
  Section 15.05 .

  	
  Adjustment
  of Conversion Rate

  	
  78

  
	
  Section 15.06 .

  	
  Effect
  of Reclassification, Consolidation, Merger or Sale

  	
  87

  
	
  Section 15.07 .

  	
  Taxes on
  Shares Issued

  	
  90

  
	
  Section 15.08 .

  	
  Reservation
  of Shares, Shares to be Fully Paid; Compliance with Governmental
  Requirements; Listing of Common Stock

  	
  90

  
	
  Section 15.09 .

  	
  Responsibility
  of Trustee

  	
  91

  
	
  Section 15.10 .

  	
  Notice
  to Holders Prior to Certain Actions

  	
  92

  
	
  Section 15.11 .

  	
  Stockholder
  Rights Plans

  	
  92

  
	
  Section 15.12 .

  	
  Satisfaction
  of Conversion Obligation

  	
   

  
	
  Section 15.13 .

  	
  Settlement
  Upon Conversion

  	
  93

  






 


iv

















 




	
   

  	
   

  	
  PAGE

  
	
  Section 15.14 .

  	
  Fundamental
  Change Make Whole Amount

  	
  94

  
	
   

  	
   

  	
   

  
	
  ARTICLE 16

  
	
  MISCELLANEOUS PROVISIONS

  
	
   

  	
   

  	
   

  
	
  Section 16.01 .

  	
  Provisions
  Binding on Company’s Successors

  	
  96

  
	
  Section 16.02 .

  	
  Official
  Acts by Successor Corporation

  	
  96

  
	
  Section 16.03 .

  	
  Addresses
  for Notices, etc.

  	
  96

  
	
  Section 16.04 .

  	
  Governing
  Law

  	
  97

  
	
  Section 16.05 .

  	
  Evidence
  of Compliance with Conditions Precedent, Certificates to Trustee

  	
  97

  
	
  Section 16.06 .

  	
  Legal
  Holidays

  	
  97

  
	
  Section 16.07 .

  	
  Trust
  Indenture Act

  	
  97

  
	
  Section 16.08 .

  	
  No
  Security Interest Created

  	
  98

  
	
  Section 16.09 .

  	
  Benefits
  of Indenture

  	
  98

  
	
  Section 16.10 .

  	
  Table of
  Contents, Headings, etc.

  	
  98

  
	
  Section 16.11 .

  	
  Authenticating
  Agent

  	
  98

  
	
  Section 16.12 .

  	
  Execution
  in Counterparts

  	
  99

  
	
  Section 16.13 .

  	
  Severability

  	
  99

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of Note

  	
  A-1

  
	
  Exhibit B

  	
  Form of Restrictive
  Legend for Common Stock Issued Upon Conversion

  	
  B-1

  






 


v
















 


INDENTURE


 


INDENTURE dated as of July 18,
2005 between Advanced Medical Optics, Inc., a Delaware corporation
(hereinafter called the “ Company ”),
having its principal office at 1700 E. St. Andrew Place, Santa Ana, California
92705, and U.S. Bank National Association, a national banking association duly
organized and existing under the laws of the United States, as trustee
hereunder (hereinafter called the “ Trustee
”).


 


WITNESSETH:


 


WHEREAS, for its lawful
corporate purposes, the Company has duly authorized the issue of its 1.375%
Convertible Senior Subordinated Notes due 2025 (hereinafter called the “ Notes ”), in an aggregate principal amount not to exceed $150,000,000
and, to provide the terms and conditions upon which the Notes are to be
authenticated, issued and delivered, the Company has duly authorized the
execution and delivery of this Indenture; and


 


WHEREAS, the Notes, the
certificate of authentication to be borne by the Notes, a form of assignment, a
form of option to elect repurchase upon a Fundamental Change (as defined
below), a form of repurchase notice and a form of conversion notice to be borne
by the Notes are to be substantially in the forms hereinafter provided for; and


 


WHEREAS, all acts and things
necessary to make the Notes, when executed by the Company and authenticated and
delivered by the Trustee or a duly authorized authenticating agent, as in this
Indenture provided, the valid, binding and legal obligations of the Company,
and to constitute this Indenture a valid agreement according to its terms, have
been done and performed, and the execution of this Indenture and the issue
hereunder of the Notes have in all respects been duly authorized,


 


NOW, THEREFORE, THIS
INDENTURE WITNESSETH:


 


That in order to declare the
terms and conditions upon which the Notes are, and are to be, authenticated,
issued and delivered, and in consideration of the premises and of the purchase
and acceptance of the Notes by the holders thereof, the Company covenants and
agrees with the Trustee for the equal and proportionate benefit of the
respective holders from time to time of the Notes (except as otherwise provided
below), as follows:


 


ARTICLE 1


DEFINITIONS


 


Section 1.01.
Definitions. The terms
defined in this Section 1.01 (except as herein otherwise expressly
provided or unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section 1.01. All other terms used in this
Indenture that are defined in the Trust Indenture Act (as defined below) or
which are by reference


 

















 


therein defined in the
Securities Act (except as herein otherwise expressly provided or unless the
context otherwise requires) shall have the respective meanings assigned to such
terms in the Trust Indenture Act and in the Securities Act as in force at the
date of the execution of this Indenture. The words “ herein, ” “ hereof, ” “ hereunder ” and words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
Subdivision. The terms defined in this Article include the plural as well
as the singular.


 


“ Additional Interest ” has the meaning specified for Additional
Interest Amount in Section 2(e) of the Registration Rights Agreement
(as defined below).


 


“ Additional Interest Notice ” has the meaning specified in Section 6.10.


 


“ Additional Shares ” has the meaning specified in Section 15.13.


 


“ Adjustment Event ” has the meaning specified in Section 15.05(k).


 


“ Affiliate ” of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
“ control, ” when used with respect to any specified Person means the power
to direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise, and the terms “ controlling ” and “ controlled ” have meanings correlative to the foregoing.


 


“ Agent Members ”
has the meaning specified in Section 2.05(b).


 


“ Board of Directors ”
means the Board of Directors of the Company or a committee of such Board duly
authorized to act for it hereunder.


 


“ Business Day ”
means any day except a Saturday, Sunday or legal holiday on which banking
institutions in The City of New York are authorized or obligated by law,
regulation or executive order to close.


 


“ Closing Sale Price ”
of any share of Common Stock or any other security on any Trading Date means
the closing sale price of such security (or, if no closing sale price is
reported, the average of the closing bid and ask prices or, if more than one in
either case, the average of the average closing bid and the average closing ask
prices) on such date as reported in composite transactions for the principal
United States securities exchange on which the shares of Common Stock are
traded or, if the shares of Common Stock are not listed on a United States
national or regional securities exchange, as reported by the Nasdaq System or
by the National Quotation Bureau Incorporated. In the absence of such a
quotation, the Company shall be entitled to determine the Closing Sale Price on
the basis it considers appropriate. The Closing Sale Price shall be determined
without reference to extended or after hours trading.


 


2

















 


“ Commission ”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.


 


“ 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. Subject to the provisions of Section 15.06,
however, shares issuable on conversion of Notes shall include only shares of
the class designated as common stock of the Company at the date of this
Indenture (namely, the Common Stock, par value $.01) 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 that if at any time there shall
be more than one such resulting class, the shares of each such class then so
issuable on conversion 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
Indenture, and, subject to the provisions of Article 12 and Section 15.06,
shall include its successors and assigns.


 


“ Company Repurchase Notice ” has the meaning specified in Section 3.07(b).


 


“ Company Repurchase Notice Date ” has the meaning specified in Section 3.07.


 


“ contingent interest ”
means interest that accrues and is payable as provided in Article 5.


 


“ Conversion Date ”
has the meaning specified in Section 15.02.


 


“ Conversion Notice ”
has the meaning specified in Section 15.02.


 


“ Conversion Obligation ”
has the meaning specified in Section 15.12(a).


 


“ Conversion Price ”
on any date of determination means $1,000 divided by the Conversion Rate as of
such date.


 


“ Conversion Rate ”
has the meaning specified in Section 15.04.


 


“ Conversion Value ”
has the meaning specified in Section 15.13.


 


3

















 


“ Corporate Trust Office ”
or other similar term, means the designated office of the Trustee at which at
any particular time its corporate trust business as it relates to this
Indenture shall be administered, which office is, at the date as of which this
Indenture is dated, located at U.S. Bank National Association, 60 Livingston
Avenue, St. Paul, Minnesota 55107-1491, Attention: Corporate Trust Office or at
any other time at such other address as the Trustee may designate from time to
time by notice to the Company.


 


“ Current Market Price ”
has the meaning specified in Section 15.05(g)(i).


 


“ Custodian ”
means U.S. Bank National Association, as custodian with respect to the Notes in
global form, or any successor entity thereto.


 


“ default ” means
any event that is, or after notice or passage of time, or both, would be, an
Event of Default.


 


“ Defaulted Interest ”
has the meaning specified in Section 2.03.


 


“ Depositary ”
means the clearing agency registered under the Exchange Act that is designated
to act as the Depositary for the Global Notes. DTC shall be the initial
Depositary, until a successor shall have been appointed and become such
pursuant to the applicable provisions of this Indenture, and thereafter, “ Depositary ” shall mean or include such successor.


 


“ Designated Senior Indebtedness ” means Indebtedness outstanding under the Senior Credit Facility
and any other Senior Indebtedness of the Company that at the date of
determination has an aggregate principal amount outstanding of at least $25.0
million if the instrument governing such Senior Indebtedness expressly states
that such Indebtedness is “ Designated Senior
Indebtedness ” for
purposes of this Indenture.


 


“ Determination Date ”
has the meaning specified in Section 15.05(k).


 


“ DTC ” means The
Depository Trust Company.


 


“ Effective Date ”
has the meaning specified in Section 15.14(b).


 


“ Event of Default ”
means any event specified in Section 8.01 as an Event of Default.


 


“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder, as in effect from time to time.


 


“ Exchange Property ”
has the meaning specified in Section 15.06(b).


 


“Exchange
Property Value” has
the meaning specified in Section 15.14(h).


 


4

















 


“ Exchange Property Weighted Average Price ” has the meaning specified in Section 15.06(d).


 


“ Ex-Dividend Time ”
has the meaning specified in Section 15.01(b).


 


“ Expiration Time ”
has the meaning specified in Section 15.05(f).


 


“ Fair Market Value ”
has the meaning specified in Section 15.05(g)(ii).


 


“ Fiscal Quarter ”
means, with respect to the Company, the fiscal quarter publicly disclosed by
the Company. The Company shall confirm the ending dates of its fiscal quarters
for the current fiscal year to the Trustee upon the Trustee’s request.


 


“ Fundamental Change ”
means any transaction or event (whether by means of an exchange offer,
liquidation, tender offer, consolidation, merger, combination,
reclassification, recapitalization or otherwise) in connection with which more
than 50% of the Common Stock is exchanged for, converted into, acquired for or
constitutes solely the right to receive, consideration which is not at least
90% common stock that is: (a) listed on, or immediately after such
transaction or event, will be listed on, a United States national securities
exchange or (b) approved, or immediately after such transaction or event
will be approved, for quotation on the Nasdaq National Market or any similar
United States system of automated dissemination of quotations of securities
prices.


 


“ Fundamental Change Repurchase Date ” has the meaning specified in Section 3.05(a).


 


“ Global Note ”
has the meaning specified in Section 2.02.


 


“ Indebtedness ”
means, with respect to any Person, and without duplication, whether recourse is
to all or a portion of the assets of such Person and whether or not contingent,
(a) all indebtedness, obligations and other liabilities of such Person for
borrowed money (including obligations of the Person in respect of overdrafts,
foreign exchange contracts, currency exchange agreements, interest rate
protection agreements, and any loans or advances from banks, whether or not
evidenced by notes or similar instruments) or evidenced by bonds, debentures,
notes or similar instruments, other than any account payable or other accrued
current liability or obligation incurred in the ordinary course of business in
connection with the obtaining of materials or services; (b) all
reimbursement obligations and other liabilities of such Person with respect to
letters of credit, bank guarantees or bankers’ acceptances; (c) all
obligations and liabilities in respect of 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 all
obligations and other liabilities under any lease or related document
(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


 


5

















 


the leased property to the
lessor and the obligations of such Person under such lease or related document
to purchase or to cause a third party to purchase such leased property; (d) all
net obligations of such Person 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; (e) all
direct or indirect guaranties or similar agreements by such Person in respect
of, and obligations or liabilities 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 (a) through (d); (f) any indebtedness or other
obligations described in clauses (a) through (e) 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 (g) any
and all deferrals, renewals, extensions and refundings of, or amendments,
modifications or supplements to, any indebtedness, obligation or liability of
the kind described in clauses (a) through (f).


 


“ Indenture ”
means this instrument as originally executed or, if amended or supplemented as
herein provided, as so amended or supplemented.


 


“ Initial Purchasers ”
means each of Morgan Stanley & Co. Incorporated, J.P. Morgan
Securities Inc. and UBS Securities LLC (each, an “ Initial Purchaser ”).


 


“ interest ”
means, when used with reference to the Notes, any interest payable under the
terms of the Notes, including contingent interest, if any, and Additional
Interest, if any, payable under the terms of the Registration Rights Agreement.


 


“ Junior Securities ”
has the meaning specified in Section 4.15.


 


“ Make Whole Amount ”
has the meaning specified in Section 15.13.


 


“ Maturity Date ”
means July 1, 2025.


 


“ Measurement Period ”
has the meaning specified in Section 15.01.


 


“ Net Exchange Property Amount ” has the meaning specified in Section 15.06(e).


 


“Net Share
Amount” has the
meaning specified in Section 15.13(b).


 


“Net Shares” has the meaning specified in Section 15.13(b).


 


“ non-electing share ”
has the meaning specified in Section 15.06.


 


“ Note ” or “ Notes ” means any Note or Notes, as the case may be, authenticated and
delivered under this Indenture, including any Global Note.


 


6

















 


“ Note Register ”
has the meaning specified in Section 2.05(a).


 


“ Note Registrar ”
has the meaning specified in Section 2.05(a).


 


“ Noteholder ” or
“ holder ” as applied to any Note, or other similar terms (but excluding
the term “ beneficial holder ”), means any Person in whose name at
the time a particular Note is registered on the Note Registrar’s books.


 


“ Obligations ”
means any principal, interest (including, in the case of Senior Indebtedness,
Post-Petition Interest), penalties, fees, indemnifications, reimbursement
obligations, damages and other liabilities payable under the documentation
governing any Indebtedness.


 


“ Officer ” means
any person holding any of the following positions with the Company: the
Chairman of the Board, any Vice Chairman, the Chief Executive Officer, the
President, any Vice President (whether or not designated by a number or numbers
or word or words added before or after the title “Vice President”), the Chief
Financial Officer, the Treasurer and the Secretary.


 


“ Officers’ Certificate ”,
when used with respect to the Company, means a certificate signed by any two
Officers or by one such Officer and any Assistant Treasurer or Assistant
Secretary of the Company.


 


“ Opinion of Counsel ”
means an opinion in writing signed by legal counsel, who may be an employee of
or counsel to the Company, or other counsel reasonably acceptable to the
Trustee.


 


“ outstanding ”,
when used with reference to Notes and subject to the provisions of Section 10.04,
means, as of any particular time, all Notes authenticated and delivered by the
Trustee under this Indenture, except:


 


(a) Notes theretofore
canceled by the Trustee or delivered to the Trustee for cancellation;


 


(b) Notes, or portions
thereof, (i) for the redemption or repurchase of which monies in the
necessary amount shall have been deposited in trust with the Trustee or with
any Paying Agent (other than the Company) or (ii) which shall have been
otherwise discharged in accordance with Article 13;


 


(c) Notes in lieu of
which, or in substitution for which, other Notes shall have been authenticated
and delivered pursuant to the terms of Section 2.06; and


 


(d) Notes converted
pursuant to Article 15 and Notes paid or redeemed or repurchased pursuant
to Article 3.


 


7

















 


“ Paying Agent ”
has the meaning specified in Section 2.08.


 


“ Payment Blockage Notice ” has the meaning specified in Section 4.02(a).


 


“ Payment Blockage Period ” has the meaning specified in Section 4.02(a).


 


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


 


“ PORTAL Market ”
means The PORTAL Market operated by the Nasdaq Stock Market or any successor
thereto.


 


“ Post-Petition Interest ”
means, with respect to any Indebtedness of any Person, all interest accrued or
accruing on such Indebtedness after the commencement of any insolvency or
liquidation proceeding against such Person in accordance with and at the
contract rate (including, without limitation, any rate applicable upon
default), specified in the agreement or instrument creating, evidencing or
governing such Indebtedness, whether or not, pursuant to applicable law or
otherwise, the claim for such interest is allowed as a claim in such insolvency
or liquidation proceeding.


 


“ Predecessor Note ”
of any particular Note means every previous Note evidencing all or a portion of
the same debt as that evidenced by such particular Note, and, for the purposes
of this definition, any Note authenticated and delivered under Section 2.06
in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the
same debt as the lost, destroyed or stolen Note that it replaces.


 


“ premium ” means
any premium payable under the terms of the Notes.


 


“Principal
Return” has the
meaning specified in Section 15.13(b).


 


“ Purchased Shares ”
has the meaning specified in Section 15.05(f).


 


“record
date ” has the meaning specified in Section 15.05(g)(iii).


 


“ Record Date ”
has the meaning specified in Section 2.03.


 


“ Registration Rights Agreement ” means the Registration Rights Agreement, dated as of July 18,
2005, between the Company and the Initial Purchasers, as amended from time to
time in accordance with its terms.


 


“ representative ”
means (a) the indenture trustee or other trustee, agent or representative
for holders of Senior Indebtedness or (b) with respect to any Senior Indebtedness
that does not have any such trustee, agent or other representative, (i) in
the case of such Senior Indebtedness issued pursuant to an agreement providing
for voting arrangements as among the holders or owners of such Senior
Indebtedness, any holder or


 


8

















 


owner of such Senior
Indebtedness acting with the consent of the required persons necessary to bind
such holders or owners of such Senior Indebtedness and (ii) in the case of
all other such Senior Indebtedness, the holder or owner of such Senior
Indebtedness.


 


“ Repurchase Date ”
has the meaning specified in Section 3.06(a).


 


“ Repurchase Notice ”
has the meaning specified in Section 3.05(c).


 


“ Responsible Officer ”
shall mean, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of such person’s knowledge of or familiarity with the particular
subject.


 


“ Restricted Securities ”
has the meaning specified in Section 2.05(c).


 


“ Rule 144A ”
means Rule 144A as promulgated under the Securities Act as it may be amended
from time to time hereafter.


 


“ Securities ”
has the meaning specified in Section 15.05(d).


 


“ Securities Act ”
means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, as in effect from time to time.


 


“ Senior Credit Facility ”
means the senior credit facility, under the Second Amended and Restated Credit
Agreement dated as of June 25, 2004, among Advanced Medical Optics, Inc.,
as the Borrower, certain of its subsidiaries, as the Guarantors, Lehman
Commercial Paper Inc., as Syndication Agent, General Electric Capital
Corporation and Bank One, NA, as Co-Documentation Agents, Bank of America,
N.A., as Administrative Agent, Swing Line Lender, Foreign Currency Fronting
Lender and L/C Issuer, and the other lenders party thereto, and Banc of America
Securities LLC and Lehman Brothers Inc., as Joint Lead Arrangers and Joint Book
Runners, as amended by the First Amendment and Second Amendment thereto,
together with the documents now or hereafter related thereto (including,
without limitation, any guarantee agreements and any security documents
executed in connection therewith), in each case as such agreements may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any deferral thereof or any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including by way of increasing the amount of commitments
thereunder and adding the Company or any Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders (or other
institutions).


 


9

















 


“ Senior Indebtedness ”
means, with respect to any Person, whether outstanding on the date of this
Indenture or thereafter issued, all Obligations of such Person under the Senior
Credit Facility, hedging obligations of such Person and any other Indebtedness
of such Person unless the instrument creating or evidencing such Indebtedness
expressly provides that such Indebtedness is not senior or superior in right of
payment to the Notes, including other obligations, such as fees, expenses,
reimbursement obligations arising from letters of credit, indemnities and other
obligations specified in the documents governing such Senior Indebtedness, and
all renewals, extensions, modifications, amendments or refinancings thereof; provided , that in no event shall Senior
Indebtedness include (a) to the extent that it may constitute
Indebtedness, any Obligation for federal, state, local or other taxes; (b) any
Indebtedness among or between the Company and any Subsidiary, unless and for so
long as such Indebtedness has been pledged to secure Obligations to a third
party; (c) to the extent that it may constitute Indebtedness, any
Obligation in respect of any trade payable incurred for the purchase of goods
or materials, or for services obtained in the ordinary course of business; (d) Indebtedness
evidenced by the Notes; (e) Indebtedness that is expressly subordinate or
junior in right of payment to any other Indebtedness of such Person; provided that for the avoidance of doubt, Indebtedness
under the Senior Credit Facility shall not be deemed expressly subordinate or
junior to liens of Indebtedness permitted under the Senior Credit Facility
simply by reason of the fact that such liens or Indebtedness are permitted
under the Senior Credit Facility; (f) to the extent that it may constitute
Indebtedness, any Obligation owing under leases (other than capital lease
obligations) or management agreements; and (g) any Obligation that by
operation of law is subordinate to any general unsecured Obligations.


 


“ Significant Subsidiary ”
means, as of any date of determination, a Subsidiary of the Company that would
constitute a “ significant subsidiary ” as such term is defined under Rule 1-02(w) of
Regulation S-X of the Commission as in effect on the date of this Indenture.


 


“ Stock Price ”
has the meaning specified in Section 15.13(b).


 


“ Subsidiary ”
means, with respect to any Person, (i) any corporation, association or
other business entity of which more than 50% of the total voting power of
shares of capital stock or other equity interest entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other subsidiaries of that
Person (or a combination thereof) and (ii) any partnership (a) the
sole general partner or managing general partner of which is such Person or a
subsidiary of such Person or (b) the only general partners of which are
such Person or of one or more subsidiaries of such Person (or any combination
thereof).


 


10

















 


“ Tax Original Issue Discount ” means the amount of ordinary interest income on a Note that must
be accrued as original issue discount for United States Federal income tax
purposes pursuant to U.S. Treasury Regulation section 1.1275-4.


 


“ Ten Day Weighted Average Price ” has the meaning specified in Section 15.13(a).


 


“ Trading Day ”
has the meaning specified in Section 15.05(g)(iv).


 


“ Trading Price ”
means, with respect to a Note on any date of determination, the average of the
secondary market bid quotations per $1,000 principal amount of Notes obtained
by the Trustee for $2,000,000 principal amount of Notes 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 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; and provided further that, if the Trustee
cannot reasonably obtain at least one bid for $2,000,000 principal amount of
Notes from a nationally recognized securities dealer, then the Trading Price
per $1,000 principal amount of Notes shall be deemed to be less than 103% of
the product of (a) the Conversion Rate on such determination date and (b) the
Closing Sale Price of a share of Common Stock on such determination date; provided, however, that for purposes of
determining the “ Trading Price ” as used in Article 5 only, if
the Trustee cannot reasonably obtain at least one bid for $2,000,000 principal
amount of the Notes from a nationally recognized securities dealer, then the
Trading Price of a Note will be deemed to equal the product of (1) the
Conversion Rate on such determination date and (2) the average Closing
Sale Price of a share of Common Stock over the five Trading- Day period ending
on such determination date.


 


“ Trigger Event ”
has the meaning specified in Section 15.05(d).


 


“ Trust Indenture Act ”
means the Trust Indenture Act of 1939, as amended, as it was in force at the
date of this Indenture, except as provided in Section 12.03; provided that if the Trust Indenture Act
of 1939 is amended after the date hereof, the term “ Trust Indenture Act ”
shall mean, to the extent required by such amendment, the Trust Indenture Act
of 1939 as so amended.


 


“ Trustee ” means
U.S. Bank National Association and its successors and any corporation resulting
from or surviving any consolidation or merger to which it or its successors may
be a party and any successor trustee at the time serving as successor trustee
hereunder.


 


“ Volume Weighted Average Price ” has the meaning specified in Section 15.13(a).


 


11
















 


ARTICLE 2


ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF
NOTES


 


Section 2.01 . Designation Amount and Issue of Notes .
The Notes shall be designated as “ 1.375%
Convertible Senior Subordinated Notes due 2025. ” Notes not to
exceed the aggregate principal amount of $150,000,000 (except pursuant to
Sections 2.05, 2.06, 3.03, 3.05, 3.06 and 15.02 hereof) upon the execution of
this Indenture, or from time to time thereafter, may be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver Notes upon a written order of the Company,
such order signed by an Officer or by any Assistant Treasurer of the Company or
any Assistant Secretary of the Company, without any further action by the
Company hereunder.


 


Section 2.02 . Form of Notes . The Notes and the
Trustee’s certificate of authentication to be borne by such Notes shall be
substantially in the form set forth in Exhibit A hereto. The terms and
provisions contained in the form of Note attached as Exhibit A hereto
shall constitute, and are hereby expressly made, a part of this Indenture and,
to the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.


 


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


 


So long as the Notes are
eligible for book-entry settlement with the Depositary, or unless otherwise
required by law, or otherwise contemplated by Section 2.05(b), all of the
Notes will be represented by one or more Notes in global form registered in the
name of the Depositary or the nominee of the Depositary (a “ Global Note ”). The transfer and exchange
of beneficial interests in any such Global Note shall be effected through the
Depositary in accordance with this Indenture and the applicable procedures of
the Depositary. Except as provided in Section 2.05(b), beneficial owners
of a Global Note shall not be entitled to have certificates registered in their
names, will not receive or be entitled to receive physical delivery of
certificates in definitive form and will not be considered holders of such
Global Note.


 


12

















 


Any Global Note shall
represent such of the outstanding Notes as shall be specified therein and shall
provide that it shall represent the aggregate amount of outstanding Notes from
time to time endorsed thereon and that the aggregate amount of outstanding
Notes represented thereby may from time to time be increased or reduced to
reflect redemptions, repurchases, conversions, transfers or exchanges permitted
hereby. Any endorsement of a Global Note to reflect the amount of any increase
or decrease in the amount of outstanding Notes represented thereby shall be
made by the Trustee or the Custodian, at the direction of the Trustee, in such
manner and upon instructions given by the holder of such Notes in accordance
with this Indenture. Payment of principal of, interest on and premium, if any,
on any Global Note shall be made to the holder of such Note.


 


Section 2.03 . Date and Denomination of Notes ; Payments of Interest . The Notes shall be
issuable in registered form without coupons in denominations of $1,000
principal amount and integral multiples thereof. Each Note shall be dated the
date of its authentication and shall bear interest from the date specified on
the face of the form of Note attached as Exhibit A hereto. Interest on the
Notes shall be computed on the basis of a 360-day year comprised of twelve
30-day months.


 


The Person in whose name any
Note (or its Predecessor Note) is registered on the Note Register at 5:00 p.m.,
New York City time, on any Record Date with respect to any interest payment
date shall be entitled to receive the interest payable on such interest payment
date, except that the interest payable upon maturity, redemption or repurchase
following a Fundamental Change will be payable to the Person to whom principal
is payable upon maturity or pursuant to such redemption or repurchase following
a Fundamental Change (unless the redemption date or the Fundamental Change
Repurchase Date, as the case may be, is after a Record Date and on or prior to
the corresponding interest payment date, in which case the semi-annual payment
of interest becoming due on such interest payment date shall be payable to the
holder of such Note registered as such on the applicable Record Date).
Notwithstanding the foregoing, any Note or portion thereof surrendered for
conversion during the period from 5:00 p.m., New York City time, on the
Record Date for any interest payment date to 5:00 p.m., New York City
time, on the Business Day preceding the applicable interest payment date shall
be accompanied by payment, in immediately available funds or other funds
acceptable to the Company, of an amount equal to the interest otherwise payable
on such interest payment date on the principal amount being converted; provided that no such payment need be made
(1) if a holder converts its Notes in connection with a redemption and the
Company has specified a redemption date that is after a Record Date and on or
prior to the next interest payment date, (2) if a holder converts its
Notes in connection with a Fundamental Change and the Company has specified a
Fundamental Change Repurchase Date that is after a Record Date and on or prior
to the next interest payment date or (3) to the extent of any overdue
interest, if any exists at the time of conversion with respect to such Note.
Interest shall be payable at the office of the Company maintained by the
Company for such purposes in the Borough of Manhattan, The City of New York,
which


 


13

















 


shall initially be an office
or agency of the Trustee. The Company shall pay interest (i) on any Notes
in certificated form by check mailed to the address of the Person entitled
thereto as it appears in the Note Register or (ii) on any Global Note by
wire transfer of immediately available funds to the account of the Depositary
or its nominee. If a payment date is not a Business Day, payment shall be made
on the next succeeding Business Day, and no additional interest shall accrue
thereon. The term “ Record Date ”
with respect to any interest payment date shall mean the December 15 or June 15
preceding the applicable January 1 or July 1 interest payment date,
respectively.


 


Any interest on any Note
which is payable, but is not punctually paid or duly provided for, on any January 1
or July 1 (herein called “ Defaulted
Interest ”) shall forthwith cease to be payable to the Noteholder
registered as such on the relevant Record Date, and such Defaulted Interest
shall be paid by the Company, at its election in each case, as provided in
clause (1) or (2) below:


 


(1) The Company may
elect to make payment of any Defaulted Interest to the Persons in whose names
the Notes (or their respective Predecessor Notes) are registered at 5:00 p.m.,
New York City time, on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Note and the date of the proposed payment (which shall be not
less than twenty-five calendar days after the receipt by the Trustee of such
notice, unless the Trustee shall consent to an earlier date), and at the same
time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date for the
payment of such Defaulted Interest which shall be not more than fifteen
calendar days and not less than ten calendar days prior to the date of the
proposed payment, and not less than ten calendar days after the receipt by the
Trustee of the notice of the proposed payment (unless, the Trustee shall
consent to an earlier date). The Trustee shall promptly notify the Company of
such special record date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be mailed, first-class postage prepaid, to each
holder at his address as it appears in the Note Register, not less than ten
calendar days prior to such special record date (unless, the Trustee shall
consent to an earlier date). Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Notes (or
their respective Predecessor Notes) are registered at 5:00 p.m., New York
City time, on such special record date and shall no longer be payable pursuant
to the following clause (2) of this Section 2.03.


 


14

















 


(2) The Company may
make payment of any Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any securities exchange or automated
quotation system on which the Notes may be listed or designated for issuance,
and upon such notice as may be required by such exchange or automated quotation
system, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.


 


Section 2.04 . Execution of Notes . The Notes shall be
signed in the name and on behalf of the Company by the manual or facsimile
signature of an Officer. Only such Notes as shall bear thereon a certificate of
authentication substantially in the form set forth on the form of Note attached
as Exhibit A hereto, manually executed by the Trustee (or an
authenticating agent appointed by the Trustee as provided by Section 16.11),
shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose. Such certificate by the Trustee (or such an authenticating
agent) upon any Note executed by the Company shall be conclusive evidence that
the Note so authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.


 


In case any officer of the
Company who shall have signed any of the Notes shall cease to be such officer
before the Notes so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Notes nevertheless may be
authenticated and delivered or disposed of as though the person who signed such
Notes had not ceased to be such officer of the Company, and any Note may be
signed on behalf of the Company by such persons as, at the actual date of the
execution of such Note, shall be the proper officers of the Company, although
at the date of the execution of this Indenture any such person was not such an
officer.


 


Section 2.05 . Exchange and Registration of Transfer of Notes
; Restrictions on Transfer . (a) The
Company shall cause to be kept at the Corporate Trust Office a register (the
register maintained in such office and in any other office or agency of the
Company designated pursuant to Section 6.02 being herein sometimes
collectively referred to as the “ Note
Register ”) in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Notes and of
transfers of Notes. The Note Register shall be in written form or in any form
capable of being converted into written form within a reasonably prompt period
of time. The Trustee is hereby appointed “ Note
Registrar ” for the purpose of registering Notes and transfers of
Notes as herein provided. The Company may appoint one or more co-registrars in
accordance with Section 6.02.


 


Upon surrender for
registration of transfer of any Note to the Note Registrar or any co-registrar,
and satisfaction of the requirements for such transfer set forth in this Section 2.05,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Notes of
any


 


15

















 


authorized denominations and
of a like aggregate principal amount and bearing such restrictive legends as
may be required by this Indenture.


 


Notes may be exchanged for
other Notes of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at any such office or
agency maintained by the Company pursuant to Section 6.02. Whenever any
Notes are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Notes which the Noteholder making
the exchange is entitled to receive bearing registration numbers not
contemporaneously outstanding.


 


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


 


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


 


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


 


Neither the Company nor the
Trustee nor any Note Registrar shall be required to exchange or register a
transfer of (a) any Notes for a period of fifteen calendar days next
preceding any selection of Notes to be redeemed, (b) any Notes or portions
thereof called for redemption pursuant to Section 3.02, (c) any Notes
or portions thereof surrendered for conversion pursuant to Article 15, (d) any
Notes or portions thereof tendered for repurchase (and not withdrawn) pursuant
to Section 3.05 or (e) any Notes or portions thereof tendered for
repurchase (and not withdrawn) pursuant to Section 3.06.


 


(b) The following
provisions shall apply only to Global Notes:


 


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


 


(ii) Notwithstanding
any other provision in this Indenture, no Global Note may be exchanged in whole
or in part for Notes registered, and no transfer of a Global Note in whole or
in part may be registered, in the name of any Person other than the Depositary
or a nominee thereof unless (1) the Depositary (x) has


 


16

















 


notified the Company that it
is unwilling or unable to continue as Depositary for such Global Note or (y) has
ceased to be a clearing agency registered under the Exchange Act, and a
successor depositary has not been appointed by the Company within ninety
calendar days, (2) an Event of Default has occurred and is continuing or (3) the
Company, in its sole discretion, notifies the Trustee in writing that it no
longer wishes to have all the Notes represented by Global Notes. Any Global
Note exchanged pursuant to clause (A) or (B) above shall be so
exchanged in whole and not in part and any Global Note exchanged pursuant to
clause (C) above may be exchanged in whole or from time to time in part as
directed by the Company. Any Note issued in exchange for a Global Note or any
portion thereof shall be a Global Note; provided
that any such Note so issued that is registered in the name of a Person other
than the Depositary or a nominee thereof shall not be a Global Note.


 


(iii) Securities
issued in exchange for a Global Note or any portion thereof pursuant to clause (ii) above
shall be issued in definitive, fully registered form, without interest coupons,
shall have an aggregate principal amount equal to that of such Global Note or
portion thereof to be so exchanged, shall be registered in such names and be in
such authorized denominations as the Depositary shall designate and shall bear
any legends required hereunder. Any Global Note to be exchanged in whole shall
be surrendered by the Depositary to the Trustee, as Note Registrar. With regard
to any Global Note to be exchanged in part, either such Global Note shall be so
surrendered for exchange or, if the Trustee is acting as Custodian for the
Depositary or its nominee with respect to such Global Note, the principal
amount thereof shall be reduced, by an amount equal to the portion thereof to
be so exchanged, by means of an appropriate adjustment made on the records of
the Trustee. Upon any such surrender or adjustment, the Trustee shall
authenticate and make available for delivery the Note issuable on such exchange
to or upon the written order of the Depositary or an authorized representative
thereof.


 


(iv) In
the event of the occurrence of any of the events specified in clause (ii) above,
the Company will promptly make available to the Trustee a reasonable supply of
certificated Notes in definitive, fully registered form, without interest
coupons.


 


(v) Neither
any members of, or participants in, the Depositary (“ Agent Members ”) nor any other Persons on
whose behalf Agent Members may act shall have any rights under this Indenture
with respect to any Global Note registered in the name of the Depositary or any
nominee thereof, and the Depositary or such nominee, as the case may be, may be
treated by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner and holder of such Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the


 


17

















 


Trustee from giving effect
to any written certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as between the
Depositary, its Agent Members and any other Person on whose behalf an Agent
Member may act, the operation of customary practices of such Persons governing
the exercise of the rights of a holder of any Note.


 


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


 


(c) Every Note (and all
securities issued in exchange therefor or in substitution thereof) that bears
or is required under this Section 2.05(c) to bear the legend set
forth in this Section 2.05(c) (together with any Common Stock issued
upon conversion of the Notes and required to bear the legend set forth in Exhibit B,
collectively, the “ Restricted Securities
”) shall be subject to the restrictions on transfer set forth in this Section 2.05(c) (including
those set forth in the legend below and the legend set forth in Exhibit B)
unless such restrictions on transfer shall be waived by written consent of the
Company, and the holder of each such Restricted Security, by such Note holder’s
acceptance thereof, agrees to be bound by all such restrictions on transfer. As
used in this Section 2.05(c), the term “ transfer
” means any sale, pledge, loan, transfer or other disposition whatsoever of any
Restricted Security or any interest therein.


 


Until the expiration of the
holding period applicable to sales of Restricted Securities under Rule 144(k) under
the Securities Act (or any successor provision), any certificate evidencing
Restricted Security shall bear a legend in substantially the following form (or
as set forth in Exhibit B, in the case of Common Stock issued upon
conversion of the Notes), unless such Restricted Security 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
transfer) or sold pursuant to Rule 144 under the Securities Act or any
similar provision then in force, or unless otherwise agreed by the Company in
writing, with written notice thereof to the Trustee:


 


THIS SECURITY AND THE SHARES
OF ADVANCED MEDICAL OPTICS, INC. (THE “COMPANY”) COMMON STOCK (“COMMON STOCK”)
ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR


 


18

















 


ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.


 


THE HOLDER OF THIS SECURITY,
BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (2) AGREES
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE
RESTRICTION TERMINATION DATE”) THAT IS TWO YEARS AFTER THE LAST ORIGINAL ISSUE
DATE HEREOF ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR
SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHTS OF THE COMPANY AND
THE TRUSTEE PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES
WHERE REGISTRATION OR TRANSFER OF THIS SECURITY IS REQUIRED, A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED AFTER
THE RESALE RESTRICTION TERMINATION DATE. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING RESTRICTION. IN ANY CASE, THE HOLDER HEREOF WILL
NOT, DIRECTLY OR INDIRECTLY ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO
THIS SECURITY OR THE COMMON STOCK EXCEPT AS PERMITTED UNDER THE SECURITIES ACT.


 


19

















 


IN CONNECTION WITH ANY
TRANSFER OF THE SECURITY EVIDENCED HEREBY WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF SUCH SECURITY (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(D) ABOVE),
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER IS
PURSUANT TO CLAUSE 2(C) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY OR THE
TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
UPON THE EARLIER OF THE TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO
CLAUSE 2(C) OR 2(D) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE
ORIGINAL ISSUANCE OF THE SECURITY EVIDENCED HEREBY.


 


Any Notes that are
Restricted Securities and as to which such restrictions on transfer shall have
expired in accordance with their terms or as to conditions for removal of the
foregoing legend set forth therein have been satisfied may, upon surrender of
such Note for exchange to the Note Registrar in accordance with the provisions
of this Section 2.05, be exchanged for a new Note or Notes, of like tenor
and aggregate principal amount, which shall not bear the restrictive legend
required by this Section 2.05(c). If such Restricted Security surrendered
for exchange is represented by a Global Note bearing the legend set forth in
this Section 2.05(c), the principal amount of the legended Global Note
shall be reduced by the appropriate principal amount and the principal amount
of a Global Note without the legend set forth in this Section 2.05(c) shall
be increased by an equal principal amount. If a Global Note without the legend
set forth in this Section 2.05(c) is not then outstanding, the
Company shall execute and the Trustee shall authenticate and deliver an
unlegended Global Note to the Depositary.


 


(d) Any Restricted
Securities, prior to the expiration of the holding period applicable to sales thereof
under Rule 144(k) under the Securities Act (or any successor
provision), purchased or owned by the Company or any Affiliate thereof may not
be resold by the Company or such Affiliate unless registered under the
Securities Act or resold pursuant to an exemption from the registration
requirements of the Securities Act in a transaction which results in such Notes
or Common Stock, as the case may be, no longer being “ restricted securities ” (as defined under Rule 144).


 


(e) The Trustee shall
have no responsibility or obligation to any Agent Members or any other Person
with respect to the accuracy of the books or records, or the acts or omissions,
of the Depositary or its nominee or of any participant or member


 


20

















 


thereof, with respect to any
ownership interest in the Notes or with respect to the delivery to any Agent
Member or other Person (other than the Depositary) of any notice (including any
notice of redemption) or the payment of any amount, under or with respect to
such Notes. All notices and communications to be given to the Noteholders and
all payments to be made to Noteholders under the Notes shall be given or made
only to or upon the order of the registered Noteholders (which shall be the
Depositary or its nominee in the case of a Global Note). The rights of
beneficial owners in any Global Note shall be exercised only through the
Depositary subject to the customary procedures of the Depository. The Trustee
may rely and shall be fully protected in relying upon information furnished by
the Depositary with respect to its Agent Members.


 


The Trustee shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Note (including any
transfers between or among Agent Members in any Global Indenture) other than to
require delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required by, the
terms of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.


 


Section 2.06 . Mutilated, Destroyed, Lost or Stolen Notes
.. In case any Note shall become mutilated or be destroyed, lost or stolen, the
Company in its discretion may execute, and upon its written request the Trustee
or an authenticating agent appointed by the Trustee shall authenticate and make
available for delivery, a new Note, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Note, or in lieu of
and in substitution for the Note so destroyed, lost or stolen. In every case,
the applicant for a substituted Note shall furnish to the Company, to the
Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any
loss, liability, cost or expense caused by or connected with such substitution,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent evidence to their satisfaction of the destruction, loss or
theft of such Note and of the ownership thereof.


 


Following receipt by the
Trustee or such authenticating agent, as the case may be, of satisfactory
security or indemnity and evidence, as described in the preceding paragraph,
the Trustee or such authenticating agent may authenticate any such substituted
Note and make available for delivery such Note. Upon the issuance of any
substituted Note, the Company may require the payment by the holder of a sum
sufficient to cover any tax, assessment or other governmental charge that may be
imposed in relation thereto and any other expenses connected therewith. In case
any Note which has matured or is about to mature or has been called for
redemption or has been properly tendered for repurchase on a Fundamental Change
Repurchase Date (and not withdrawn) or has been tendered for repurchase on a
Repurchase Date (and not withdrawn), as the case may be,


 


21

















 


or is to be converted
pursuant to this Indenture, shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Note, pay or authorize
the payment of or convert or authorize the conversion of the same (without
surrender thereof except in the case of a mutilated Note), as the case may be,
if the applicant for such payment or conversion shall furnish to the Company,
to the Trustee and, if applicable, to such authenticating agent such security
or indemnity as may be required by them to save each of them harmless for any
loss, liability, cost or expense caused by or in connection with such
substitution, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company, the Trustee and, if applicable, any Paying
Agent or conversion agent evidence to their satisfaction of the destruction,
loss or theft of such Note and of the ownership thereof.


 


Every substitute Note issued
pursuant to the provisions of this Section 2.06 by virtue of the fact that
any Note is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be found at any time, and shall be entitled to all the
benefits of (but shall be subject to all the limitations set forth in) this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder. To the extent permitted by law, all Notes shall be held and owned
upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment or conversion or redemption or repurchase
of mutilated, destroyed, lost or stolen Notes and shall preclude any and all
other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment or
conversion or redemption or repurchase of negotiable instruments or other
securities without their surrender.


 


Section 2.07 . Temporary Notes . Pending the
preparation of Notes in certificated form, the Company may execute and the
Trustee or an authenticating agent appointed by the Trustee shall, upon the
written request of the Company, authenticate and deliver temporary Notes
(printed or lithographed). Temporary Notes shall be issuable in any authorized
denomination, and substantially in the form of the Notes in certificated form,
but with such omissions, insertions and variations as may be appropriate for
temporary Notes, all as may be determined by the Company. Every such temporary
Note shall be executed by the Company and authenticated by the Trustee or such
authenticating agent upon the same conditions and in substantially the same
manner, and with the same effect, as the Notes in certificated form. Without
unreasonable delay, the Company will execute and deliver to the Trustee or such
authenticating agent Notes in certificated form and thereupon any or all
temporary Notes may be surrendered in exchange therefor, at each office or
agency maintained by the Company pursuant to Section 6.02 and the Trustee
or such authenticating agent shall authenticate and make available for delivery
in exchange for such temporary Notes an equal aggregate principal amount of
Notes in certificated form. Such exchange shall be made by the Company at its
own expense and without any charge therefor. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits and subject to the
same limitations under this Indenture as Notes in certificated form
authenticated and delivered hereunder.


 


22
















 


Section 2.08 .
Cancellation of Notes . All Notes surrendered for the purpose of
payment, redemption, repurchase, conversion, exchange or registration of
transfer shall, if surrendered to the Company or any paying agent to whom Notes
may be presented for payment (the “ Paying
Agent ”) or any conversion agent, which shall initially be the
Trustee, or any Note Registrar, be surrendered to the Trustee and promptly
canceled by it or, if surrendered to the Trustee, shall be promptly canceled by
it and no Notes shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Indenture. The Trustee shall dispose of such
canceled Notes in accordance with its customary procedures. If the Company
shall acquire any of the Notes, such acquisition shall not operate as a
redemption, repurchase or satisfaction of the indebtedness represented by such
Notes unless and until the same are delivered to the Trustee for cancellation.


 


Section 2.09 .
CUSIP Numbers . The Company in issuing the Notes may use “ CUSIP ” numbers (if then generally in use),
and, if so, the Trustee shall use “ CUSIP
” numbers in notices of redemption as a convenience to Noteholders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the “ CUSIP ” numbers.


 


ARTICLE
3


REDEMPTION AND REPURCHASE OF NOTES


 


Section 3.01 .
Optional Redemption of Notes . At any time on or after July 6,
2011 and prior to maturity, the Notes may be redeemed at the option of the
Company, in whole or in part, upon notice as set forth in Section 3.02, in
cash at a redemption price equal to the principal amount of the Notes, plus
accrued and unpaid interest to, but excluding, the date fixed for redemption.


 


Section 3.02 .
Notice of Optional Redemption ; Selection
of Notes . In case the Company shall desire to exercise the right to
redeem all or, as the case may be, any part of the Notes pursuant to Section 3.01,
it shall fix a date for redemption and it or, at its written request received
by the Trustee not fewer than five Business Days prior (or such shorter period
of time as may be acceptable to the Trustee) to the date the notice of
redemption is to be mailed, the Trustee in the name of and at the expense of
the Company, shall mail or cause to be mailed a notice of such redemption not
fewer than thirty calendar days nor more than sixty calendar days prior to the
redemption date to each holder of Notes so to be redeemed in whole or in part
at its last address as the same appears on the Note Register; provided that if the Company makes such
request of the Trustee, it shall, together with such request, also give written
notice of the redemption date to the Trustee, provided that the text of the
notice shall be prepared by the Company.


 


23

















 


Such mailing shall be by first class mail. The notice,
if mailed in the manner herein provided, shall be conclusively presumed to have
been duly given, whether or not the holder receives such notice. In any case,
failure to give such notice by mail or any defect in the notice to the holder
of any Note designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Note.
Concurrently with the mailing of any such notice of redemption, the Company
shall issue a press release announcing such redemption, the form and content of
which press release shall be determined by the Company in its sole discretion.
The failure to issue any such press release or any defect therein shall not
affect the validity of the redemption notice or any of the proceedings for the
redemption of any Note called for redemption.


 


Each such notice of redemption shall specify: (i) the
aggregate principal amount of Notes to be redeemed, (ii) the CUSIP number
or numbers of the Notes being redeemed, (iii) the date fixed for
redemption (which shall be a Business Day), (iv) the redemption price at
which Notes are to be redeemed, (v) the place or places of payment and
that payment will be made upon presentation and surrender of such Notes, (iv) that
interest accrued and unpaid to, but excluding, the date fixed for redemption
will be paid as specified in said notice, and that on and after said date
interest thereon or on the portion thereof to be redeemed will cease to accrue,
(vii) that the holder has a right to convert the Notes called for
redemption, (viii) the Conversion Rate on the date of such notice and (ix) the
time and date on which the right to convert such Notes or portions thereof
pursuant to this Indenture will expire. If fewer than all the Notes are to be
redeemed, the notice of redemption shall identify the Notes to be redeemed
(including CUSIP numbers, if any). In case any Note is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that, on and after the redemption date,
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion thereof will be issued.


 


Whenever any Notes are to be redeemed, the Company
will give the Trustee written notice of the redemption date, together with an
Officers’ Certificate as to the aggregate principal amount of Notes to be
redeemed not fewer than thirty calendar days (or such shorter period of time as
may be acceptable to the Trustee) prior to the redemption date.


 


On or prior to the redemption date specified in the
notice of redemption given as provided in this Section 3.02, the Company
will deposit with the Paying Agent (or, if the Company is acting as its own
Paying Agent, set aside, segregate and hold in trust as provided in Section 6.04)
an amount of money in immediately available funds sufficient to redeem on the
redemption date all the Notes (or portions thereof) so called for redemption
(other than those theretofore surrendered for conversion) at the appropriate
redemption price, together with accrued interest to, but excluding, the
redemption date; provided that if
such payment is made on the redemption date, it must be received by the Paying
Agent, by 11:00 a.m., New York City time, on such date. The Company shall
be entitled to retain any interest, yield or gain on amounts deposited with the
Paying Agent


 


24

















 


pursuant to this Section 3.02 in excess of
amounts required hereunder to pay the redemption price and accrued interest to,
but excluding, the redemption date. If any Note called for redemption is
converted pursuant hereto prior to such redemption date, any money deposited
with the Paying Agent or so segregated and held in trust for the redemption of
such Note shall be paid to the Company or, if then held by the Company, shall
be discharged from such trust.


 


If less than all of the outstanding Notes are to be
redeemed, the Trustee shall select the Notes or portions thereof of the Global
Note or the Notes in certificated form to be redeemed (in principal amounts of
$1,000 or multiples thereof) by lot, on a pro rata basis or by another method
the Trustee deems fair and appropriate. If any Note selected for redemption is
submitted for conversion in part after such selection, the portion of such Note
submitted for conversion shall be deemed (so far as may be possible) to be the
portion to be selected for redemption. The Notes (or portions thereof) so
selected for redemption shall be deemed duly selected for redemption for all
purposes hereof, notwithstanding that any such Note is submitted for conversion
in part before the mailing of the notice of redemption.


 


Upon any redemption of less than all of the
outstanding Notes, the Company and the Trustee may (but need not), solely for
purposes of determining the pro rata allocation among such Notes that are
unconverted and outstanding at the time of redemption, treat as outstanding any
Notes surrendered for conversion during the period of fifteen calendar days
preceding the mailing of a notice of redemption and may (but need not) treat as
outstanding any Note authenticated and delivered during such period in exchange
for the unconverted portion of any Note converted in part during such period.


 


Section 3.03 .
Payment of Notes Called for Redemption by the Company . If notice of
redemption has been given as provided in Section 3.02, the Notes or
portion of Notes with respect to which such notice has been given shall, unless
converted pursuant to the terms hereof, become due and payable on the date
fixed for redemption and at the place or places stated in such notice at the redemption
price, plus interest accrued to, but excluding, the redemption date, and unless
the Company shall default in the payment of such Notes at the redemption price,
plus interest, if any, accrued to, but excluding, such date, interest on the
Notes or portion of Notes so called for redemption shall cease to accrue on and
after such date and, after 5:00 p.m., New York City time, on the Trading
Day immediately preceding the redemption date (unless the Company shall default
in the payment of such Notes at the redemption price, together with interest
accrued to such date) such Notes shall cease to be convertible pursuant to this
Indenture and, except as provided in Section 9.05 and Section 13.02,
to be entitled to any benefit or security under this Indenture, and the holders
thereof shall have no right in respect of such Notes except the right to
receive the redemption price thereof plus accrued and unpaid interest to, but
excluding, the redemption date. On presentation and surrender of such Notes at
a place of payment in said notice specified, the said Notes or the specified
portions thereof shall be paid and redeemed by the Company at the redemption
price, together with interest


 


25

















 


accrued thereon to, but excluding, the redemption
date; provided that if the
applicable redemption date is after the applicable Record Date and on or before
an interest payment date, the interest payable on such interest payment date
shall be paid on such interest payment date to the holders of record of such
Notes on the applicable Record Date instead of the holders surrendering such
Notes for redemption on such date.


 


Upon presentation of any Note redeemed in part only,
the Company shall execute and the Trustee shall authenticate and make available
for delivery to the holder thereof, at the expense of the Company, a new Note
or Notes, of authorized denominations, in principal amount equal to the
unredeemed portion of the Notes so presented.


 


Notwithstanding the foregoing, the Trustee shall not
redeem any Notes or mail any notice of redemption during the continuance of a
default in payment of interest on the Notes. If any Note called for redemption
shall not be so paid upon surrender thereof for redemption on the redemption
date, as provided in this Section 3.03, the principal shall, until paid or
duly provided for, bear interest from and including the redemption date at a
rate equal to 1% per annum above the rate borne by the Notes and such Note
shall remain convertible pursuant to this Indenture until the redemption price
and interest shall have been paid or duly provided for.


 


Notes and portions of Notes that are to be redeemed
pursuant to this Article 3 shall be convertible by the Holder thereof
until 5:00 p.m., New York City Time, on the Trading Day preceding the
Redemption Date.


 


Section 3.04 .
Conversion Arrangement on Call for Redemption . In connection with
any redemption of Notes, the Company may arrange for the purchase and
conversion of any Notes by an agreement with one or more investment banks or
other purchasers to purchase such Notes by paying to the Trustee in trust for
the Noteholders, on or before the date fixed for redemption, an amount not less
than the applicable redemption price, together with interest accrued to, but
excluding, the date fixed for redemption, of such Notes. Notwithstanding
anything to the contrary contained in this Article 3, the obligation of
the Company to pay the redemption price of such Notes, together with interest
accrued to, but excluding, the date fixed for redemption, 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, a copy of which will be filed
with the Trustee prior to the date fixed for redemption, any Notes 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 (notwithstanding anything to the contrary
contained in Article 15) surrendered by such purchasers for conversion,
all as of immediately prior to 5:00 p.m., New York City time, on the date
fixed for redemption (and the right to convert any such Notes shall be extended
through such time), subject to payment of the above amount as aforesaid. At the
direction of the Company, the Trustee shall hold and dispose of any such amount
paid to it in the same manner as it would monies deposited with it by the
Company for the


 


26

















 


redemption of Notes. Without the Trustee’s prior
written consent, no arrangement between the Company and such purchasers for the
purchase and conversion of any Notes shall increase or otherwise affect any of
the powers, duties, responsibilities or obligations of the Trustee as set forth
in this Indenture.


 


Section 3.05 .
Repurchase at Option of Holders Upon a Fundamental Change . (a) If
there shall occur a Fundamental Change at any time prior to maturity of the
Notes, then each Noteholder shall have the right, at such holder’s option, to
require the Company to repurchase all of such holder’s Notes, or any portion
thereof that is a multiple of $1,000 principal amount, in cash, on a date (the “
Fundamental Change Repurchase Date
”) specified by the Company, that is not less than 20 Business Days nor more
than 35 Business Days after the date of the Company Repurchase Notice related
to such Fundamental Change (or, if such day is not a Business Day, the next
succeeding Business Day) at a repurchase price equal to 100% of the principal
amount of the Notes being repurchased, plus accrued and unpaid interest to, but
excluding, the Fundamental Change Repurchase Date; provided that if such
Fundamental Change Repurchase Date falls after a Record Date and on or prior to
the corresponding interest payment date, then the interest payable on such
interest payment date shall be paid to the holders of record of the Notes on
the applicable Record Date instead of the holders surrendering the Notes for
repurchase on such date.


 


(b) On or before the tenth Business Day after the
occurrence of a Fundamental Change, the Company shall mail or cause to be
mailed to all holders of record on the date of the Fundamental Change (and to
beneficial owners as required by applicable law) a Company Repurchase Notice as
set forth in Section 3.07 with respect to such Fundamental Change. The
Company shall also deliver a copy of the Company Repurchase Notice to the
Trustee and the Paying Agent at such time as it is mailed to Noteholders. Concurrently
with the mailing of such Company Repurchase Notice, the Company shall issue a
press release announcing such Fundamental Change referred to in the Company
Repurchase Notice, the form and content of which press release shall be
determined by the Company in its sole discretion. The failure to issue any such
press release or any defect therein shall not affect the validity of the
Company Repurchase Notice or any proceedings for the repurchase of any Note
which any Noteholder may elect to have the Company redeem as provided in this Section 3.05.


 


No failure of the Company to give the foregoing
notices and no defect therein shall limit the Noteholders’ repurchase rights or
affect the validity of the proceedings for the repurchase of the Notes pursuant
to this Section 3.05.


 


(c) For a Note to be so repurchased at the option
of the holder, the holder must deliver to the Paying Agent, prior to 5:00 p.m.,
New York City time, on the Business Day immediately preceding the Fundamental
Change Repurchase Date, (i) a written notice of repurchase (the “ Repurchase Notice ”) in the form set forth
on the reverse of the Note duly completed (if the Note is certificated) or
stating the following (if the Note is


 


27

















 


represented by a Global Note): (A) the
certificate number of the Note which the holder will deliver to be repurchased
or the appropriate Depositary procedures, (B) the portion of the principal
amount of the Note which the holder will deliver to be repurchased, which
portion must be in principal amounts of $1,000 or an integral multiple of
$1,000 and (C) that such Note shall be repurchased as of the Fundamental
Change Repurchase Date pursuant to the terms and conditions specified in the
Note and in this Indenture; together with (ii) such Notes duly endorsed
for transfer (if the Note if certificated) or book entry transfer of such Note
(if such Note is represented by a Global Note). The delivery of such Note to
the Paying Agent with, or at any time after delivery of, the Repurchase Notice
(together with all necessary endorsements) at the office of the Paying Agent
shall be a condition to the receipt by the holder of the repurchase price
therefore; provided , however , that such repurchase price shall
be so paid pursuant to this Section 3.05 only if the Notes so delivered to
the Paying Agent shall conform in all respects to the description thereof in
the Repurchase Notice. All questions as to the validity, eligibility (including
time of receipt) and acceptance of any Note for repurchase shall be determined
by the Company, whose determination shall be final and binding absent manifest
error.


 


(d) The Company shall repurchase from the holder
thereof, pursuant to this Section 3.05, a portion of a Note, if the
principal amount of such portion is $1,000 or a whole multiple of $1,000.
Provisions of this Indenture that apply to the repurchase of all of a Note also
apply to the repurchase of such portion of such Note.


 


(e) The Paying Agent shall promptly notify the
Company of the receipt by it of any Repurchase Notice or written notice of
withdrawal thereof.


 


Any repurchase by the Company contemplated pursuant to
the provisions of this Section 3.05 shall be consummated by the delivery
of the consideration to be received by the holder promptly following the later
of the Fundamental Change Repurchase Date and the time of the book-entry
transfer or delivery of the Note. Payment of the repurchase price for a Note
for which a Repurchase Notice has been delivered and not withdrawn is conditioned
upon book-entry transfer or delivery of the Notes, together with necessary
endorsements, to the Paying Agent.


 


Section 3.06. Repurchase
of Notes by the Company at Option of the Holder  . (a) Each Noteholder shall have the
right, at such holder’s option, to require the Company to repurchase all of
such holder’s Notes, or any portion thereof that is a multiple of $1,000
principal amount, in cash, on July 1, 2011, July 1, 2016, and July 1,
2021 (each, a “ Repurchase Date ”),
at a repurchase price of 100% of the principal amount of the Notes being
repurchased, plus accrued and unpaid interest to, but excluding, the Repurchase
Date, subject to the provisions of Section 3.07 and subject to the
satisfaction by the holder of the requirements set forth in Section 3.06(c).
Payment of interest will be paid to the holder of record as of 5:00 p.m.,
New York City time, on the applicable Record Date.


 


28

















 


(b) On or before the twentieth Business Day prior
to each Repurchase Date, the Company shall mail or cause to be mailed to all
holders of record on such date (and to beneficial owners as required by
applicable law) a Company Repurchase Notice as set forth in Section 3.07.
The Company shall also deliver a copy of the Company Repurchase Notice to the
Trustee and the Paying Agent at such time as it is mailed to Noteholders.


 


No failure of the Company to give the foregoing
notices and no defect therein shall limit the Noteholders’ repurchase rights or
affect the validity of the proceedings for the repurchase of the Notes pursuant
to this Section 3.06.


 


(c) For a Note to be so repurchased at the option
of the holder, the holder must deliver to the Paying Agent, during the period
beginning at 9:00 a.m., New York City Time, on the date that is 20
Business Days prior to the applicable Repurchase Date and ending at 5:00 p.m.,
New York City Time, on the Business Day immediately preceding the applicable
Repurchase Date, (i) a Repurchase Notice in the form set forth on the
reverse of the Note duly completed (if the Note is certificated) or stating the
following (if the Note is represented by a Global Note): (A) the
certificate number of the Note which the holder will deliver to be repurchased
or the appropriate Depositary procedures, (B) the portion of the principal
amount of the Note which the holder will deliver to be repurchased, which
portion must be in principal amounts of $1,000 or an integral multiple of
$1,000 and (C) that such Note shall be repurchased as of the Repurchase
Date pursuant to the terms and conditions specified in the Note and in this
Indenture; together with (ii) such Notes duly endorsed for transfer (if
the Note if certificated) or book entry transfer of such Note (if such Note is
represented by a Global Note). The delivery of such Note to the Paying Agent
with, or at any time after delivery of, the Repurchase Notice (together with
all necessary endorsements) at the office of the Paying Agent shall be a
condition to the receipt by the holder of the repurchase price therefore; provided , however , that such repurchase price shall be so paid
pursuant to this Section 3.06 only if the Notes so delivered to the Paying
Agent shall conform in all respects to the description thereof in the
Repurchase Notice. All questions as to the validity, eligibility (including
time of receipt) and acceptance of any Note for repurchase shall be determined
by the Company, whose determination shall be final and binding absent manifest
error.


 


(d) The Company shall repurchase from the holder
thereof, pursuant to this Section 3.06, a portion of a Note, if the
principal amount of such portion is $1,000 or a whole multiple of $1,000.
Provisions of this Indenture that apply to the repurchase of all of a Note also
apply to the repurchase of such portion of such Note.


 


(e) The Paying Agent shall promptly notify the
Company of the receipt by it of any Repurchase Notice or written notice of
withdrawal thereof.


 


Any repurchase by the Company contemplated pursuant to
the provisions of this Section 3.06 shall be consummated by the delivery
of the consideration to be received by the holder promptly following the later
of the Repurchase Date and the time of the


 


29

















 


book-entry transfer or delivery of the Note. Payment
of the repurchase price for a Note for which a Repurchase Notice has been
delivered and not withdrawn is conditioned upon book-entry transfer or delivery
of the Notes, together with necessary endorsements, to the Paying Agent.


 


Section 3.07. Company
Repurchase Notice .


 


(a) The Company Repurchase Notice, as provided in
Section 3.07(h), shall be given to holders in the event of a Fundamental
Change, on or before the tenth Business Day after the occurrence of such a
Fundamental Change as provided in Section 3.05(b) or not less than 20
Business Days prior to the Repurchase Date as provided in Section 3.05(b) (in
either case, the “ Company Repurchase Notice
Date ”).


 


(b) In connection with any repurchase of Notes,
the Company shall, in the case of a Fundamental Change, on or before the tenth
Business Day after the Effective Date of such Fundamental Change or no less
than 20 Business Days prior to each Repurchase Date, give notice to holders
(with a copy to the Trustee) setting forth information specified in this Section (in
either case, the “ Company Repurchase Notice
”).


 


Each Company Repurchase Notice shall:


 


(1) state the
repurchase price and the Fundamental Change Repurchase Date or the Repurchase
Date to which the Company Repurchase Notice relates;


 


(2) state, if
applicable, the circumstances constituting the Fundamental Change;


 


(3) state that
holders must exercise their right to elect repurchase prior to 5:00 p.m.,
New York City time, on the Business Day immediately preceding the Fundamental
Change Repurchase Date or Repurchase Date, as the case may be;


 


(4) include a form
of Repurchase Notice;


 


(5) state the name
and address of the Paying Agent;


 


(6) state that Notes
must be surrendered to the Paying Agent to collect the repurchase price;


 


(7) state that a
holder may withdraw its Repurchase Notice at any time prior to 5:00 p.m.,
New York City time, on the Business Day immediately preceding the Fundamental
Change Repurchase Date or the Repurchase Date, as the case may be, by
delivering a valid written notice of withdrawal in accordance with Section 3.088;


 


30

















 


(8) if the Notes are
then convertible, state that Notes as to which a Repurchase Notice has been
given may be converted until 5:00 p.m., New York City Time on the Business
Day preceding the applicable repurchase date (unless the Company defaults in
the payment of the applicable repurchase price) and only if the Repurchase
Notice is withdrawn in accordance with the terms of this Indenture;


 


(9) state the amount
of interest accrued and unpaid per $1,000 principal amount of Notes to, but
excluding, the Fundamental Change Repurchase Date and Repurchase Date, as the
case may be; and


 


(10) state the CUSIP
number of the Notes.


 


A Company Repurchase Notice may be given by the
Company or, at the Company’s request, the Trustee shall give such Company
Repurchase Notice in the Company’s name and at the Company’s expense; provided, that the text of the Company
Repurchase Notice shall be prepared by the Company.


 


(c) The Company will, to the extent applicable,
comply with the provisions of Rule 13e-4 and Rule 14e-1 (or any
successor provision) under the Exchange Act that may be applicable at the time
of the repurchase of the Notes, file the related Schedule TO (or any successor
schedule, form or report) under the Exchange Act and comply with all other
federal and state securities laws in connection with the repurchase of the
Notes.


 


Section 3.08 .
Effect of Repurchase Notice; Withdrawal  . Upon receipt by the Paying Agent of the Repurchase Notice
specified in Section 3.05 or Section 3.06, the holder of the Note in
respect of which such Repurchase Notice was given shall (unless such Repurchase
Notice is validly withdrawn in accordance with the following paragraph)
thereafter be entitled to receive solely the repurchase price with respect to
such Note. Such repurchase price shall be paid to such holder, subject to
receipt of funds and/or Notes by the Paying Agent, promptly following the later
of (x) the Fundamental Change Repurchase Date or the Repurchase Date with
respect to such Note (provided the holder has satisfied the conditions in Section 3.05
or Section 3.06) and (y) the time of book-entry transfer or delivery
of such Note to the Paying Agent by the holder thereof in the manner required
by Section 3.05 or Section 3.06. Notes in respect of which a
Repurchase Notice has been given by the holder thereof may not be converted
pursuant to Article 15 hereof on or after the date of the delivery of such
Repurchase Notice unless such Repurchase Notice has first been validly
withdrawn.


 


A Repurchase Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Paying Agent in
accordance with the Repurchase Notice at any time prior to 5:00 p.m., New
York City time, on the Business Day immediately preceding the Fundamental
Change Repurchase Date or Repurchase Date, as the case may be, specifying:


 


(a) the certificate number, if any, of the Note
in respect of which such notice of withdrawal is being submitted, or the
appropriate Depositary information, in accordance with appropriate Depositary
procedures, if the Note in respect of which such notice of withdrawal is being
submitted is represented by a Global Note,


 


31
















 


(b) the principal amount of the Note with respect
to which such notice of withdrawal is being submitted, and


 


(c) the principal amount, if any, of such Note
which remains subject to the original Repurchase Notice and which has been or
will be delivered for repurchase by the Company.


 


If a Repurchase Notice is properly withdrawn, the
Company shall not be obligated to repurchase the Notes listed in such
Repurchase Notice.


 


Section 3.09. Deposit
of Repurchase Price  . (a) Prior
to 11:00 a.m., New York City Time, on the Fundamental Change Repurchase
Date or the Repurchase Date, the Company shall deposit with the Paying Agent
or, if the Company is acting as the Paying Agent, shall segregate and hold in
trust as provided in Section 6.04) an amount of cash (in immediately
available funds if deposited on the Fundamental Change Repurchase Date or the
Repurchase Date, as the case may be), sufficient to pay the aggregate
repurchase price of all the Notes or portions thereof that are to be
repurchased as of the Fundamental Change Repurchase Date or the Repurchase
Date, as the case may be.


 


(b) If on the Fundamental Change Repurchase Date
or the Repurchase Date the Paying Agent holds money sufficient to pay the
repurchase price of the Notes that holders have elected to require the Company
to repurchase in accordance with Section 3.05 or 3.06, as the case may be,
then, on the Fundamental Change Repurchase Date or the Repurchase Date, as the
case may be, such Notes will cease to be outstanding, interest will cease to
accrue and all other rights of the holders of such Notes will terminate, other
than the right to receive the repurchase price upon delivery or book-entry
transfer of the Note. This will be the case whether or not book-entry transfer
of the Note has been made or the Note has been delivered to the Paying Agent.


 


Section 3.10 .
Notes Repurchased in Part . Upon presentation of any Note
repurchased only in part, the Company shall execute and the Trustee shall
authenticate and make available for delivery to the holder thereof, at the
expense of the Company, a new Note or Notes, of any authorized denomination, in
aggregate principal amount equal to the unrepurchased portion of the Notes
presented.


 


Section 3.11 .
Repayment to the Company  .
The Paying Agent shall return to the Company any cash that remains unclaimed,
together with interest, if any, thereon, held by them for the payment of the
repurchase price; provided that
to the extent that the aggregate amount of cash deposited by the Company
pursuant to Section 3.099 exceeds the aggregate repurchase price of the
Notes or portions thereof which the


 


32

















 


Company is obligated to repurchase as of the
Fundamental Change Repurchase Date or the Repurchase Date, as the case may be,
then, unless otherwise agreed in writing with the Company, promptly after the
Business Day following the Fundamental Change Repurchase Date or the Repurchase
Date, as the case may be, the Trustee shall return any such excess to the
Company, together with interest, if any, thereon.


 


ARTICLE
4


SUBORDINATION OF NOTES


 


Section 4.01 .
Notes Subordinated To Senior Indebtedness  . The Company covenants and agrees, and the Trustee and each
holder of the Notes by the acceptance thereof likewise covenant and agree, that
all Notes shall be issued subject to the provisions of this Article 4; and
each person holding any Note, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that all payments of the
principal of, premium, if any, and interest on (and other obligations, if any,
with respect to) the Notes by the Company shall, to the extent and in the
manner set forth in this Article 4, be subordinated and junior in right of
payment to the prior payment in full in cash of all obligations arising under
Senior Indebtedness. The Notes will be contractually equal in right of payment
to the Company’s other existing and future senior subordinated indebtedness,
including the Company’s 31⁄2% Convertible Senior Subordinated Notes due April 15,
2023 and the Company’s 2.50% Convertible Senior Subordinated Notes due 2024.


 


Section 4.02 .
No Payment On Notes In Certain Circumstances


 


(a) No direct or indirect payment (other than in
Junior Securities) by or on behalf of the Company of principal of, premium, if
any, or interest on (and other obligations, if any, with respect to) the Notes,
whether pursuant to the terms of the Notes, upon acceleration, pursuant to an
offer to repurchase, redemption or otherwise, will be made, if, at the time of such
payment, there exists a default in the payment of all or any portion of the
obligations on any Designated Senior Indebtedness, whether at maturity, on
account of mandatory redemption or prepayment, acceleration or otherwise, and
such default shall not have been cured or waived in writing or the benefits of
this sentence waived in writing by or on behalf of the holders of such
Designated Senior Indebtedness. In addition, during the continuance of any
non-payment event of default with respect to any Designated Senior Indebtedness
pursuant to which the maturity thereof may be immediately accelerated by the
holder or holders of such Designated Senior Indebtedness or may be accelerated
by the holder or holders of such Designated Senior Indebtedness with the giving
of notice or the passage of time or both, and upon receipt by the Trustee of
written notice (a “ Payment Blockage Notice
”) from the holder or holders of such Designated Senior Indebtedness or the
trustee or agent acting on behalf of the holders of such Designated Senior
Indebtedness, then, unless and until such event of default has been cured or
waived in writing or has ceased to exist or such Designated Senior Indebtedness
has been discharged or repaid in full in cash (or such payment shall be duly


 


33

















 


provided for in a manner satisfactory to holders of
Senior Indebtedness) or otherwise to the extent holders of Senior Indebtedness
in their sole discretion accept satisfaction of amounts due by settlement in
other than cash or the benefits of these provisions have been waived in writing
by the holders of such Designated Senior Indebtedness, no direct or indirect
payment (other than in Junior Securities) will be made by or on behalf of the
Company of principal of, premium, if any, or interest on (and other
obligations, if any, with respect to) the Notes, whether pursuant to the terms
of the Notes, upon acceleration, pursuant to an offer to repurchase, redemption
or otherwise to such holders during a period (a “ Payment Blockage Period ”) commencing on the date of receipt
of the Payment Blockage Notice by the Trustee and ending 179 days thereafter.
The Trustee shall deliver a copy of the Payment Blockage Notice to the Company
promptly upon receipt thereof.


 


Notwithstanding anything in the subordination
provisions of this Indenture or the Notes to the contrary, (1) in no event
will a Payment Blockage Period extend beyond 179 days from the date the Payment
Blockage Notice in respect thereof was given and (2) not more than one
Payment Blockage Period may exist with respect to the Notes during any period
of 360 consecutive calendar days. No default that existed or was continuing on
the date of delivery of any Payment Blockage Notice (whether or not such event
is with respect to the same issue of Designated Senior Indebtedness) may be, or
be made, the basis for a subsequent Payment Blockage Notice, unless such
default has been cured or waived for a period of not less than 90 consecutive
calendar days.


 


(b) In the event that, notwithstanding the
foregoing, any payment shall be received by the Trustee or any holder at a time
when such payment is prohibited by Section 4.02(a), such payment shall be
received and held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Designated Senior Indebtedness or their respective
representatives, or to the trustee or trustees or agent or agents under any
indenture or agreement pursuant to which any of such Designated Senior
Indebtedness may have been issued or incurred, as their respective interests
may appear, but only to the extent that, upon notice from the Trustee to the
holders of Designated Senior Indebtedness that such prohibited payment has been
made, the holders of the Designated Senior Indebtedness (or their
representative or representatives or a trustee or trustees) notify the Trustee
in writing of the amounts then due and owing on the Designated Senior
Indebtedness, if any, and only the amounts specified in such notice to the
Trustee shall be paid to the holders of Designated Senior Indebtedness.


 


Section 4.03 .
Payment Over Of Proceeds Upon Dissolution, Etc.


 


(a) Upon any payment or distribution of assets or
securities of the Company of any kind or character, whether in cash, property
or securities, to the creditors of the Company upon any dissolution or
winding-up or total liquidation or reorganization of the Company, whether
voluntary or involuntary, or in bankruptcy, insolvency, receivership or other
similar proceedings relating to the Company, any assignment for the benefit of


 


34

















 


creditors or any marshalling of the Company’s assets
and liabilities, the holders of Senior Indebtedness shall be entitled to
receive payment in full in cash of all obligations due in respect of such
Senior Indebtedness (including interest accruing after, or which would accrue
but for, the commencement of any proceeding at the rate specified in the
applicable Senior Indebtedness, whether or not a claim for such interest would
be allowed), or have provision made for such payment in a manner acceptable to
holders of such Senior Indebtedness, before the holders of the Notes or the
Trustee on behalf of such holders shall be entitled to receive any payment by
the Company of the principal of, premium, if any, or interest on (and other
obligations, if any, with respect to) the Notes, or any payment by the Company
to acquire any of the Notes for cash, property or securities, or any
distribution by the Company with respect to the Notes of any cash, property or
securities (in each case, other than payments in Junior Securities).


 


(b) In the event that, notwithstanding the
foregoing provision prohibiting such payment or distribution, any payment or
distribution of assets or securities of the Company of any kind or character,
whether in cash, property or securities (in each case, other than Junior
Securities), shall be received by the Trustee or any Paying Agent or any holder
of Notes at a time when such payment or distribution is prohibited by Section 4.03(a) and
before all obligations in respect of Senior Indebtedness are paid in full in
cash (or such payment shall be duly provided for in a manner satisfactory to
the holders of Senior Indebtedness) or otherwise to the extent holders of
Senior Indebtedness in their sole discretion accept satisfaction of amounts due
by settlement in other than cash, such payment or distribution shall be
received and held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Indebtedness (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness held by such
holders) or their respective representatives, or to the trustee or trustees or
agent or agents under any indenture or agreement pursuant to which any of such
Senior Indebtedness may have been issued or incurred, as their respective
interests may appear, for application to the payment of Senior Indebtedness
remaining unpaid until all such Senior Indebtedness has been paid in full in cash
(or such payment shall be duly provided for in a manner satisfactory to the
holders of Senior Indebtedness) or otherwise to the extent holders of Senior
Indebtedness in their sole discretion accept satisfaction of amounts due by
settlement in other than cash after giving effect to any prior or concurrent
payment, distribution or provision therefor to or for the holders of such
Senior Indebtedness.


 


The consolidation of the Company with, or the merger
of the Company with or into, another corporation or limited liability company
or the liquidation or dissolution of the Company following the sale,
conveyance, transfer or lease of the Company’s and its subsidiaries’ property
as an entirety, or substantially as an entirety, to another corporation upon
the terms and conditions provided in Article 12 shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Article 4 if such other corporation shall, as a part of such
consolidation, merger, sale, conveyance, transfer or lease, comply with the
conditions stated in Article 12.


 


35

















 


Section 4.04 .
Subrogation  . Upon the
payment in full in cash (or such payment shall be duly provided for in a manner
satisfactory to the holders of Senior Indebtedness) or otherwise to the extent
holders of Senior Indebtedness in their sole discretion accept satisfaction of
amounts due by settlement in other than cash of all Senior Indebtedness, the
holders of the Notes shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash, cash equivalents,
property or securities of the Company made on such Senior Indebtedness until
the principal of, premium, if any, and interest on the Notes shall be paid in
full in cash or the Notes are no longer outstanding; and, for the purposes of
such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, cash equivalents, property or securities to which the
holders of the Notes or the Trustee on their behalf would be entitled except
for the provisions of this Article 4, and no payment over pursuant to the
provisions of this Article 4 to the holders of Senior Indebtedness by
holders of the Notes or the Trustee on their behalf shall, as between the
Company, its creditors other than holders of Senior Indebtedness, and the
holders of the Notes, be deemed to be a payment by the Company to or on account
of the Senior Indebtedness. It is understood that the provisions of this Article 4
are and are intended solely for the purpose of defining the relative rights of
the holders of the Notes, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.


 


If any payment or distribution to which the holders of
the Notes would otherwise have been entitled but for the provisions of this Article 4
shall have been applied, pursuant to the provisions of this Article 4, to
the payment of all amounts payable under Senior Indebtedness, then and in such
case, the holders of the Notes shall be entitled to receive from the holders of
such Senior Indebtedness any payments or distributions received by such holders
of Senior Indebtedness in excess of the amount required to make payment in full
in cash of such Senior Indebtedness (or to duly provide for such payment in a
manner satisfactory to the holders of Senior Indebtedness) or otherwise to the
extent holders of Senior Indebtedness in their sole discretion accept
satisfaction of amounts due by settlement in other than cash.


 


Section 4.05 .
Obligations Of Company Unconditional  . Nothing contained in this Article 4 or elsewhere in
this Indenture or in the Notes is intended to or shall impair, as among the
Company and the holders of the Notes, the obligation of the Company, which is
absolute and unconditional, to pay to the holders of the Notes the principal
of, premium on and interest on the Notes 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 Notes and creditors of the Company
other than the holders of the Senior Indebtedness, nor shall anything herein or
therein prevent the holder of any Note or the Trustee on their behalf from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article 4
of the holders of the Senior Indebtedness in respect of cash, cash equivalents,
property or securities of the Company received upon the exercise of any such
remedy.


 


36

















 


Without limiting the generality of the foregoing,
nothing contained in this Article 4 shall restrict the right of the
Trustee or the holders of Notes to take any action to declare the Notes to be
due and payable prior to their stated maturity pursuant to Section 8.01 or
to pursue any rights or remedies hereunder; provided
, however , that all Senior
Indebtedness then due and payable shall first be paid in full in cash
(including Post-Petition Interest), or have provision made for such payment in
a manner satisfactory to the holders of such Senior Indebtedness, before the
holders of the Notes or the Trustee are entitled to receive any direct or
indirect payment from the Company of principal of, premium and interest on (and
other obligations, if any, with respect to) the Notes.


 


Section 4.06 .
Notice To Trustee  .
The Company shall give prompt written notice to the Trustee of any fact known
to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Notes pursuant to the provisions of this Article 4.
Unless the Trustee has failed to give notice of its change of address pursuant
to Section 16.03 hereof, the Trustee shall not be charged with knowledge
of the existence of any event of default with respect to any Senior
Indebtedness or of any other facts which would prohibit the making of any
payment to or by the Trustee unless and until the Trustee shall have received
notice in writing at its Corporate Trust Office to that effect signed by an
Officer of the Company, or by a holder of Senior Indebtedness or trustee or
agent therefor; and prior to the receipt of any such written notice, the
Trustee subject to the provisions of Article 9 shall, be entitled to
assume that no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section 4.06 at least
two Business Days prior to the date upon which by the terms of this Indenture
any moneys shall become payable for any purpose (including, without limitation,
the payment of the principal of, premium, if any, or interest on any Note),
then, regardless of anything herein to the contrary, the Trustee shall have
full power and authority to receive any moneys from the Company and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary which may be received by it on or after such
prior date. Nothing contained in this Section 4.06 shall limit the right
of the holders of Senior Indebtedness to recover payments as contemplated by Section 4.03
or from any holder under Section 4.02(b). The Trustee shall be entitled to
conclusively rely on the delivery to it of a written notice by a Person
representing himself or itself to be a holder of any Senior Indebtedness (or a
trustee on behalf of, or agent or other representative of, such holder) to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee or agent or representative on behalf of any such
holder. A holder of Senior Indebtedness and any trustee, agent or other
representative on behalf of such holder shall be entitled to deliver all
notices required by this Section 4.06 or otherwise pursuant to this Article 4
to the address of the Trustee set forth herein unless such holder or the
trustee, agent or representative of such holder shall have received actual
written notice of a change of address of the Trustee.


 


In the event that the Trustee determines in good faith
that any evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in


 


37

















 


any payment or distribution pursuant to this Article 4,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article 4, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.


 


Section 4.07 .
Trustee’s Relation To Senior Indebtedness  . The Trustee and any Paying Agent shall be entitled to all
the rights set forth in this Article 4 with respect to any Senior
Indebtedness which may at any time be held by it in its individual or any other
capacity to the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee or any Paying Agent of any
of its rights as such holder.


 


With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article 4, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness (except as provided in Section 4.02(b) and 4.03(b)). The
Trustee shall not be liable to any such holders if the Trustee shall in good
faith mistakenly pay over or distribute to holders of Notes or to the Company
or to any other person cash, property or securities to which any holders of
Senior Indebtedness shall be entitled by virtue of this Article 4 or
otherwise.


 


Section 4.08 .
Subordination Rights Not Impaired By Acts Or Omissions Of The Company Or
Holders Of Senior Indebtedness  .
No right of any present or future holders of any Senior Indebtedness to enforce
subordination as provided herein shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with. The provisions
of this Article 4 are intended to be for the benefit of, and shall be
enforceable directly by, the holders of Senior Indebtedness.


 


Section 4.09 .
Holders Authorize Trustee To Effectuate Subordination Of Notes  . Each holder of Notes by his acceptance
of such Notes authorizes and expressly directs the Trustee on his behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article 4, and appoints the Trustee his
attorney-in-fact for such purposes, including, in the event of any dissolution,
winding-up, total liquidation or reorganization of the Company (whether in
bankruptcy, insolvency, receivership, reorganization or similar proceedings or
upon an assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Company, the


 


38

















 


filing of a claim for the unpaid balance of its or his
Notes in the form required in those proceedings.


 


Section 4.10 .
This Article Not To Prevent Events Of Default  . The failure to make a payment on account
of principal of, or premium, if any, or interest on the Notes by reason of any
provision of this Article 4 shall not be construed as preventing the
occurrence of an Event of Default specified in clauses (a) or (b) of Section 8.01.


 


Section 4.11 .
Trustee’s Compensation And Rights To Indemnification Not Prejudiced  . Nothing in this Article 4 shall
apply to amounts due to the Trustee, or its rights to indemnification, pursuant
to other sections in this Indenture.


 


Section 4.12 .
No Waiver Of Subordination Provisions  . Without in any way limiting the generality of Section 4.08,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the holders of the Notes,
without incurring responsibility to the holders of the Notes and without
impairing or releasing the subordination provided in this Article 4 or the
obligations hereunder of the holders of the Notes to the holders of Senior
Indebtedness, do any one or more of the following: (a) change the manner,
place or terms of payment or extend the time of payment of, or renew, alter or
amend, Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding or secured; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness; (c) release any Person liable in
any manner for the collection of Senior Indebtedness; and (d) exercise or
refrain from exercising any rights against the Company and any other Person.


 


Section 4.13 .
Subordination Provisions Not Applicable To Money Held In Trust For Holders;
Payments May Be Paid Prior To Dissolution  . All funds deposited in trust with the
Paying Agent pursuant to and in accordance with Article 13 when permitted
pursuant to Article 4 shall be for the sole benefit of the holders and
shall not be subject to this Article 4.


 


Nothing contained in this Article 4 or elsewhere
in this Indenture shall prevent (i) the Company, except under the
conditions described in this Article 4, from making payments of principal
of, premium, if any, and interest on the Notes or from depositing with the
Paying Agent any moneys for such payments or from effecting a termination of
the Company’s obligations under the Notes and this Indenture as provided in Article 13,
or (ii) the application by the Trustee of any moneys deposited with it or
any Paying Agent for the purpose of making such payments of principal of,
premium, if any, and interest on the Notes, to the holders entitled thereto
unless at least two Business Days prior to the date upon which such payment
becomes due and payable, the Trustee shall have received the written notice provided
for in Section 4.02(b) or in Section 4.06. The Company shall
give prompt written notice to the Trustee of any dissolution, winding-up,
liquidation or reorganization of the Company.


 


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Section 4.14 .
Acceleration Of Notes  .
If payment of the Notes is accelerated because of an Event of Default, the
Company shall promptly notify holders of the Senior Indebtedness of the
acceleration.


 


Section 4.15 .
Certain Conversions and Repurchases Not Deemed Payment  . For the purposes of this Article 4
only, the issuance and delivery of Junior Securities, if any, upon conversion
of Notes in accordance with, and the payment, issuance or delivery of cash,
property or securities upon conversion of a Note as a result of any transaction
pursuant to, Section 15.01 shall not be deemed to constitute a payment or
distribution on account of the principal of, premium, if any, or interest on
Notes or on account of the purchase or other acquisition of Notes. For the
purposes of this Article 4, the term “ Junior
Securities ” means (a) Common Stock of the Company, or (b) securities
of the Company that are subordinated in right of payment to all Senior
Indebtedness that may be outstanding at the time of issuance or delivery of
such securities to at least the same extent as, or to a greater extent than,
the Notes are so subordinated as provided in this Article 4. Nothing
contained in this Article 4 or elsewhere in this Indenture or in the Notes
is intended to or shall impair, as among the Company, its creditors (other than
holders of Senior Indebtedness) and the Noteholders, the right, which is
absolute and unconditional, of the holder of any Note to convert such Note in
accordance with Section 15.01.


 


ARTICLE 5


CONTINGENT INTEREST


 


Section 5.01 . Contingent Interest  .
Beginning with the six-month interest period commencing July 1, 2011, the
Company will pay contingent interest during any six-month interest period if
the Trading Price of the Notes for each of the five Trading Days ending on the
second Trading Day immediately preceding the first day of the applicable
six-month interest period equals or exceeds 120% of the principal amount of the
Notes. During any six-month interest period when contingent interest is
payable, the contingent interest payable on each $1,000 principal amount of
Notes shall equal 0.25% of the average Trading Price of $1,000 principal amount
of Notes during the five Trading Days immediately preceding the first day of
the applicable six-month interest period used to determine whether contingent
interest must be paid.


 


The Trustee’s sole responsibility pursuant to Section 5.01
hereof shall be to obtain the Trading Price of the Notes for each of the five
Trading Days immediately preceding the first day of the applicable six-month
interest period and to provide such information to the Company. The Company
shall determine whether holders are entitled to receive contingent interest,
and if so, provide notice pursuant to Section 5.03. Notwithstanding any
term contained in this Indenture or any other document to the contrary, the
Trustee shall have no responsibilities, duties or obligations for or with
respect to (i) determining whether the Company must pay contingent
interest or (ii) determining the amount of contingent interest, if any,
payable by the Company.


 


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Section 5.02 .
Payment of Contingent Interest  .
Contingent interest for any six-month interest period shall be paid on the
applicable interest payment date to the Person in whose name any Note (or its
Predecessor Note) is registered on the Note Register at the corresponding
Record Date. Contingent interest due under this Article 5 shall be treated
for all purposes of this Indenture like any other interest accruing on the
Notes.


 


Section 5.03 .
Contingent Interest Notification  .
On or before the first Business Day of a six-month interest period during which
contingent interest will be paid, the Company will disseminate a press release
through Dow Jones & Company, Inc. or Bloomberg Business News
stating that contingent interest will be paid on the Notes and identifying the
six-month interest period.


 


ARTICLE
6


PARTICULAR COVENANTS OF THE COMPANY


 


Section 6.01 .
Payment of Principal, Premium and Interest  . The Company covenants and agrees that it
will duly and punctually pay or cause to be paid when due the principal of
(including the redemption price upon redemption or the repurchase price upon
repurchase, in each case pursuant to Article 3), and premium, if any, and
interest on each of the Notes at the places, at the respective times and in the
manner provided herein and in the Notes.


 


Section 6.02 .
Maintenance of Office or Agency  .
The Company will maintain an office or agency in the Borough of Manhattan, The
City of New York, where the Notes may be surrendered for registration of
transfer or exchange or for presentation for payment or for conversion,
redemption or repurchase and where notices and demands to or upon the Company
in respect of the Notes and this Indenture may be served. As of the date of
this Indenture, such office is located at U.S. Bank National Association, 100
Wall Street, Suite 1600, New York, NY 10005, Attention: Corporate Trust
Office and, at any other time, at such other address as the Trustee may designate
from time to time by notice to the Company. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency not designated or appointed by the Trustee. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office.


 


The Company may also from time to time designate
co-registrars and one or more offices or agencies where the Notes may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.


 


41
















 


The Company hereby initially
designates the Trustee as Paying Agent, Note Registrar, Custodian and
conversion agent and the Corporate Trust Office shall be considered as one such
office or agency of the Company for each of the aforesaid purposes.


 


So long as the Trustee is
the Note Registrar, the Trustee agrees to mail, or cause to be mailed, the
notices set forth in Section 9.10(a) and the third paragraph of Section 9.11.
If co-registrars have been appointed in accordance with this Section, the
Trustee shall mail such notices only to the Company and the holders of Notes it
can identify from its records.


 


Section 6.03 . Appointments to Fill Vacancies in Trustee’s Office
. The Company, whenever necessary
to avoid or fill a vacancy in the office of Trustee, will appoint, upon the
terms and conditions and otherwise as provided in Section 9.10, a Trustee,
so that there shall at all times be a Trustee hereunder.


 


Section 6.04 . Provisions as to Paying Agent  . (a) If the Company shall appoint a
Paying Agent other than the Trustee, or if the Trustee shall appoint such a
Paying Agent, the Company will cause such Paying Agent to execute and deliver
to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section 6.04:


 


(1) that
it will hold all sums held by it as such agent for the payment of the principal
of and premium, if any, or interest on the Notes (whether such sums have been
paid to it by the Company or by any other obligor on the Notes) in trust for
the benefit of the holders of the Notes;


 


(2) that
it will give the Trustee notice of any failure by the Company (or by any other
obligor on the Notes) to make any payment of the principal of and premium, if
any, or interest on the Notes when the same shall be due and payable; and


 


(3) that
at any time during the continuance of an Event of Default, upon request of the
Trustee, it will forthwith pay to the Trustee all sums so held in trust.


 


The Company shall, on or
before each due date of the principal of, premium, if any, or interest on the
Notes, deposit with the Paying Agent a sum (in funds which are immediately
available on the due date for such payment) sufficient to pay such principal,
premium, if any, or interest and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of any failure to take such action; provided that if such deposit is made on
the due date, such deposit shall be received by the Paying Agent by 11:00 a.m.
New York City time, on such date.


 


42

















 


(b) If the Company
shall act as its own Paying Agent, it will, on or before each due date of the
principal of, premium, if any, or interest on the Notes, set aside, segregate
and hold in trust for the benefit of the holders of the Notes a sum sufficient
to pay such principal, premium, if any, and interest so becoming due and will
promptly notify the Trustee of any failure to take such action and of any
failure by the Company (or any other obligor under the Notes) to make any
payment of the principal of, premium, if any, or interest on the Notes when the
same shall become due and payable.


 


(c) Anything in this Section 6.04
to the contrary notwithstanding, the Company may, at any time, for the purpose
of obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust by the
Company or any Paying Agent hereunder as required by this Section 6.04,
such sums to be held by the Trustee upon the trusts herein contained and upon
such payment by the Company or any Paying Agent to the Trustee, the Company or
such Paying Agent shall be released from all further liability with respect to
such sums.


 


(d) Anything in this Section 6.04
to the contrary notwithstanding, the agreement to hold sums in trust as
provided in this Section 6.04 is subject to Section 13.02 and Section 13.03.


 


The Trustee shall not be
responsible for the actions of any other Paying Agents (including the Company
if acting as its own Paying Agent) and shall have no control of any funds held
by such other Paying Agents.


 


Section 6.05 . Existence  . Subject to Article 12, the Company will do or cause
to be done all things necessary to preserve and keep in full force and effect
its existence and rights (charter and statutory); provided that the Company shall not be required to preserve
any such right if the Company shall determine 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 Noteholders.


 


Section 6.06 . Payment of Taxes and Other Claims  . The Company will pay or discharge, or
cause to be paid or discharged, before the same may become delinquent, (i) all
taxes, assessments and governmental charges levied or imposed upon the Company
or any Significant Subsidiary or upon the income, profits or property of the
Company or any Significant Subsidiary, (ii) all claims for labor,
materials and supplies which, if unpaid, might by law become a lien or charge
upon the property of the Company or any Significant Subsidiary and (iii) all
stamp taxes and other duties, if any, which may be imposed by the United States
or any political subdivision thereof or therein in connection with the
issuance, transfer, exchange, conversion, redemption or repurchase of any Notes
or with respect to this Indenture; provided
that, in the case of clauses (i) and (ii), the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim (A) if the failure to do so will not, in the
aggregate, have a material adverse impact on the Company, or (B) if the
amount, applicability or validity is being contested in good faith by
appropriate proceedings.


 


43

















 


Section 6.07 . Rule 144A Information Requirement  . Within the period prior to the
expiration of the holding period applicable to sales thereof under Rule 144(k) under
the Securities Act (or any successor provision), the Company covenants and
agrees that it shall, during any period in which it is not subject to Section 13
or 15(d) under the Exchange Act, make available to any holder or
beneficial holder of Notes or any Common Stock issued upon conversion thereof
which continue to be Restricted Securities in connection with any sale thereof
and any prospective purchaser of Notes or such Common Stock designated by such
holder or beneficial holder, the information required pursuant to Rule 144A(d)(4) under
the Securities Act upon the request of any holder or beneficial holder of the
Notes or such Common Stock, all to the extent required to enable such holder or
beneficial holder to sell its Notes or Common Stock without registration under
the Securities Act within the limitation of the exemption provided by Rule 144A.


 


Section 6.08 . Stay, Extension and Usury Laws  . The Company covenants (to the extent
that it may lawfully do so) that it shall not at any time insist upon, plead,
or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law or other law which would prohibit or forgive the
Company from paying all or any portion of the principal, premium, if any, or
interest on the Notes as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance
of this Indenture and the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.


 


Section 6.09 . Compliance Certificate  . The Company shall deliver to the
Trustee, within one hundred twenty calendar days after the end of each fiscal
year of the Company, a certificate signed by either the principal executive
officer, principal financial officer or principal accounting officer of the
Company, stating whether or not to the knowledge of the signer thereof the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and the status thereof
of which the signer may have knowledge.


 


The Company will deliver to
the Trustee, promptly upon becoming aware of (i) any default in the
performance or observance of any covenant, agreement or condition contained in
this Indenture, or (ii) any Event of Default, an Officers’ Certificate
specifying with particularity such default or Event of Default and further stating
what action the Company has taken, is taking or proposes to take with respect
thereto.


 


Any notice required to be
given under this Section 6.09 shall be delivered to a Responsible Officer
of the Trustee at its Corporate Trust Office.


 


44

















 


Section 6.10 Additional Interest Notice . In the event
that the Company is required to pay Additional Interest to holders of Notes
pursuant to the Registration Rights Agreement, the Company will provide written
notice (“ Additional Interest Notice
”) to the Trustee of its obligation to pay Additional Interest no later than
fifteen calendar days prior to the proposed payment date for Additional
Interest, and the Additional Interest Notice shall set forth the amount of Additional
Interest to be paid by the Company on such payment date. The Trustee shall not
at any time be under any duty or responsibility to any holder of Notes to
determine the Additional Interest, or with respect to the nature, extent or
calculation of the amount of Additional Interest when made, or with respect to
the method employed in such calculation of the Additional Interest.


 


Section 6.11 . Tax Treatment . The parties hereto
hereby agree, and by acceptance of a beneficial ownership interest in the Notes
each holder and any beneficial holder of a Note hereby agrees:


 


(a) to
treat (X) the Notes as “indebtedness” of the Company, for United States
federal income tax purposes and as “contingent payment debt instruments” as
defined in Treasury Regulation Section 1.1275-4 (the “Contingent Payment
Debt Regulations”) and (Y) the delivery of cash (including cash delivered
in lieu of a fractional share) and Common Stock, if any, to a holder of Notes
upon conversion of such Notes, or upon a repurchase or redemption, as a “contingent
payment” (in an amount equal to the sum of the Fair Market Value of such Common
Stock and any cash received) under the Contingent Payment Debt Regulations;


 


(b) to
be bound by the Company’s application of the Contingent Payment Debt Regulations
to the Notes including the Company’s determination of the “comparable yield”
and “projected payment schedule”, within the meaning of the Contingent Payment
Debt Regulations, with respect to the Notes. A holder of Notes may obtain, in
respect of the Notes, the Issue Price, Issue Date, amount of original issue,
discount comparable yield, and projected payment schedule by submitting a
written request to the Company at the following address: Advanced Medical
Optics, Inc., 1700 East St. Andrew Place, Santa Ana, California 92705,
Attention: Investor Relations;


 


(c) that
the comparable yield and the projected payment schedule (X) are determined
on the basis of an assumption of a fixed growth of stock price, (Y) are
not determined for any purpose other than for the purpose of applying the
Contingent Payment Debt Regulations to the Notes, and (Z) do not
constitute a projection or representation regarding the actual amounts payable
on the Notes;


 


(d) that
each holder shall use the comparable yield and projected payment schedule with
respect to the Notes, as required by Treasury Regulation section
1.1275-4(b)(4)(iv), to determine its interest accruals and adjustments under
the Contingent Payment Debt Regulations; and


 


(e) that
the Company and each holder shall not take any position on a tax return
inconsistent with (a), (b), (c) or (d), unless otherwise required by
applicable law.


 


45

















 


Section 6.12 . Limitation on Layering . The Company
shall not incur any Indebtedness that is contractually senior in right of
payment to the Notes and contractually subordinate in right of payment to any
other Indebtedness of the Company.


 


ARTICLE 7


NOTEHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE


 


Section 7.01 . Noteholders’ Lists . The Company
covenants and agrees that it will furnish or cause to be furnished to the
Trustee, semi-annually, not more than fifteen calendar days after each January 1
and July 1 in each year beginning with January 1, 2006, and at such
other times as the Trustee may reasonably request in writing, within thirty
calendar days after receipt by the Company of any such request (or such lesser
time as the Trustee may reasonably request in order to enable it to timely
provide any notice to be provided by it hereunder), a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of
Notes as of a date not more than fifteen calendar days (or such other date as
the Trustee may reasonably request in order to so provide any such notices)
prior to the time such information is furnished, except that no such list need
be furnished by the Company to the Trustee so long as the Trustee is acting as
the sole Note Registrar.


 


Section 7.02 . Preservation and Disclosure of Lists . (a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Notes contained in
the most recent list furnished to it as provided in Section 7.01 or
maintained by the Trustee in its capacity as Note Registrar or co-registrar in
respect of the Notes, if so acting. The Trustee may destroy any list furnished
to it as provided in Section 7.01 upon receipt of a new list so furnished.


 


(b) The rights of
Noteholders to communicate with other holders of Notes with respect to their
rights under this Indenture or under the Notes, and the corresponding rights
and duties of the Trustee, shall be as provided by the Trust Indenture Act.


 


(c) Every Noteholder
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by


 


46

















 


reason of any disclosure of
information as to names and addresses of holders of Notes made pursuant to the
Trust Indenture Act.


 


Section 7.03 . Reports by Trustee . (a) Within
sixty calendar days after May 15 of each year commencing with the year
2006, the Trustee shall transmit to holders of Notes such reports dated as of May 15
of the year in which such reports are made concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto. In the event that
no events have occurred under the applicable sections of the Trust Indenture
Act the Trustee shall be under no duty or obligation to provide such reports.


 


(b) A copy of such
report shall, at the time of such transmission to holders of Notes, be filed by
the Trustee with each stock exchange and automated quotation system, if any,
upon which the Notes are listed and with the Company. The Company will promptly
notify the Trustee in writing if the Notes are listed on any stock exchange or
automated quotation system or delisted therefrom.


 


Section 7.04 . Reports by Company . The Company shall
deliver to the Trustee (and the Commission if at any time after the Indenture
becomes qualified under the Trust Indenture Act), and the Trustee shall deliver
to holders of Notes, such information, documents and other reports and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to the Trust Indenture Act,
whether or not the Notes are governed by such Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act shall be delivered to the Trustee within fifteen calendar days
after the same is so required to be filed with the Commission. Delivery of such
reports, information and documents to the Trustee is for informational purposes
only and the Trustee’s receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on an Officers’
Certificates).


 


ARTICLE 8


REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT


 


Section 8.01 . Events of Default . In case one or more
of the following Events of Default (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body)
shall have occurred and be continuing:


 


(a) default in the
payment of any installment of interest upon any of the Notes as and when the
same shall be due and payable, and continuance of such default for a period of
thirty calendar days, whether or not the payment is prohibited by Article 4;
or


 


47

















 


(b) default in the
payment of the principal of any of the Notes as and when the same shall be due
and payable at maturity, by acceleration or otherwise, or default in the
payment of the redemption price or the repurchase price in connection with any
redemption or repurchase pursuant to Article 3, whether or not the payment
is prohibited by Article 4; or


 


(c) default in the
payment of the Conversion Value when due, whether due in cash or cash and
shares of Common Stock, as the case may be, and such failure continues for a
period of five days thereafter


 


(d) the Company fails
to provide on a timely basis a Company Repurchase Notice after the occurrence
of a Fundamental Change as provided in Section 3.07(b)7; or


 


(e) failure on the part
of the Company to observe or perform any other of the covenants or agreements
on the part of the Company in the Notes or in this Indenture (other than a
covenant or agreement a default in whose performance or whose breach is
elsewhere in this Section 8.01 specifically dealt with) and such failure
continues for a period of sixty calendar days after the date on which 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 a Responsible
Officer of the Trustee by the holders of at least twenty-five percent (25%) in
aggregate principal amount of the Notes at the time outstanding; or


 


(f) the Company shall
default in the payment of principal when due upon acceleration of other
Indebtedness of the Company for borrowed money where the aggregate principal
amount with respect to which the acceleration has occurred exceeds $25.0
million and such other Indebtedness has not been discharged, or such
acceleration has not been rescinded, stayed or annulled within a period of 30
calendar 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 a Responsible Officer of the Trustee by the holders of at least
twenty-five percent (25%) in aggregate principal amount of the Notes at the
time outstanding;


 


(g) the Company shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to the Company or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of the Company or any substantial part of the property of the
Company, or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against the Company, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due; or


 


(h) an involuntary case
or other proceeding shall be commenced against the Company seeking liquidation,
reorganization or other relief with respect to the Company


 


48

















 


or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of the Company or any substantial part of the property of the
Company, and such involuntary case or other proceeding shall remain undismissed
and unstayed for a period of sixty consecutive calendar days;


 


then, and in each and every
such case (other than an Event of Default specified in Section 8.01(g) and
(h)), unless the principal of all of the Notes shall have already become due
and payable, either the Trustee or the holders of at least than twenty-five
percent (25%) in aggregate principal amount of the Notes then outstanding, by
notice in writing to the Company (and to the Trustee if given by Noteholders),
may declare the principal of and premium, if any, and interest accrued and
unpaid on all the Notes to be due and payable, and upon any such declaration
the same shall be due and payable (i) immediately if there shall no longer
be a Senior Credit Facility or, (ii) if the Senior Credit Facility is in
effect, immediately upon the earlier to occur of (A) the date Indebtedness
under the Senior Credit Facility is declared accelerated and (B) the fifth
Business Day after written notice of the declaration of such acceleration has
been given to the agents under the Senior Credit Facility, anything in this
Indenture or in the Notes contained to the contrary notwithstanding. If an
Event of Default specified in Section 8.01(g) or Section 8.01(h) occurs,
the principal of and premium, if any, and interest accrued and unpaid on all
the Notes shall be immediately and automatically due and payable without
necessity of further action. If, at any time after the principal of and
premium, if any, and interest on the Notes shall have been so declared due and
payable, and before any judgment or decree for the payment of the monies due
shall have been obtained or entered as hereinafter provided, (a) the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay (i) all
matured installments of interest upon all the Notes, (ii) the principal of
and premium, if any, on all the Notes which shall have become due otherwise
than by acceleration, (iii) interest on overdue installments of accrued
and unpaid interest (to the extent that payment of such interest is enforceable
under applicable law) and on such principal of and premium, if any, as provided
in Section 8.02, to the date of such payment or deposit and (iv) amounts
due to the Trustee pursuant to Section 9.06, and (b) any and all
defaults under this Indenture, other than the nonpayment of principal of and
premium, if any, and accrued and unpaid interest on the Notes which shall have
become due by such declaration of acceleration, shall have been cured or waived
pursuant to Section 8.07, then and in every such case the holders of a
majority in aggregate principal amount of the Notes then outstanding on behalf
of the holders of all of the Notes then outstanding, by written notice to the
Company and to the Trustee, may waive all defaults or Events of Default and
rescind and annul such declaration and its consequences subject to Section 8.07;
but no such waiver or rescission and annulment shall extend to or shall affect
any subsequent default or Event of Default, or shall impair any right
consequent thereon. The Company shall notify in writing a Responsible Officer
of the Trustee, promptly upon becoming aware thereof, of any Event of Default,
as provided in Section 6.09.


 


49

















 


In case the Trustee shall
have proceeded to enforce any right under this Indenture and such proceedings
shall have been discontinued or abandoned because of such waiver or rescission
and annulment or for any other reason or shall have been determined adversely
to the Trustee, then and in every such case the Company, the holders of Notes,
and the Trustee shall be restored respectively to their several positions and
rights hereunder, and all rights, remedies and powers of the Company, the
holders of Notes, and the Trustee shall continue as though no such proceeding
had been taken.


 


Section 8.02 . Payments of Notes on Default ; Suit Therefor . The Company covenants that
in the case of an Event of Default pursuant to Section 8.01(a) or
8.01(b), upon demand of the Trustee, the Company will pay to the Trustee, for
the benefit of the holders of the Notes, (i) the whole amount that then
shall be due and payable on all such Notes for principal and premium, if any,
or interest, as the case may be, with interest upon the overdue principal and
premium, if any, and (to the extent that payment of such interest is
enforceable under applicable law) upon the overdue installments of accrued and
unpaid interest at the rate borne by the Notes, plus 1%, from the required
payment date and, (ii) in addition thereto, any amounts due the Trustee
under Section 9.06. Until such demand by the Trustee, the Company may pay
the principal of and premium, if any, and interest on the Notes to the
registered holders, whether or not the Notes are overdue.


 


In case the Company shall
fail forthwith to pay such amounts upon such demand, the Trustee, in its own
name and as trustee of an express trust, shall be entitled and empowered to
institute any actions or proceedings at law or in equity for the collection of
the sums so due and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or final decree
against the Company or any other obligor on the Notes and collect in the manner
provided by law out of the property of the Company or any other obligor on the
Notes wherever situated the monies adjudged or decreed to be payable.


 


In case there shall be
pending proceedings for the bankruptcy or for the reorganization of the Company
or any other obligor on the Notes under Title 11 of the United States Code, or
any other applicable law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Company or such other
obligor, the property of the Company or such other obligor, or in the case of
any other judicial proceedings relative to the Company or such other obligor
upon the Notes, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of the Notes 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 pursuant to the
provisions of this Section 8.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal, premium, if any, accrued and unpaid
interest in respect of the Notes, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the


 


50

















 


Trustee and of the
Noteholders allowed in such judicial proceedings relative to the Company or any
other obligor on the Notes, its or their creditors, or its or their property,
and to collect and receive any monies or other property payable or deliverable
on any such claims, and to distribute the same after the deduction of any amounts
due the Trustee under Section 9.06, and to take any other action with
respect to such claims, including participating as a member of any official
committee of creditors, as it reasonably deems necessary or advisable, unless
prohibited by law or applicable regulations, and any receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, custodian or similar
official is hereby authorized by each of the Noteholders 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 Noteholders, to pay to the Trustee any amount
due it for reasonable compensation, expenses, advances and disbursements,
including counsel fees and expenses incurred by it up to the date of such distribution.
To the extent that such payment of reasonable compensation, expenses, advances
and disbursements out of the estate in any such proceedings shall be denied for
any reason, payment of the same shall be secured by a lien on, and shall be
paid out of, any and all distributions, dividends, monies, securities and other
property which the holders of the Notes may be entitled to receive in such
proceedings, whether in liquidation or under any plan of reorganization or
arrangement or otherwise.


 


All rights of action and of
asserting claims under this Indenture, or under any of the Notes, may be
enforced by the Trustee without the possession of any of the Notes, or the
production thereof at any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the holders of the Notes.


 


In any proceedings brought
by the Trustee (and in any proceedings involving the interpretation of any
provision of this Indenture to which the Trustee shall be a party) the Trustee
shall be held to represent all the holders of the Notes, and it shall not be
necessary to make any holders of the Notes parties to any such proceedings.


 


Section 8.03 . Application of Monies Collected by Trustee
.. Any monies collected by the Trustee pursuant to this Article 8, shall be
applied, subject to Article 4, in the following order, at the date or
dates fixed by the Trustee for the distribution of such monies, upon
presentation of the several Notes, and stamping thereon the payment, if only
partially paid, and upon surrender thereof, if fully paid:


 


FIRST: To the payment of all
amounts due the Trustee under Section 9.06;


 


SECOND: In case the
principal of the outstanding Notes shall not have become due and be unpaid, to
the payment of accrued and unpaid interest, if any, on the Notes in default in
the order of the maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the Trustee) as
provided in Section 8.02


 


51

















 


upon the overdue
installments of interest at the annual rate of 1% above the then applicable
interest rate, such payments to be made ratably to the Persons entitled
thereto;


 


THIRD: In case the principal
of the outstanding Notes shall have become due, by declaration or otherwise,
and be unpaid to the payment of the whole amount then owing and unpaid upon the
Notes for principal and premium, if any, and interest, with interest on the
overdue principal and premium, if any, and (to the extent that such interest
has been collected by the Trustee) upon overdue installments of accrued and
unpaid interest, as provided in Section 8.02, and in case such monies
shall be insufficient to pay in full the whole amounts so due and unpaid upon
the Notes, then to the payment of such principal and premium, if any, and
interest without preference or priority of principal and premium, if any, over
interest, or of interest over principal and premium, if any, or of any
installment of interest over any other installment of interest, or of any Note
over any other Note, ratably to the aggregate of such principal and premium, if
any, and accrued and unpaid interest; and


 


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


 


Section 8.04 . Proceedings by Noteholder . No holder of
any Note shall have any right by virtue of or by reference to any provision of
this Indenture to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Indenture, or for the appointment of a
receiver, trustee, liquidator, custodian or other similar official, or for any
other remedy hereunder, except in the case of a default in the payment of
principal, premium, if any, or interest on the Notes, unless (a) such
holder previously shall have given to the Trustee written notice of an Event of
Default and of the continuance thereof, as hereinbefore provided, (b) the
holders of at least twenty-five percent (25%) in aggregate principal amount of
the Notes then outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable security or indemnity as
it may require against the costs, liabilities or expenses to be incurred
therein or thereby, (c) the Trustee for sixty calendar days after its
receipt of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding and (d) no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 8.07; it being understood and intended, and
being expressly covenanted by the taker and holder of every Note with every
other taker and holder and the Trustee, that no one or more holders of Notes
shall have any right in any manner whatever by virtue of or by reference to any
provision of this Indenture to affect, disturb or prejudice the rights of any
other holder of Notes, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Notes (except as otherwise provided herein).
For the protection and enforcement of this Section 8.04, each and every
Noteholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.


 


52
















 


Notwithstanding any other
provision of this Indenture and any provision of any Note, the right of any
holder of any Note to receive payment of the principal of (including the
redemption price or repurchase price upon redemption or repurchase pursuant to Article 3)
and premium, if any, and accrued interest on such Note, on or after the
respective due dates expressed in such Note or in the event of redemption or
repurchase, or to institute suit for the enforcement of any such payment on or
after such respective dates against the Company shall not be impaired or
affected without the consent of such holder.


 


Anything contained in this
Indenture or the Notes to the contrary notwithstanding, the holder of any Note,
without the consent of either the Trustee or the holder of any other Note, in
its own behalf and for its own benefit, may enforce, and may institute and
maintain any proceeding suitable to enforce, its rights of conversion as
provided herein.


 


Section 8.05 . Proceedings by Trustee . In case of an
Event of Default, the Trustee may, in its discretion, proceed to protect and
enforce the rights vested in it by this Indenture by such appropriate judicial
proceedings as are necessary to protect and enforce any of such rights, either
by suit in equity or by action at law or by proceeding in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in
this Indenture, or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.


 


Section 8.06 . Remedies Cumulative and Continuing .
Except as provided in Section 2.06, all powers and remedies given by this Article 8
to the Trustee or to the Noteholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the holders of the Notes, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture, and no delay or omission
of the Trustee or of any holder of any of the Notes to exercise any right or
power accruing upon any default or Event of Default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or any acquiescence therein, and, subject to the
provisions of Section 8.04, every power and remedy given by this Article 8
or by law to the Trustee or to the Noteholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Noteholders.


 


Section 8.07 . Direction of Proceedings and Waiver of Defaults by
Majority of Noteholders . The holders of a majority in aggregate
principal amount of the Notes at the time outstanding shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee; provided that (a) such
direction shall not be in conflict with any rule of law or with this
Indenture, (b) the Trustee may take any other action which is not
inconsistent with such direction, (c) the Trustee may decline to take any
action that would


 


53

















 


benefit some Noteholder to
the detriment of other Noteholders and (d) the Trustee may decline to take
any action that would involve the Trustee in personal liability. The holders of
a majority in aggregate principal amount of the Notes at the time outstanding
may, on behalf of the holders of all of the Notes, waive any past default or
Event of Default hereunder and its consequences except (i) a
default in the payment of the principal of, premium, if any, or interest on the
Notes, (ii) a failure by the Company to convert any Notes as required by
this Indenture, (iii) a default in the payment of the redemption price on
the redemption date pursuant to Article 3, (iv) a default in the
payment of the repurchase price on the Fundamental Change Repurchase Date or
the Repurchase Date pursuant to Article 3 or (v) a default in respect
of a covenant or provisions hereof which under Article 11 cannot be
modified or amended without the consent of the holders of all Notes then
outstanding or each Note affected thereby. Upon any such waiver, the Company,
the Trustee and the holders of the Notes shall be restored to their former
positions and rights hereunder; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been
waived as permitted by this Section 8.07, said default or Event of Default
shall for all purposes of the Notes and this Indenture be deemed to have been
cured and to be not continuing; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.


 


Section 8.08 . Notice of Defaults . The Trustee shall,
within ninety calendar days after a Responsible Officer of the Trustee has
knowledge of the occurrence of a default, mail to all Noteholders, as the names
and addresses of such holders appear upon the Note Register, notice of all
defaults known to a Responsible Officer, unless such defaults shall have been
cured or waived before the giving of such notice; provided that except in the case of default in the payment
of the principal of, or premium, if any, or interest on any of the Notes, the
Trustee shall be protected in withholding such notice if and so long as a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Noteholders.


 


Section 8.09 . Undertaking to Pay Costs . All parties
to this Indenture agree, and each holder of any Note by his 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 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 and expenses, 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; provided that the provisions of this Section 8.09
(to the extent permitted by law) shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate more than ten percent in principal amount of the Notes
at the time outstanding determined in accordance with Section 10.04, or to
any suit instituted by any Noteholder for the enforcement of the


 


54

















 


payment of the principal of,
or premium, if any, or interest on any Note on or after the due date expressed
in such Note or to any suit for the enforcement of the right to convert any
Note in accordance with the provisions of Article 15.


 


ARTICLE 9


THE TRUSTEE


 


Section 9.01
. Duties and Responsibilities
of Trustee . The Trustee,
prior to the occurrence of an Event of Default and after the curing of all
Events of Default which may have occurred, undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture. In case
an Event of Default has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.


 


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:


 


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


 


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


 


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


 


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


 


(c) the Trustee shall
not be liable with respect to any action taken or omitted to be taken by it in
good faith in accordance with the written direction of the holders of not


 


55

















 


less than a majority in
principal amount of the Notes at the time outstanding determined as provided in
Section 10.04 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
therein provided, every provision of this Indenture relating to the conduct or
affecting the liability of, or affording protection to, the Trustee shall be
subject to the provisions of this Section;


 


(e) the Trustee shall
not be liable in respect of any payment (as to the correctness of amount,
entitlement to receive or any other matters relating to payment) or notice
effected by the Company or any Paying Agent (other than the Trustee) or any
records maintained by any co-registrar (other than the Trustee) with respect to
the Notes;


 


(f) if any party fails
to deliver a notice relating to an event the fact of which, pursuant to this
Indenture, requires notice to be sent to the Trustee, the Trustee may
conclusively rely on its failure to receive such notice as reason to act as if
no such event occurred unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless the Trustee has otherwise received written notice
thereof; and


 


(g) the Trustee shall
not be deemed to have knowledge of any Event of Default hereunder unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless the
Trustee shall have been notified in writing of such Event of Default by the
Company or a holder of Notes.


 


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


 


Section 9.02
. Reliance on Documents, Opinions, etc.
Except as otherwise
provided in Section 9.01:


 


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


 


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


 


56

















 


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


 


(d) the Trustee shall
be under no obligation to exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of any of the Noteholders
pursuant to the provisions of this Indenture, unless such Noteholders shall
have offered to the Trustee reasonable security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby;


 


(e) the Trustee shall
not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or document,
but the Trustee 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;


 


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


 


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


 


(h) the rights,
privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and each agent, custodian and other Person employed to act hereunder;


 


(i) the Trustee may
request that the Company deliver an Officers’ Certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which Officers’ Certificate may
be signed by any person authorized to sign an Officers’ Certificate, including
any person specified as so authorized in any such certificate previously
delivered and not superseded; and


 


(j) any permissive
right or authority granted to the Trustee shall not be construed as a mandatory
duty.


 


Section 9.03 . No Responsibility for Recitals, etc. The
recitals contained herein and in the Notes (except in the Trustee’s certificate
of authentication) shall be taken as


 


57

















 


the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Notes. The Trustee shall not be accountable for the
use or application by the Company of any Notes or the proceeds of any Notes
authenticated and delivered by the Trustee in conformity with the provisions of
this Indenture.


 


Section 9.04 . Trustee, Paying Agents, Conversion Agents or
Registrar May Own Notes . The Trustee, any Paying Agent, any
conversion agent or Note Registrar, in its individual or any other capacity,
may become the owner or pledgee of Notes with the same rights it would have if
it were not Trustee, Paying Agent, conversion agent or Note Registrar.


 


Section 9.05 . Monies to be Held in Trust . Subject to
the provisions of Section 13.02, all monies received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received. Money held by the Trustee in trust hereunder need not
be segregated from other funds except to the extent required by law. Except as
otherwise provided herein, the Trustee shall be under no liability for interest
on any money received by it hereunder except as may be agreed in writing from
time to time by the Company and the Trustee.


 


Section 9.06 . Compensation and Expenses of Trustee .
The Company covenants and agrees to pay to the Trustee from time to time, and
the Trustee shall be entitled to, such compensation for all services rendered
by it hereunder in any capacity (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) as mutually
agreed to from time to time in writing between the Company and the Trustee, and
the Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances reasonably incurred or made by
the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and of all Persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence, willful misconduct, recklessness or bad faith. The Company also
covenants to indemnify the Trustee and any predecessor Trustee (or any officer,
director or employee of the Trustee), in any capacity under this Indenture and
any authenticating agent for, and to hold them harmless against, any and all
loss, liability, damage, claim or reasonable expense including taxes (other
than taxes based on the income of the Trustee) incurred without negligence,
willful misconduct, recklessness or bad faith on the part of the Trustee or
such officers, directors, employees or authenticating agent, as the case may
be, and arising out of or in connection with the acceptance or administration
of this trust or in any other capacity hereunder, including the reasonable
costs and expenses of defending themselves against any claim (whether asserted
by the Company, any holder or any other Person) of liability in the premises. The
obligations of the Company under this Section 9.06 to compensate or
indemnify the Trustee and to pay or reimburse the Trustee for reasonable
expenses, disbursements and


 


58

















 


advances shall be secured by
a lien prior to that of the Notes 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 Notes. The obligation of the Company under this Section shall
survive the satisfaction and discharge of this Indenture.


 


When the Trustee and its
agents and any authenticating agent incur expenses or render services after an
Event of Default specified in Section 8.01(e) or (e) with
respect to the Company occurs, the expenses and the compensation for the
services are intended to constitute reasonable expenses of administration under
any bankruptcy, insolvency or similar laws.


 


Section 9.07 . Officers’ Certificate as Evidence .
Except as otherwise provided in Section 9.01, whenever in the administration
of the provisions of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or omitting
any action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of gross negligence, bad
faith, recklessness or willful misconduct on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers’ Certificate delivered
to the Trustee.


 


Section 9.08 . Conflicting Interests of Trustee . If
the Trustee has or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.


 


Section 9.09 . Eligibility of Trustee . There shall at
all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000 (or if such Person is a member of a bank
holding company system, its bank holding company shall have a combined capital
and surplus of at least $50,000,000). If such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of any supervising or
examining authority, then for the purposes of this Section the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 9.09, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.


 


Section 9.10 . Resignation or Removal of Trustee .


 


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


 


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Noteholders, the resigning
Trustee may, upon ten Business Days’ notice to the Company and the Noteholders,
appoint a successor identified in such notice or may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of a
successor trustee, or, if any Noteholder who has been a bona fide holder of a
Note or Notes for at least six months may, subject to the provisions of Section 8.09,
on behalf of itself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.


 


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


 


(i) the
Trustee shall fail to comply with Section 9.08 after written request
therefor by the Company or by any Noteholder who has been a bona fide holder of
a Note or Notes for at least six months; or


 


(ii) the
Trustee shall cease to be eligible in accordance with the provisions of Section 9.09
and shall fail to resign after written request therefor by the Company or by
any such Noteholder; or


 


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


 


then, in any such case, the
Company may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the Trustee so removed and one copy
to the successor trustee, or, subject to the provisions of Section 8.09,
any Noteholder who has been a bona fide holder of a Note or Notes for at least
six months may, on behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee; provided
that if no successor Trustee shall have been appointed and have accepted
appointment sixty calendar days after either the Company or the Noteholders has
removed the Trustee, or the Trustee resigns, the Trustee so removed may
petition, at the expense of the Company, any court of competent jurisdiction
for an appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.


 


(c) The holders of a
majority in aggregate principal amount of the Notes at the time outstanding may
at any time remove the Trustee and nominate a successor trustee which shall be
deemed appointed as successor trustee unless, within ten calendar days after
notice to the Company of such nomination, the Company objects thereto, in which
case the Trustee so removed or any Noteholder, or if such Trustee so removed or
any Noteholder fails to act, the Company, upon the terms and conditions and
otherwise as in


 


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Section 9.10(a) provided,
may petition any court of competent jurisdiction for an appointment of a
successor trustee.


 


(d) Any resignation or
removal of the Trustee and appointment of a successor trustee pursuant to any
of the provisions of this Section 9.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 9.11.


 


(e) Notwithstanding the
replacement of the Trustee pursuant to this Section, the Company’s obligations
under Section 9.06 shall continue for the benefit of the retiring Trustee.


 


Section 9.11 . Acceptance by Successor Trustee  . Any successor trustee appointed as
provided in Section 9.10 shall execute, acknowledge and deliver to the
Company and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as trustee herein; but, nevertheless, on the written request of the
Company or of the successor trustee, the trustee ceasing to act shall, upon
payment of any amount then due it pursuant to the provisions of Section 9.06,
execute and deliver an instrument transferring to such successor trustee all
the rights and powers of the trustee so ceasing to act. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property and funds held or collected by
such trustee as such, except for funds held in trust for the benefit of holders
of particular Notes, to secure any amounts then due it pursuant to the
provisions of Section 9.06.


 


No successor trustee shall
accept appointment as provided in this Section 9.11 unless, at the time of
such acceptance, such successor trustee shall be qualified under the provisions
of Section 9.08 and be eligible under the provisions of Section 9.09.


 


Upon acceptance of
appointment by a successor trustee as provided in this Section 9.11, the
Company (or the former trustee, at the written direction of the Company) shall
mail or cause to be mailed notice of the succession of such trustee hereunder
to the holders of Notes at their addresses as they shall appear on the Note
Register. If the Company fails to mail such notice within ten (10) calendar
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.


 


Section 9.12 . Succession by Merger  . Any corporation into which the Trustee may
be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Trustee (including any trust created by
this Indenture), shall be the


 


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successor to the Trustee
hereunder without the execution or filing of any paper or any further act on
the part of any of the parties hereto, provided
that in the case of any corporation succeeding to all or substantially all of
the corporate trust business of the Trustee, such corporation shall be
qualified under the provisions of Section 9.08 and eligible under the provisions
of Section 9.09.


 


In case at the time such
successor to the Trustee shall succeed to the trusts created by this Indenture,
any of the Notes shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee or authenticating agent appointed by such predecessor
trustee, and deliver such Notes so authenticated; and in case at that time any
of the Notes shall not have been authenticated, any successor to the Trustee or
any authenticating agent appointed by such successor trustee may authenticate
such Notes in the name of the successor trustee; and in all such cases such
certificates shall have the full force that is provided in the Notes or in this
Indenture; provided that the
right to adopt the certificate of authentication of any predecessor Trustee or
authenticate Notes in the name of any predecessor Trustee shall apply only to
its successor or successors by merger, conversion or consolidation.


 


Section 9.13 . Preferential Collection of Claims  . If and when the Trustee shall be or
become a creditor of the Company (or any other obligor upon the Notes), the
Trustee shall be subject to the provisions of the Trust Indenture Act regarding
the collection of the claims against the Company (or any such other obligor).


 


ARTICLE 10


THE
NOTEHOLDERS


 


Section 10.01 . Action by Noteholders  . Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Notes may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action, the holders of
such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by
Noteholders in person or by agent or proxy appointed in writing, or (b) by
the record of the holders of Notes voting in favor thereof at any meeting of
Noteholders, or (c) by a combination of such instrument or instruments and
any such record of such a meeting of Noteholders. Whenever the Company or the
Trustee solicits the taking of any action by the holders of the Notes, the
Company or the Trustee may fix in advance of such solicitation a date as the
record date for determining holders entitled to take such action. The record
date shall be not more than fifteen calendar days prior to the date of
commencement of solicitation of such action.


 


Section 10.02 . Proof of Execution by Noteholders  . Subject to the provisions of Sections
9.01 and 9.02, proof of the execution of any instrument by a Noteholder or its


 


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agent or proxy shall be
sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The holding of Notes shall be proved by the
registry of such Notes or by a certificate of the Note Registrar.


 


Section 10.03 . Absolute Owners The Company, the
Trustee, any Paying Agent, any conversion agent and any Note Registrar may deem
the Person in whose name such Note shall be registered upon the Note Register
to be, and may treat it as, the absolute owner of such Note (whether or not
such Note shall be overdue and notwithstanding any notation of ownership or
other writing thereon made by any Person other than the Company or any Note
Registrar) for the purpose of receiving payment of or on account of the
principal of, premium, if any, and interest on such Note, for conversion of
such Note and for all other purposes; and neither the Company nor the Trustee
nor any Paying Agent nor any conversion agent nor any Note Registrar shall be
affected by any notice to the contrary. All such payments so made to any holder
for the time being, or upon his order, shall be valid, and, to the extent of
the sum or sums so paid, effectual to satisfy and discharge the liability for
monies payable upon any such Note.


 


Section 10.04 . Company-Owned Notes Disregarded  . In determining whether the holders of
the requisite aggregate principal amount of Notes have concurred in any
direction, consent, waiver or other action under this Indenture, Notes which
are owned by the Company or any other obligor on the Notes or any Affiliate of
the Company or any other obligor on the Notes shall be disregarded and deemed
not to be outstanding for the purpose of any such determination; provided that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, consent, waiver or other action, only Notes which a Responsible
Officer knows are so owned shall be so disregarded. Notes so owned which have
been pledged in good faith may be regarded as outstanding for the purposes of
this Section 10.04 if the pledgee shall establish to the satisfaction of
the Trustee the pledgee’s right to vote such Notes and that the pledgee is not
the Company, any other obligor on the Notes or any Affiliate of the Company or
any such other obligor. In the case of a dispute as to such right, any decision
by the Trustee taken upon the advice of counsel shall be full protection to the
Trustee. Upon request of the Trustee, the Company shall furnish to the Trustee
promptly an Officers’ Certificate listing and identifying all Notes, if any,
known by the Company to be owned or held by or for the account of any of the
above described Persons, and, subject to Section 9.01, the Trustee shall
be entitled to accept such Officers’ Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Notes not listed therein are
outstanding for the purpose of any such determination.


 


Section 10.05 . Revocation of Consents; Future Holders Bound
. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 10.01, of the
taking of any action by the holders of the percentage in aggregate principal
amount of the Notes specified in this Indenture in connection with such action,
any holder of a Note which is shown by the evidence to be included in the Notes
the holders of which have consented to


 


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such action may, by filing
written notice with the Trustee at its Corporate Trust Office and upon proof of
holding as provided in Section 10.02, revoke such action so far as
concerns such Note. Except as aforesaid, any such action taken by the holder of
any Note shall be conclusive and binding upon such holder and upon all future
holders and owners of such Note and of any Notes issued in exchange or
substitution therefor, irrespective of whether any notation in regard thereto
is made upon such Note or any Note issued in exchange or substitution therefor.


 


ARTICLE 11


SUPPLEMENTAL INDENTURES


 


Section 11.01 . Supplemental Indentures Without Consent of
Noteholders  . The
Company, when authorized by the resolutions of the Board of Directors, and the
Trustee may, from time to time, and at any time enter into an indenture or
indentures supplemental without the consent of the holders of the Notes hereto
for one or more of the following purposes:


 


(a) make provision with
respect to the conversion rights of the holders of Notes and the repurchase
obligations of the Company in connection with a Fundamental Change pursuant to
the requirements of Section 15.06;


 


(b) to convey,
transfer, assign, mortgage or pledge to the Trustee, as security for the Notes,
any property or assets;


 


(c) to evidence the
succession of another Person to the Company, or successive successions, and the
assumption by the successor Person of the covenants, agreements and obligations
of the Company pursuant to Article 12;


 


(d) to add to the
covenants of the Company such further covenants, restrictions or conditions as
the Board of Directors and the Trustee shall consider to be for the benefit of
the holders of Notes, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions or
conditions a default or an Event of Default permitting the enforcement of all
or any of the several remedies provided in this Indenture as herein set forth; provided that in respect of any such
additional covenant, restriction or condition, such supplemental indenture may
provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default;


 


(e) surrender any right
or power herein conferred upon the Company;


 


(f) to cure any
ambiguity or to correct or supplement any provision contained herein or in any
supplemental indenture that may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture provided that such


 


64

















 


action does not adversely
affect the interests of the holders of the Notes in any material respect;


 


(g) add or modify any
provisions herein with respect to matters or questions arising hereunder which
the Company may deem necessary or desirable and that shall not be inconsistent
with the provisions of this Indenture; provided,
that such change or modification pursuant to this clause (g) does not, in
the good faith determination of the Board of Directors (as evidenced by a
resolution of the Board of Directors), adversely affect the interests of the
holders of the Notes in any material respect;


 


(h) increase the
Conversion Rate; provided, however
, that such increase in the Conversion Rate shall not adversely affect the
interests of the holders of the Notes (after taking into account tax and other
consequences of such increase);


 


(i) make any changes or
modifications necessary in connection with the registration of the Notes under
the Securities Act as contemplated in the Registration Rights Agreement; provided that such change or modification
pursuant to this clause (i) does not adversely affect the interests of the
holders of the Notes in any material respect;


 


(j) to evidence and
provide for the acceptance of appointment hereunder by a successor Trustee with
respect to the Notes; or


 


(k) to modify,
eliminate or add to the provisions of this Indenture to such extent as shall be
necessary to effect or maintain the qualification of this Indenture under the
Trust Indenture Act, or under any similar federal statute hereafter enacted.


 


Upon the written request of
the Company, accompanied by a copy of the resolutions of the Board of Directors
certified by its Secretary or Assistant Secretary authorizing the execution of
any supplemental indenture, the Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations that may be therein contained
and to accept the conveyance, transfer and assignment of any property
thereunder, but the Trustee shall not be obligated to, but may in its
discretion, enter into any supplemental indenture that affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.


 


Any supplemental indenture
authorized by the provisions of this Section 11.01 may be executed by the
Company and the Trustee without the consent of the holders of any of the Notes
at the time outstanding, notwithstanding any of the provisions of Section 11.02.


 


Section 11.02 . Supplemental Indenture With Consent of Noteholders
. With the consent (evidenced as
provided in Article 10) of the holders of a majority in aggregate
principal amount of the Notes at the time outstanding, the Company, when
authorized by the resolutions of the Board of Directors, and the Trustee may,
from time to time and at


 


65

















 


any time, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or any supplemental indenture or modifying in any manner the
rights of the holders of the Notes; provided
that no such supplemental indenture shall, without the consent of the holder of
each Note so affected:


 


(i) extend
the fixed maturity of any Note;


 


(ii) reduce
the rate or extend the time for payment of interest on any Note;


 


(iii) reduce
the principal amount of any Note or premium, if any, on any Note;


 


(iv) reduce
any amount payable on redemption or repurchase of any Note;


 


(v) impair
the right of any holder to institute suit for the payment of any Note;


 


(vi) make
the principal of any Note, premium, if any, on any Note or interest on any Note
payable in any coin or currency other than that provided in the Notes;


 


(vii) change
the obligation of the Company to redeem any Note called for redemption on a
redemption date in a manner adverse to the holders of Notes;


 


(viii) change
the obligation of the Company to repurchase any Note upon a Fundamental Change
in a manner adverse to the holders of Notes;


 


(ix) change
the obligation of the Company to repurchase any Note at the option of a holder
on a Repurchase Date in a manner adverse to the holders of Notes;


 


(x) affect
the right of a holder to convert any Note or to reduce the cash or number of
shares of Common Stock, if any, or any other property receivable upon
conversion pursuant to the terms set forth herein, including Section 15.06;


 


(xi)
modify any of the provisions of this Section 11.02 or Section 8.07,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the holder of each Note so affected;


 


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(xii)
change any obligation of the Company to maintain an office or agency in New York
City as set forth in Section 6.02;


 


(xiii)
modify in any material respect the subordination provisions in Article 4
in a manner adverse to the holders; or


 


(xiv)
reduce the aforesaid percentage of Notes, the holders of which are required to
consent to any such supplemental indenture, without the consent of each holder
of Notes so affected.


 


Upon the written request of
the Company, accompanied by a copy of the resolutions of the Board of Directors
certified by the Company’s Secretary or Assistant Secretary authorizing the
execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Noteholders as aforesaid, the Trustee
shall join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.


 


It shall not be necessary
for the consent of the Noteholders under this Section 11.02 to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.


 


Section 11.03 . Effect of Supplemental Indenture  . Any supplemental indenture executed
pursuant to the provisions of this Article 11 shall comply with the Trust
Indenture Act, as then in effect, provided
that this Section 11.03 shall not require such supplemental indenture or
the Trustee to be qualified under the Trust Indenture Act prior to the time, if
ever, such qualification is in fact required under the terms of the Trust
Indenture Act or the Indenture has been qualified under the Trust Indenture
Act, nor shall it constitute any admission or acknowledgment by any party to
such supplemental indenture that any such qualification is required prior to
the time, if ever, such qualification is in fact required under the terms of
the Trust Indenture Act or the Indenture has been qualified under the Trust
Indenture Act. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article 11, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitation of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of Notes shall thereafter be
determined, exercised and enforced hereunder, subject in all respects to such
modifications and amendments and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.


 


Section 11.04 . Notation on Notes  . Notes authenticated and delivered after
the execution of any supplemental indenture pursuant to the provisions of this Article 11
may bear a notation in form approved by the Trustee as to any matter provided
for in such


 


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supplemental indenture. If
the Company or the Trustee shall so determine, new Notes so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture
may, at the Company’s expense, be prepared and executed by the Company,
authenticated by the Trustee (or an authenticating agent duly appointed by the
Trustee pursuant to Section 16.11) and delivered in exchange for the Notes
then outstanding, upon surrender of such Notes then outstanding.


 


Section 11.05 . Evidence of Compliance of Supplemental Indenture to
be Furnished to Trustee  .
Prior to entering into any supplemental indenture pursuant to this Article 11,
the Trustee shall be provided with an Officers’ Certificate and an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed
pursuant hereto complies with the requirements of this Article 11 and is
otherwise authorized or permitted by this Indenture.


 


ARTICLE 12


CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE


 


Section 12.01 . Company May Consolidate on Certain Terms
. Subject to the provisions of Section 12.02,
the Company shall not, in a single transaction or a series of related
transactions, consolidate or merge with or into any other Person or Persons
(whether or not affiliated with the Company), nor shall the Company sell,
convey, transfer or lease the property and assets of the Company substantially
as an entirety, to any other Person (whether or not affiliated with the
Company), unless: (i) the Company is the continuing corporation, or the
resulting, surviving or transferee Person (if other than the Company) is a
corporation or limited liability company organized and existing under the laws
of the United States of America, any state thereof or the District of Columbia;
(ii) upon any such consolidation, merger, sale, conveyance, transfer or
lease, the 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 and
observance of all of the covenants and conditions of this Indenture to be
performed or satisfied by the Company, shall be expressly assumed by a
supplemental indenture reasonably satisfactory in form to the Trustee and all
of the obligations of the Company under the Registration Rights Agreement shall
be expressly assumed by a supplemental agreement, in each case, executed and
delivered to the Trustee by the Person (if other than the Company) formed by
such consolidation, or into which the Company shall have been merged, or by the
Person that shall have acquired or leased such property, and such supplemental
indenture shall provide for the applicable conversion rights set forth in Section 15.06;
(iii) immediately after giving effect to the transaction described above,
no default or Event of Default, has occurred and is continuing; and (iv) the
Company has delivered to the Trustee the Officers’ Certificate and Opinion of
Counsel, if any, requested pursuant to Section 12.03.


 


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Section 12.02 . Successor to be Substituted  . In case of any such consolidation,
merger, sale, conveyance, transfer or lease in which the Company is not the
continuing corporation and upon the assumption by the successor Person, by
supplemental indenture, executed and delivered to the Trustee and reasonably
satisfactory in form to the Trustee, of the 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 and observance of all of the covenants and
conditions of this Indenture to be performed or satisfied by the Company, and
by supplemental agreement, executed and delivered to the Trustee and reasonably
satisfactory in form to the Trustee, of all of the obligations of the Company
under the Registration Rights Agreement, such successor Person shall succeed to
and be substituted for the Company, with the same effect as if it had been
named herein as the party of this first part, and Advanced Medical Optics, Inc.
shall be discharged from its obligations under the Notes, this Indenture and
the Registration Rights Agreement. Such successor Person thereupon may cause to
be signed, and may issue either in its own name or in the name of Advanced
Medical Optics, Inc. any or all of the Notes, issuable hereunder that
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor Person instead of the Company
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver, or cause to be
authenticated and delivered, any Notes that previously shall have been signed
and delivered by the officers of the Company to the Trustee for authentication,
and any Notes that such successor Person thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Notes so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Notes theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Notes had been issued at the date of the
execution hereof. In the event of any such consolidation, merger, sale,
conveyance, transfer or lease, upon compliance with this Article 12 the
Person named as the “ Company ” in
the first paragraph of this Indenture or any successor that shall thereafter
have become such in the manner prescribed in this Article 12 may be
dissolved, wound up and liquidated at any time thereafter and such Person shall
be discharged from its liabilities as obligor and maker of the Notes and from
its obligations under this Indenture.


 


In case of any such
consolidation, merger, sale, conveyance, transfer or lease, such changes in
phraseology and form (but not in substance) may be made in the Notes thereafter
to be issued as may be appropriate.


 


Section 12.03 . Opinion of Counsel to be Given Trustee  . Prior to execution of any supplemental
indenture pursuant to this Article 12, if so requested by the Trustee, the
Trustee shall receive an Officers’ Certificate and an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale, conveyance,
transfer or lease and any such assumption complies with the provisions of this Article 12.


 


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ARTICLE 13


SATISFACTION AND DISCHARGE OF
INDENTURE


 


Section 13.01 . Discharge of Indenture  . When (a) the Company shall deliver
to the Trustee for cancellation all Notes theretofore authenticated (other than
any Notes that have been destroyed, lost or stolen and in lieu of or in
substitution for which other Notes shall have been authenticated and delivered)
and not theretofore canceled, or (b) all the Notes not theretofore
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 the Company shall
deposit with the Trustee, in trust, funds sufficient to pay at maturity or upon
redemption all of the Notes (other than any Notes that shall have been
mutilated, destroyed, lost or stolen and in lieu of or in substitution for
which other Notes shall have been authenticated and delivered) not theretofore
canceled or delivered to the Trustee for cancellation, including principal and
premium, if any, and interest due or to become due to such date of maturity or
redemption date, as the case may be, accompanied by a verification report, as
to the sufficiency of the deposited amount, from an independent certified
accountant or other financial professional satisfactory to the Trustee, and if
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 (4) remaining rights of registration of transfer, substitution and
exchange and conversion of Notes, (5) rights hereunder of Noteholders to
receive payments of principal of and premium, if any, and interest on the Notes
and the other rights, duties and obligations of Noteholders, as beneficiaries
hereof with respect to the amounts, if any, so deposited with the Trustee and (iii) the
rights, obligations and immunities of the Trustee hereunder), and the Trustee,
on written demand of the Company accompanied by an Officers’ Certificate and an
Opinion of Counsel as required by Section 16.05 and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture; the Company, however, hereby
agrees to reimburse the Trustee 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 Notes.


 


Section 13.02 . Deposited Monies to be Held in Trust by Trustee
. Subject to Section 13.04,
all monies deposited with the Trustee pursuant to Section 9.05, shall be
held in trust for the sole benefit of the Noteholders, and such monies shall be
applied by the Trustee to the payment, either directly or through any Paying
Agent (including the Company if acting as its own Paying Agent), to the holders
of the particular Notes 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, premium, if any, and interest. Moneys so held in trust shall not be
subject to the provisions of Article 4. All moneys deposited with the
Trustee pursuant to Section 9.05 (and held by it or any Paying Agent) for
the payment of Notes subsequently converted shall be returned to the Company
upon


 


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request. The Trustee is not
responsible to anyone for interest on any deposited funds except as agreed in
writing.


 


Section 13.03 . Paying Agent to Repay Monies Held  . Upon the satisfaction and discharge of
this Indenture, all monies then held by any Paying Agent (other than the Trustee)
shall, upon written request of the Company, be repaid to it or paid to the
Trustee, and thereupon such Paying Agent shall be released from all further
liability with respect to such monies.


 


Section 13.04 . Return of Unclaimed Monies  . Subject to the requirements of
applicable law, any monies deposited with or paid to the Trustee for payment of
the principal of, premium, if any, or interest on Notes and not applied but
remaining unclaimed by the holders of Notes for two years after the date upon which
the principal of, premium, if any, or interest on such Notes, as the case may
be, shall have become due and payable, shall be repaid to the Company by the
Trustee on demand and all liability of the Trustee shall thereupon cease with
respect to such monies; and the holder of any of the Notes shall thereafter
look only to the Company for any payment that such holder may be entitled to
collect unless an applicable abandoned property law designates another Person.


 


Section 13.05 . Reinstatement  . If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 13.02 by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company’s obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 13.01 until such time as the Trustee or the Paying
Agent is permitted to apply all such money in accordance with Section 13.02;
provided that if the Company
makes any payment of principal of or premium, if any, or interest on any Note
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the holders of such Notes to receive such payment from the money
held by the Trustee or Paying Agent.


 


ARTICLE 14


IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


 


Section 14.01 . Indenture and Notes Solely Corporate Obligations
. No recourse for the payment of
the principal of or, premium, if any, or interest on any Note, or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon
any obligation, covenant or agreement of the Company in this Indenture or in
any supplemental indenture or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, member, manager, employee, agent, officer, director or subsidiary,
as such, past, present or future, of the Company or any of the Company’s
subsidiaries or of any successor thereto, either directly or through the
Company or any of the Company’s subsidiaries or any successor thereto, whether
by virtue of any constitution, statute or rule of law, or by the


 


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enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Notes.


 


ARTICLE 15


CONVERSION OF NOTES


 


Section 15.01
. Right to Convert  .


 


(a) Subject to and upon
compliance with the provisions of this Indenture, on or prior to the Trading
Day immediately preceding the Maturity Date, the holder of any Note not
previously redeemed or repurchased shall have the right, at such holder’s
option, to convert the principal amount of the Note, or any portion of such
principal amount which is a multiple of $1,000, into cash or, as provided
herein, cash and Common Stock, at the Conversion Rate in effect at such time,
by surrender of the Note so to be converted in whole or in part, together with
any required funds, under the circumstances and in the manner described in this
Article 15; provided , however , that at any time prior to the
close of business on the Trading Day preceding June 1, 2011, holders may
convert their Notes only upon occurrence of one of the following events:


 


(i) during
the five Business Days immediately following any five consecutive Trading-Day
period in which the Trading Price per $1,000 principal amount of the Notes for
each day of such five Trading-Day period was less than 103% of the product of
the Closing Sale Price of a share of Common Stock and the Conversion Rate in
effect on each such Trading Day;


 


(ii) as
provided in Section (b) of this Section 15.01; or


 


(iii) if
a Fundamental Change occurs, at any time beginning 15 calendar days prior to
the date announced by the Company as the anticipated effective date of the
Fundamental Change and until and including the date which is 15 calendar days
after the date that is the Effective Date (subject to expiration of such
conversion right if any holder has submitted any or all of its Notes for
repurchase as set forth under Section 3.05).


 


Notes and portions of Notes
that are to be redeemed pursuant to Article 3 shall be convertible by the
Holder thereof until 5:00 p.m., New York City Time, on the Trading Day
preceding the Redemption Date.


 


The Trustee (or other
conversion agent appointed by the Company) shall, on behalf of the Company,
determine on a daily basis during the time period specified in Section 15.01(a)(i) whether
the Notes shall be convertible as a result of the occurrence of an event
specified in clause (i) above and, if the Notes shall be so convertible,
the Trustee (or other conversion agent appointed by the Company) shall promptly
deliver to the


 


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Company and the Trustee (if
the Trustee is not the conversion agent) written notice thereof.


 


The Trustee (or other
conversion agent appointed by the Company) shall have no obligation to
determine the Trading Price under Section 15.01(a)(i) unless the
Company has requested that the Trustee make such a determination; and the
Company shall have no obligation to make such request unless so requested in
writing by a holder that provides the Company with reasonable evidence that the
Trading Price per $1,000 principal amount of Notes would be less than 103% of
the product of the Closing Sale Price of a share of Common Stock and the
Conversion Rate then in effect. If a holder submits such a request, the Company
shall instruct the Trustee (or other conversion agent) to determine the Trading
Price of the Notes beginning on the next Trading Day and on each successive
Trading Day until the Trading Price per $1,000 principal amount of Notes is
greater than or equal to 103% of the product of the Closing Sale Price of a
share of Common Stock and the Conversion Rate then in effect for five
consecutive Trading Days; provided
that the Trustee shall be under no duty or obligation to make the calculations
described in Section 15.01(a)(i) hereof or to determine whether the
Notes are convertible pursuant to such section. For the avoidance of doubt, the
Company shall make the calculations described in Section 15.01(a)(i) using
the Trading Price provided by the Trustee. If, at any point after the trading
price condition has been met, the Trading Price per $1,000 principal amount of
Notes is greater than 103% of the product of the Closing Sale Price of shares
of Common Stock and the Conversion Rate then in effect, the Company shall
notify the holders of Notes.


 


The Trustee shall be
entitled at its sole discretion to consult with the Company and to request the
assistance of the Company in connection with the Trustee’s duties and
obligations pursuant to Section 15.01(a)(i) hereof (including without
limitation the calculation or determination of the Closing Sale Price and the
Trading Price), and the Company agrees, if requested by the Trustee, to cooperate
with, and provide assistance to, the Trustee in carrying out its duties under
this Section 15.01; provided, however,
that nothing contained herein shall be construed to relieve the Trustee of its
duties pursuant to Section 15.01(a)(i) hereof.


 


(b) In addition, if:


 


(i) (6) the
Company distributes to all holders of Common Stock rights or warrants entitling
them (for a period expiring within 45 calendar days of the record date for the
determination of the stockholders entitled to receive such distribution) to
subscribe for or purchase shares of Common Stock, at a price per share less
than the average of the Closing Sale Price of a share of Common Stock for the
ten Trading Days immediately preceding, but not including, the declaration date
for such distribution, or (B) the Company distributes to all holders of
Common Stock, cash or other assets, debt securities or rights to purchase its
securities, where the Fair Market Value of such distribution per share


 


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of Common Stock exceeds 10%
of the Closing Sale Price of a share of Common Stock on the Trading Day
immediately preceding the declaration date for such distribution, then, in
either case, the holders shall have the right to convert Notes at any time on and
after the date that the Company gives notice to the holders of such
distribution, which shall be not less than 20 calendar days prior to the
Ex-Dividend Time for such distribution, until the earlier of 5:00 p.m.,
New York City time, on the Business Day immediately preceding, but not
including, the Ex-Dividend Time or the date the Company publicly announces that
such distribution will not take place; provided
that a holder of a Note may not convert its Notes pursuant to this Section 15.01(b)(i) if
the holder will otherwise participate in such distribution without conversion
as a result of holding the Notes; or


 


(ii) the
Company consolidates with or merges with or into another Person or is a party
to a binding share exchange or conveys, transfers, sells, leases or otherwise
disposes of all or substantially all of its properties and assets in each case
pursuant to which the Common Stock would be converted into cash, securities
and/or other property that does not also constitute a Fundamental Change, then
the holders shall have the right to convert Notes at any time beginning fifteen
calendar days prior to the date announced by the Company as the anticipated
effective date of the transaction and until and including the date that is
fifteen calendar days after the date that is the actual effective date of such
transaction. The Company will notify holders of Notes at least 20 days prior to
the anticipated effective date of such transaction. Upon conversion, holders of
the Notes will receive the Conversion Value as determined pursuant to clause (i) of
the third paragraph of Section 15.02. The Board of Directors shall
determine the anticipated effective date of the transaction, and such
determination shall be conclusive and binding on the holders and shall be
publicly announced by the Company and posted on its web site not later than two
Business Day prior to such 15 th day.


 


“ Ex-Dividend Time ” means, with respect to any distribution on
shares of Common Stock, the first date on which the shares of Common Stock
trade regular way on the principal securities market on which the shares of
Common Stock are then traded without the right to receive such distribution.


 


(c) Whenever the Notes
shall become convertible pursuant to this Section 15.01, the Company or,
at the Company’s request, the Trustee in the name and at the expense of the
Company, shall notify the holders of the event triggering such convertibility
in the manner provided in Section 16.03, and the Company shall also
publicly announce such information and publish it on the Company’s web site.
Any notice so given shall be conclusively presumed to have been duly given,
whether or not the holder receives such notice.


 


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(d) A Note in respect
of which a holder has delivered a Repurchase Notice exercising such holder’s
right to require the Company to repurchase such Note pursuant to Section 3.05
or 3.06 may be converted only if such Repurchase Notice is withdrawn in accordance
with Section 3.08 prior to 5:00 p.m., New York City time, on the
Business Day immediately preceding the Repurchase Date or the Fundamental
Change Repurchase Date, as applicable.


 


(e) A holder of Notes
is not entitled to any rights of a holder of Common Stock until such holder has
converted his Notes and received upon conversion thereof shares of Common
Stock, and only to the extent such Notes are deemed to have been converted to
Common Stock under this Article 15.


 


Section 15.02 . Exercise of Conversion Right ; No Adjustment for Interest or Dividends  . In order to exercise the conversion
right with respect to any Note in certificated form, the Company must receive
at the office or agency of the Company maintained for that purpose in the City
of New York or, at the option of such holder, the Corporate Trust Office, such
Note with the original or facsimile of the form entitled “ Conversion Notice ” on the reverse thereof,
duly completed and manually signed, together with such Notes duly endorsed for
transfer, accompanied by the funds, if any, required by this Section 15.02.
Such notice shall also state the name or names (with address or addresses) in
which the certificate or certificates for shares of Common Stock which shall be
issuable on such conversion shall be issued, and shall be accompanied by
transfer or similar taxes, if required pursuant to Section 15.07.


 


In order to exercise the
conversion right with respect to any interest in a Global Note, the beneficial
holder must complete, or cause to be completed, the appropriate instruction
form for conversion pursuant to the Depositary’s book-entry conversion program;
deliver, or cause to be delivered, by book-entry delivery an interest in such
Global Note; furnish appropriate endorsements and transfer documents if
required by the Company or the Trustee or conversion agent; and pay the funds,
if any, required by this Section 15.02 and any transfer taxes if required
pursuant to Section 15.07.


 


If the Company is required
to issue shares of Common Stock upon settlement in accordance with Section 15.12,
as promptly as practicable after satisfaction of the requirements for
conversion set forth above, subject to compliance with any restrictions on
transfer if shares issuable on conversion are to be issued in a name other than
that of the Noteholder (as if such transfer were a transfer of the Note or
Notes (or portion thereof) so converted, and in accordance with the time
periods set forth herein, the Company shall issue and shall deliver to such
Noteholder at the office or agency maintained by the Company for such purpose
pursuant to Section 6.02, a certificate or certificates for the number of
full shares of Common Stock (if any) issuable upon the conversion of such Note
or portion thereof as determined by the Company in accordance with the
provisions of Section 15.12 (or in the case of Notes submitted for
conversion in connection with a Fundamental Change pursuant to Section 15.01(a)(iii) on
or after the


 


75

















 


record date for receiving
distributions in connection with the Fundamental Change, or if earlier, the
Effective Date, the Conversion Value pursuant to Section 15.12 shall be
determined based on the kind and amount of cash, securities and other assets or
property that a holder of a number of shares of Common Stock equal to the
Conversion Rate would have owned or been entitled to receive in such
transaction; and provided further that if the determination date is the record
date, the holder shall receive the Conversion Value on the Effective Date, (ii) in
the case of Notes submitted for conversion in connection with a Fundamental
Change pursuant to Section 15.01(a)(iii), if the Make Whole Amount is
payable pursuant to Section 15.13, cash in respect of any accrued but
unpaid interest to, but excluding, the Conversion Date, payable on the date the
other consideration due is payable and (iii) a check or cash in respect of
any fractional interest in respect of a share of Common Stock arising upon such
conversion, calculated by the Company as provided in Section 15.03. The
cash, and, if applicable, a certificate or certificates for the number of full
shares of Common Stock into which the Notes are converted (and cash in lieu of
fractional shares) will be delivered to a converting holder after satisfaction
of the requirements for conversion set forth above, in accordance with Section 15.12.


 


Each conversion shall be
deemed to have been effected as to any such Note (or portion thereof) on the
date on which the requirements set forth above in this Section 15.02 have
been satisfied as to such Note (or portion thereof) or, if later, the
Determination Date (the “ Conversion Date
”), and the Person in whose name any certificate or certificates for shares of
Common Stock shall be issuable upon such conversion shall be deemed to have
become on said date the holder of record of the shares represented thereby; provided that any such surrender on any
date when the stock transfer books of the Company shall be closed shall
constitute the Person in whose name the certificates are to be issued as the
record holder thereof for all purposes on the next succeeding day on which such
stock transfer books are open, but such conversion shall be at the Conversion
Rate in effect on the Conversion Date.


 


Any Note or portion thereof
surrendered for conversion during the period from 5:00 p.m., New York City
time, on the Record Date for any interest payment date to 5:00 p.m., New
York City time, on the Business Day preceding the applicable interest payment
date shall be accompanied by payment, in immediately available funds or other
funds acceptable to the Company, of an amount equal to the interest otherwise
payable on such interest payment date on the principal amount being converted; provided that no such payment need be made
(1) if a holder converts its Notes in connection with a redemption and the
Company has specified a redemption date that is after a Record Date and on or
prior to the corresponding interest payment date, (2) if a holder converts
its Notes in connection with a Fundamental Change and the Company has specified
a Fundamental Change Repurchase Date that is after a Record Date and on or
prior to the corresponding interest payment date or (3) to the extent of
any overdue interest, if any overdue interest exists at the time of conversion
with respect to such Note. Except as otherwise provided above in this Article 15,
no payment or other adjustment shall be


 


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made for interest accrued on
any Note converted or for dividends on any shares issued upon the conversion of
such Note as provided in this Article 15. If a holder exercises its
conversion right pursuant to Section 15.01(a)(iii) and the Make Whole
Amount is payable pursuant to Section 15.13, such holder shall be entitled
to accrued and unpaid interest on the converted Notes to, but excluding, the
Conversion Date, which interest shall be payable in cash. In addition,
notwithstanding the foregoing, in the case of Notes submitted for conversion in
connection with a Fundamental Change, such Notes shall continue to represent
the right to receive the Make Whole Amount, if any, payable pursuant to Section 15.13,
until such Make Whole Amount is so paid.


 


Upon the conversion of an
interest in a Global Note, the Trustee (or other conversion agent appointed by
the Company), or the Custodian at the direction of the Trustee (or other
conversion agent appointed by the Company), shall make a notation on such
Global Note as to the reduction in the principal amount represented thereby.
The Company shall notify the Trustee in writing of any conversions of Notes
effected through any conversion agent other than the Trustee.


 


Except with respect to a
conversion of a Note in connection with a Fundamental Change pursuant to which
a Make Whole Amount will be payable, upon the conversion of a Note, the accrued
but unpaid interest and accrued Tax Original Issue Discount attributable to the
period from the issue date of the Note to the Conversion Date, with respect to
the converted Note, shall not be cancelled, extinguished or forfeited, but
rather shall be deemed to be paid in full to the holder thereof through
delivery of cash and, if applicable, shares of Common Stock (together with the
cash payment, if any in lieu of fractional shares) in exchange for the Note
being converted pursuant to the provisions hereof; and the cash and Fair Market
Value of any shares of Common Stock (together with any such cash payment in
lieu of fractional shares) shall be treated as delivered, to the extent
thereof, first in exchange for and in satisfaction of our obligation to pay the
principal amount of the converted Note, the accrued but unpaid interest, and
accrued Tax Original Issue Discount through the Conversion Date from the issue
date, and the balance, if any, the cash and the Fair Market Value of any Common
Stock (and any such cash payment) shall be treated as issued in exchange for
and in satisfaction of the right to convert the Note being converted pursuant
to the provisions hereof.


 


In case any Note of a
denomination greater than $1,000 shall be surrendered for partial conversion,
and subject to Section 2.04, the Company shall execute and the Trustee
shall authenticate and deliver to the holder of the Note so surrendered,
without charge to the holder, a new Note or Notes in authorized denominations
in an aggregate principal amount equal to the unconverted portion of the
surrendered Note.


 


Section 15.03 . Cash Payments in Lieu of Fractional Shares
.. No fractional shares of Common Stock or scrip certificates representing
fractional shares shall be issued upon conversion of Notes. If more than one
Note shall be surrendered for conversion at one time by the same holder, the
number of full shares that shall be issuable upon conversion


 


77

















 


shall be computed on the
basis of the aggregate principal amount of the Notes (or specified portions
thereof to the extent permitted hereby) so surrendered. If any fractional share
of stock would be issuable upon the conversion of any Note or Notes, the
Company shall make an adjustment and payment therefor in cash to the holder of
Notes at a price equal to the Closing Sale Price on the last Trading Day
immediately preceding the Conversion Date.


 


Section 15.04 . Conversion Rate . The initial Conversion
Rate for the Notes is 21.0084 shares of Common Stock per each $1,000 principal
amount of the Notes (herein called the “ Conversion
Rate ”), subject to adjustment as provided in Section 15.05.


 


Section 15.05 . Adjustment of Conversion Rate . The
Conversion Rate shall be adjusted from time to time by the Company 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 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 following
the date fixed for the determination of stockholders entitled to receive such
dividend or other distribution 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 date fixed for the determination of
stockholders entitled to receive such dividend or other distribution plus the
total number of shares of Common Stock 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 the date fixed for such determination,


 


such increase to become
effective immediately after the opening of business on the day following the
date fixed for such determination. For the purpose of this paragraph (a), the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company. The Company will not pay any
dividend or make any distribution on shares of Common Stock held in the
treasury of the Company. If any dividend or distribution of the type described
in this Section 15.05(a) is declared but not so paid or made, the
Conversion Rate shall again be adjusted to the Conversion Rate that would then
be in effect if such dividend or distribution had not been declared.


 


(b) In case the Company
shall issue rights or warrants to all holders of its outstanding shares of
Common Stock entitling them (for a period expiring within forty-five calendar
days after the date fixed for determination of stockholders entitled to receive
such rights or warrants) to subscribe for or purchase shares of Common Stock at
a price per share less than the Closing Sale Price on the Business Day
immediately


 


78

















 


preceding the date of
announcement of such issuance of 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 immediately prior to the date fixed
for determination of stockholders entitled to receive such rights or warrants
by a fraction,


 


(i) the
numerator of which shall be the number of shares of Common Stock outstanding on
the date fixed for determination of stockholders entitled to receive such
rights or warrants plus the total number of additional shares of Common Stock
offered for subscription or purchase, and


 


(ii) the
denominator of which shall be the sum of the number of shares of Common Stock
outstanding at the close of business on the date fixed for determination of
stockholders entitled to receive such rights or warrants plus the number of
shares that the aggregate offering price of the total number of shares so
offered would purchase at such Current Market Price.


 


Such adjustment shall be
successively made whenever any such rights or warrants are issued, and shall
become effective immediately after the opening of business on the day following
the date fixed for determination of stockholders entitled to receive such
rights or warrants; provided, that no adjustment to the Conversion Rate shall
be made if the holder will otherwise participate in such distribution without
conversion as a result of holding the Notes. To the extent that shares of
Common Stock are not delivered after the expiration of such rights or warrants,
the Conversion Rate shall be readjusted to the Conversion Rate that would then
be in effect had the adjustments made upon the issuance of such rights or
warrants been made on the basis of delivery of only the number of shares of
Common Stock actually delivered. If such rights or warrants are not so issued, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such date fixed for the determination of stockholders
entitled to receive such rights or warrants had not been fixed. In determining
whether any rights or warrants entitle the holders to subscribe for or purchase
shares of Common Stock at less than such 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 by the Company for such
rights or warrants and any amount payable on exercise or conversion thereof,
the value of such consideration, if other than cash, to be determined by the
Board of Directors.


 


(c) In case 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


 


79

















 


opening of business on the
day following the day upon which such subdivision or combination becomes
effective.


 


(d) In case the Company
shall, by dividend or otherwise, distribute to all holders of Common Stock
shares of any class of capital stock of the Company or evidences of its
indebtedness or assets (including securities, but excluding (i) any rights
or warrants referred to in Section 15.05(b), (ii) any dividends or
distributions paid exclusively in cash, (iii) any dividends or
distributions referred to in Section 15.05(a) or (iv) any
dividends or distributions in connection with a reclassification,
consolidation, merger, binding share exchange or sale to which Section 15.06
applies (any of the foregoing hereinafter in this Section 15.05(d)) called
the “ Securities ”)), then, in
each such case (unless the Company elects to reserve such Securities for
distribution to the Noteholders upon the conversion of the Notes so that any
such holder converting Notes will receive upon such conversion, in addition to
the shares of Common Stock to which such holder is entitled, the amount and
kind of such Securities which such holder would have received if such holder
had converted its Notes into Common Stock immediately prior to the record date)
the Conversion Rate shall be increased so that the same shall be equal to the
rate determined by multiplying the Conversion Rate in effect on the record date
with respect to such distribution by a fraction,


 


(i) the
numerator of which shall be the Current Market Price on such Record Date; and


 


(ii) the
denominator of which shall be the Current Market Price on such record date less
the Fair Market Value (as determined by the Board of Directors, whose
determination shall be conclusive, and described in a resolution of the Board
of Directors) on the record date of the portion of the Securities so
distributed applicable to one share of Common Stock,


 


such adjustment to become
effective immediately prior to the opening of business on the day following
such record date; provided that
if 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 Noteholder
shall have the right to receive upon conversion the amount of Securities such
holder would have received had such holder converted each Note on the record
date. If such dividend or distribution is not so paid or made, the Conversion
Rate shall again be adjusted to be the Conversion Rate that would then be in
effect if such dividend or distribution had not been declared. If the Board of
Directors determines the Fair Market Value of any distribution for purposes of
this Section 15.05(d) by reference to the actual or when issued
trading market for any securities, it must in doing so consider the prices in
such market over the same period used in computing the Current Market Price on
the applicable record date.


 


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If the dividend or
distribution requiring an adjustment pursuant to this clause (d) consists
of capital stock of any class or series, or similar equity interests, of a
Subsidiary or other business unit of the Company, for purposes of making such
adjustment, (i) the Current Market Price shall be based on the average of
the Closing Sale Prices of such securities for the ten Trading Days commencing
on and including the fifth Trading Day after the date on which “ex-dividend
trading” commences for such distribution on The New York Stock Exchange or such
other national or regional exchange or market on which such securities are then
listed or quoted, and (ii) the Fair Market Value of such securities shall
be determined as provided herein, measured for the same period.


 


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 15.05
(and no adjustment to the Conversion Rate under this Section 15.05 will be
required) until the occurrence of the earliest Trigger Event, whereupon such
rights and warrants shall be deemed to have been distributed and an appropriate
adjustment (if any is required) to the Conversion Rate shall be made under this
Section 15.05(d). If any such right or warrant, including any such
existing rights or warrants distributed prior to the date of this Indenture,
are subject to events, upon the occurrence of which such rights or warrants
become exercisable to purchase different securities, evidences of indebtedness
or other assets, then the date of the occurrence of any and each such event
shall be deemed to be the date of distribution and record date with respect to
new rights or warrants with such rights (and a termination or expiration of the
existing rights or warrants without exercise by any of the holders thereof). In
addition, in the event of any distribution (or deemed distribution) of rights
or warrants, or any Trigger Event or other event (of the type described in the
preceding sentence) with respect thereto that was counted for purposes of
calculating a distribution amount for which an adjustment to the Conversion
Rate under this Section 15.05 was made, (1) in the case of any such
rights or warrants that 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 or holders
of Common Stock with respect to such rights or warrants (assuming such holder
had retained such rights or warrants), made to all holders of Common Stock as
of the date of such redemption or repurchase, and (2) in the case of such
rights or warrants that shall have expired or been terminated without exercise
by any holders thereof, the Conversion Rate shall be readjusted as if such
rights and warrants had not been issued.


 


No adjustment of the
Conversion Rate shall be made pursuant to this Section 15.05(d) in
respect of rights or warrants distributed or deemed distributed on any Trigger


 


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Event to the extent that
such rights or warrants are actually distributed, or reserved by the Company
for distribution to holders of Notes upon conversion by such holders of Notes
to Common Stock.


 


For purposes of this Section 15.05(d) and
Section 15.05(a) and (b), any dividend or distribution to which this Section 15.05(d) is
applicable that also includes shares of Common Stock, or rights or warrants to
subscribe for or purchase shares of Common Stock (or both), shall be deemed
instead to be (1) a dividend or distribution of the evidences of
indebtedness, assets or shares of capital stock other than such shares of
Common Stock or rights or warrants (and any Conversion Rate adjustment required
by this Section 15.05(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 or such rights or warrants (and any
further Conversion Rate adjustment required by Sections 15.05(a) and 15.05(b) 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 “the date
fixed for the determination of stockholders entitled to receive such dividend or
other distribution”, “the date fixed for the determination of stockholders
entitled to receive such rights or warrants” and “the date fixed for such
determination” within the meaning of Section 15.05(a) and 15.05(b) 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 date fixed for
such determination” within the meaning of Section 15.05(a).


 


(e) In case the Company
shall, by dividend or otherwise, distribute to all holders of its Common Stock
cash (including any quarterly cash dividend, but excluding (x) any
quarterly cash dividend distributed on or after July 1, 2011, on the
Common Stock to the extent the aggregate cash dividend per share of Common
Stock in any Fiscal Quarter does not exceed the greater of (A) the amount
per share of Common Stock of the next preceding quarterly cash dividend on the
Common Stock to the extent that such preceding quarterly dividend did not
require any adjustment of the Conversion Rate pursuant to this Section 15.05(e) (as
adjusted to reflect subdivisions or combinations of the Common Stock), and (B) 1.25%
of the average of the Closing Sale Price of a share of Common Stock over the
ten consecutive Trading Days immediately preceding the date of declaration of
such dividend calculated at the time of the declaration of each distribution
during such quarter, (y) any dividend or distribution in connection with
the liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, and (z) any dividend or distribution in connection with a
reclassification, consolidation, merger, binding share exchange or sale to
which Section 15.06 applies), then, in such case, the Conversion Rate
shall be increased so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect on the applicable record date by a
fraction,


 


(i) the
numerator of which shall be the Current Market Price on such record date; and


 


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(ii) the
denominator of which shall be the Current Market Price on such record date less
(x) the amount of the excess distribution in the case of a quarterly
dividend on or after July 1, 2011, or (y) the full amount of cash so
distributed (and not excluded as provided above) in all other cases, in each of
(x) and (y), as applicable to one share of Common Stock,


 


such adjustment to be
effective immediately prior to the opening of business on the day following the
record date; provided that if the
portion of the cash 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
Noteholder shall have the right to receive upon conversion the amount of cash
such holder would have received had such holder converted each Note on the
record date. If such dividend or distribution is not so paid or made, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such dividend or distribution had not been declared. If
any adjustment is required to be made as set forth in this Section 15.05(e) as
a result of a distribution that is a quarterly dividend, such adjustment shall
be based upon the amount by which such distribution exceeds the amount of the
quarterly cash dividend permitted to be excluded pursuant hereto. If an
adjustment is required to be made as set forth in this Section 15.05(e) above
as a result of a distribution that is not a quarterly dividend, such adjustment
shall be based upon the full amount of the distribution.


 


Notwithstanding the
foregoing, adjustments to the Conversion Rate resulting from any quarterly cash
dividends may not cause the Conversion Rate (as adjusted for any other
adjustment in this Section 15.05) to exceed the quotient obtained by
dividing the principal amount of a Note by $42.30.


 


(f) In case a tender or
exchange offer made by the Company or any Subsidiary 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 of
consideration per share of Common Stock having a Fair Market Value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a resolution of the Board of Directors) that as of the last
time (the “ Expiration Time ”)
tenders or exchanges may be made pursuant to such tender or exchange offer (as
it may be amended) exceeds the Closing Sale Price of a share of Common Stock on
the Trading Day next succeeding the Expiration Time, 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 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


 


83

















 


any such maximum, being
referred to as the “ Purchased Shares
”) and (y) the product of the number of shares of Common Stock outstanding
(less any Purchased Shares) at the Expiration Time and the Closing Sale Price
of a share of Common Stock on the Trading Day next succeeding the Expiration
Time, and


 


(ii) the
denominator of which shall be the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) at the Expiration Time multiplied
by the Closing Sale Price of a share of Common Stock on the Trading Day next
succeeding the Expiration Time,


 


such adjustment to become
effective immediately prior to the opening of business on the day following the
Expiration Time. If the Company is obligated to purchase shares pursuant to any
such tender or exchange 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 that would then be in effect if such tender or exchange offer had not been
made.


 


(g) For purposes of
this Section 15.05, the following terms shall have the meaning indicated:


 


(i) “
Current Market Price ” shall mean
the average of the daily Closing Sale Prices per share of Common Stock over the
ten consecutive Trading Days ending on the earlier of such date of
determination and the day before the “ ex
” date with respect to the issuance, distribution, subdivision or combination
requiring such computation. For purpose of this paragraph, the term “ ex ” date, (1) when used 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 Sale Price was obtained without the right to receive such
issuance or distribution, and (2) when used 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.


 


If
another issuance, distribution, subdivision or combination to which Section 15.05
applies occurs during the period applicable for calculating “ Current Market Price ” pursuant to the
definition in the preceding paragraph, “ Current
Market Price ” shall be calculated for such period in a manner
determined by the Board of Directors to reflect the impact of such issuance,
distribution, subdivision or combination on the Closing Sale Price of the
Common Stock during such period.


 


(ii) “
Fair Market Value ” shall mean the
amount which a willing buyer would pay a willing seller in an arm’s-length
transaction.


 


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(iii) “
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).


 


(iv) “
Trading Day ” shall mean (x) if
the applicable security is quoted on the Nasdaq National Market, a day on which
trades may be made thereon or (y) if the applicable security is listed or
admitted for trading on the New York Stock Exchange or another national
securities exchange, a day on which the New York Stock Exchange or another
national securities exchange is open for business or (z) if the applicable
security is not so listed, admitted for trading or quoted, any day other than a
Saturday or Sunday or a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to close.


 


(h) The Company may
make such increases in the Conversion Rate, in addition to those required by Section 15.05(a)-(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 twenty (20)
Business Days, the increase is irrevocable during the period and the Board of
Directors shall have made a determination that such increase would be in the
best interests of the Company, which determination shall be conclusive.
Whenever the Conversion Rate is increased pursuant to the preceding sentence,
the Company shall mail to holders of record of the Notes a notice of the
increase, 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 one percent (1%) in such rate; provided that any adjustments that by
reason of this Section 15.05(i) are not required to be made shall be
carried forward and the Company shall make such carry forward adjustments,
regardless of whether the aggregate adjustment is less than 1%, within one year
of the first such adjustment carry forward, upon redemption, upon a Fundamental
Change or at maturity. All calculations under this Article 15 shall be
made by the Company and shall be made to the nearest cent or to the nearest
one-ten thousandth (1/10,000) of a share, as the case may be. No adjustment
need be made for rights to purchase Common Stock pursuant to a Company plan for
reinvestment of dividends or interest or for any issuance of Common Stock or
convertible or exchangeable securities


 


85

















 


or rights to purchase Common
Stock or convertible or exchangeable securities. To the extent the Notes become
convertible into cash, assets, property or securities (other than capital stock
of the Company), no adjustment need be made thereafter as to the cash, assets,
property or such securities. Interest will not accrue on any cash into which
the Notes are convertible.


 


(j) Whenever the
Conversion Rate is adjusted as herein provided, the Company shall promptly file
with the Trustee and any conversion agent other than the Trustee an Officers’
Certificate setting forth the Conversion Rate after such adjustment and setting
forth a brief statement of the facts requiring such adjustment. Unless and
until a Responsible Officer of the Trustee shall have received such Officers’
Certificate, the Trustee shall not be deemed to have knowledge of any
adjustment of the Conversion Rate and may assume that the last Conversion Rate
of which it has knowledge is still in effect. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted Conversion Rate and the date on
which each adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Rate to the holder of each Note at his last
address appearing on the Note Register provided for in Section 2.05 of
this Indenture, within twenty (20) calendar days after execution thereof.
Failure to deliver such notice shall not affect the legality or validity of any
such adjustment.


 


(k) In any case in
which this Section 15.05 provides that an adjustment shall become
effective immediately after (1) a record date for an event, (2) the
date fixed for the determination of stockholders entitled to receive a dividend
or distribution pursuant to Section 15.05(a), (3) a date fixed for
the determination of stockholders entitled to receive rights or warrants
pursuant to Section 15.05(b), or (4) the Expiration Time for any
tender or exchange offer pursuant to Section 15.05(f), (each, an “ Adjustment Determination Date ”), the
Company may elect to defer until the occurrence of the applicable Adjustment
Event (as hereinafter defined) (x) issuing to the holder of any Note
converted after such Adjustment Determination Date and before the occurrence of
such Adjustment Event, the additional shares of Common Stock or other
securities issuable upon such conversion by reason of the adjustment required
by such Adjustment Event over and above the cash and, if applicable, Common
Stock issuable upon such conversion before giving effect to such adjustment and
(y) paying to such holder any amount in cash in lieu of any fraction
pursuant to Section 15.03. For purposes of this Section 15.05(k), the
term “ Adjustment Event ” shall
mean:


 


(i) in
any case referred to in clause (1) hereof, the occurrence of such event,


 


(ii) in
any case referred to in clause (2) hereof, the date any such dividend or
distribution is paid or made,


 


(iii) in
any case referred to in clause (3) hereof, the date of expiration of such
rights or warrants, and


 


86

















 


(iv) in
any case referred to in clause (4) hereof, the date a sale or exchange of
Common Stock pursuant to such tender or exchange offer is consummated and
becomes irrevocable.


 


(l) For purposes of
this Section 15.05, 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) No adjustment to
the Conversion Rate shall be made pursuant to this Section 15.05 if the
holders of the Notes may participate in the transaction that would otherwise
give rise to adjustment pursuant to this Section 15.05.


 


Section 15.06 . Effect of Reclassification, Consolidation, Merger
or Sale .


 


(a) If any of the
following events occur, namely (i) any reclassification or change of the
outstanding shares of Common Stock (other than a subdivision or combination to
which Section 15.05(c) applies), (ii) any consolidation, merger,
binding share exchange or combination of the Company with another Person as a
result of which holders of Common Stock shall be entitled to receive capital
stock, other securities or other property or assets (including cash) with
respect to or in exchange for such Common Stock, or (iii) any sale or
conveyance of all or substantially all of the properties and assets of the
Company to any other Person as a result of which holders of Common Stock shall
be entitled to receive capital stock, other securities or other property or
assets (including cash) with respect to or in exchange for such Common Stock,
then the Company or the successor or purchasing Person, as the case may be,
shall execute with the Trustee a supplemental indenture (which shall comply
with the Trust Indenture Act as in force at the date of execution of such
supplemental indenture) providing for the conversion and settlement of Notes as
set forth in this Indenture.


 


(b) Notwithstanding the
provisions of Section 15.12, and subject to the provisions of Section 15.01
and 15.02, the Conversion Value with respect to each $1,000 principal amount of
Notes tendered for conversion on or after the second Trading Day immediately
preceding the effective date of any such transaction shall be calculated (as
provided in (d) below) based on the kind and amount of shares of capital
stock, other securities or other property or assets (including cash) receivable
upon such reclassification, change, consolidation, merger, binding share
exchange, combination, sale or conveyance by a holder of Common Stock holding,
immediately prior to the transaction, a number of shares of Common Stock equal to
the Conversion Rate (plus Additional Shares, to the extent that the holder is
entitled to Additional Shares in accordance with Section 15.13 upon
conversion) immediately prior to such transaction (the “ Exchange Property ”) assuming such holder
of Common Stock did not exercise his rights of election, if any, as to the kind
or amount of capital stock, other securities or other property or assets
(including cash) receivable upon such reclassification, change,


 


87

















 


consolidation, merger,
binding share exchange, combination, sale or conveyance ( provided that, if the kind or amount of
capital stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger, binding
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 15.06 the kind and amount of stock,
other securities or other property or assets (including cash) receivable upon
such reclassification, change, consolidation, merger, 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 15.


 


(c) Notwithstanding the
provisions of Section 15.12, and subject to the provisions of Section 15.01
and 15.02, the Conversion Value with respect to each $1,000 principal amount of
Notes tendered for conversion on or after the second Trading Day immediately preceding
the effective date of any such transaction shall be calculated (as provided in (d) below)
based on


 


(d) The Conversion
Value in respect of any Notes tendered for conversion on or after the second
Trading Day immediately preceding the effective date of any such transaction
shall be equal to the average of the daily values of the Exchange Property
pertaining to such Notes as determined in the next sentence (the “ Exchange Property Value ”) for each of the
ten consecutive Trading Days (appropriately adjusted to take into account the
occurrence during such period of stock splits and similar events) beginning on
the later of (A) the second Trading Day immediately following the day the
Notes are tendered for conversion and (B) the effective date of such transaction
(the “ Exchange Property Weighted Average
Price ”). For the purpose of determining the value of any Exchange
Property:


 


(i) Any
shares of common stock of the successor or purchasing corporation or any other
corporation that are included in the Exchange Property shall be valued as set
forth in Section 15.12 as if such shares were “Common Stock” using the
procedures set forth in the definition of “Closing Sale Price” in Section 1.01;
and


 


(ii) Any
other property (other than cash) included in the Exchange Property shall be
valued in good faith by the Board of Directors or by a New York Stock Exchange
member firm selected by the Board of Directors.


 


(e) The Company shall
deliver such Conversion Value to holders of Notes so converted as follows:


 


(i) An
amount equal to the Principal Return, determined as set forth in Section 15.12(b)(i);
and


 


88

















 


(ii) If
the Conversion Value of the Notes so converted is greater than the Principal
Return, an amount of Exchange Property, determined as set forth in the next
succeeding paragraph, equal to such aggregate Conversion Value less the
Principal Return (the “ Net Exchange Property
Amount ”).


 


The amount of Exchange
Property to be delivered shall be determined by dividing the Net Exchange
Property Amount by the Exchange Property Weighted Average Price. If the
Exchange Property includes more than one kind of property, the amount of
Exchange Property of each kind to be delivered shall be in the proportion that
the Exchange Property Value of such kind of Exchange Property bears to the
Exchange Property Value of all the Exchange Property. If the foregoing
calculations would require the Company to deliver a fractional share or unit of
Exchange Property to a holder of Notes being converted, the Company shall
deliver cash in lieu of such fractional share or unit based on its Exchange
Property Weighted Average Price.


 


(f) Notwithstanding
clauses (b), (c) and (d) above, if the Notes are tendered for
conversion prior to the effective date of any such transaction pursuant to Section 15.01(a)(iii) above,
and the Principal Return and Net Share Amount, if any, have been determined,
but have not been delivered prior to the effective date of such transaction,
then the Company shall (i) pay the Principal Return in cash and (ii) instead
of delivering the Net Share Amount, if applicable, deliver an amount of
Exchange Property that a holder of Common Stock holding, immediately prior to
the transaction, a number of shares of Common Stock equal to the Net Share
Amount, would receive, assuming such holder of Common Stock did not exercise
his rights of election, if any, as to the kind or amount of securities, cash or
other property receivable upon such reclassification, change, consolidation,
merger, combination, sale or conveyance (provided that, if the kind or amount
of securities, cash or other property receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance is not the same
for each non-electing share, then for the purposes of this Section 15.06
the kind and amount of securities, cash or other property receivable upon such
reclassification, change, consolidation, merger, 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). If
the foregoing calculations would require the Company to deliver a fractional
share or unit of Exchange Property to a holder of Notes being converted, the
Company shall deliver cash in lieu of such fractional share or unit based on
the Exchange Property Value (as so determined).


 


(g) Notwithstanding
clauses (b), (c), (d) and (e) above, if Notes are tendered for
conversion at a time when neither of the ten day weighted averaging periods
contemplated in clause (c) or clause (e) applies in full to the
determination of the Conversion Value, then the Conversion Value and the amount
of cash and Exchange


 


89

















 


Property comprising the
Principal Return and the Net Share Amount will be determined proportionally,
with the weighted average amount relating to the portion of the ten day period
falling prior to the effective date being valued as contemplated by clause (e) and
with the weighted average amount relating to the portion of that period falling
on or after the effective date being valued as contemplated by clause (c).


 


(h) The Company shall
cause notice of the execution of such supplemental indenture to be mailed to
each holder of Notes, at its address appearing on the Note Register provided
for in Section 2.05 of this Indenture, within twenty (20) calendar days
after execution thereof. Failure to deliver such notice shall not affect the
legality or validity of such supplemental indenture.


 


(i) The above
provisions of this Section shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations, sales and
conveyances.


 


(j) If this Section 15.06
applies to any event or occurrence, Section 15.05 shall not apply.


 


Section 15.07 . Taxes on Shares Issued . The issue of
stock certificates, if any, on conversion of Notes shall be made without charge
to the converting Noteholder for any documentary, stamp or similar issue or
transfer tax in respect of the issue thereof. The Company shall not, however,
be required to pay any such tax which may be payable in respect of any transfer
involved in the issue and delivery of stock in any name other than that of the
holder of any Note converted, and the Company shall not be required to issue or
deliver any such stock certificate unless and until the Person or Persons
requesting the issue thereof shall have paid to the Company the amount of such
tax or shall have established to the satisfaction of the Company that such tax
has been paid.


 


Section 15.08 . Reservation of Shares, Shares to be Fully Paid
; Compliance with Governmental Requirements
; Listing of Common Stock . The
Company shall provide, free from preemptive rights, out of its authorized but
unissued shares or shares held in treasury, sufficient shares of Common Stock
to provide for the conversion of the Notes as required by this Indenture from
time to time as such Notes are presented for conversion.


 


Before taking any action
which would cause an adjustment increasing the Conversion Rate to an amount
that would cause the Conversion Price to be reduced below the then par value,
if any, of the shares of Common Stock issuable, if any, upon conversion of the
Notes, the Company will take all corporate action which may, in the opinion of
its counsel, be necessary in order that the Company may validly and legally
issue shares of such Common Stock at such adjusted Conversion Rate.


 


The Company covenants that
all shares of Common Stock which may be issued upon conversion of Notes will
upon issue be fully paid and non-assessable by the Company and free from all
taxes, liens and charges with respect to the issue thereof.


 


90

















 


The Company covenants that,
if any shares of Common Stock to be provided for the purpose of conversion of
Notes hereunder require registration with or approval of any governmental
authority under any federal or state law before such shares may be validly
issued upon conversion, the Company will in good faith and as expeditiously as
possible, to the extent then permitted by the rules and interpretations of
the Commission (or any successor thereto), endeavor to secure such registration
or approval, as the case may be.


 


The Company further
covenants that, if at any time the Common Stock shall be listed on The New York
Stock Exchange or any other national securities exchange or automated quotation
system, the Company will, if permitted by the rules of such exchange or
automated quotation system, list and keep listed, so long as the Common Stock
shall be so listed on such exchange or automated quotation system, all Common
Stock issuable upon conversion of the Notes; provided
that if the rules of such exchange or automated quotation system permit
the Company to defer the listing of such Common Stock until the first
conversion of the Notes in accordance with the provisions of this Indenture,
the Company covenants to list such Common Stock issuable upon conversion of the
Notes in accordance with the requirements of such exchange or automated
quotation system at such time.


 


Section 15.09 . Responsibility of Trustee  . The Trustee and any other conversion
agent shall not at any time be under any duty or responsibility to any holder
of Notes to determine the Conversion Rate or whether any facts exist which may
require any adjustment of the Conversion Rate, or with respect to the nature or
extent or calculation of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. The Trustee and any other conversion agent shall
not be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any capital stock, other
securities or other assets or property, which may at any time be issued or
delivered upon the conversion of any Note; and the Trustee and any other
conversion agent make no representations with respect thereto. Neither the
Trustee nor any conversion agent shall be responsible for any failure of the
Company to issue, transfer or deliver any shares of Common Stock or stock
certificates or other securities or property or cash upon the surrender of any
Note for the purpose of conversion or to comply with any of the duties, responsibilities
or covenants of the Company contained in this Article 15. Without limiting
the generality of the foregoing, neither the Trustee nor any conversion agent
shall be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture entered into pursuant to Section 15.06
relating either to the kind or amount of shares of capital stock or other
securities or other assets or property (including cash) receivable by
Noteholders upon the conversion of their Notes after any event referred to in
such Section 15.06 or to any adjustment to be made with respect thereto,
but, subject to the provisions of Section 9.01, may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officers’ Certificate (which the Company shall be obligated
to file with the Trustee prior to the execution of any such supplemental
indenture) with respect


 


91

















 


thereto. The Trustee shall
not at any time be under any duty or responsibility to any holder of Notes to
determine the accuracy of the method employed in calculating the Trading Price
or whether any facts exist which may require any adjustment of the Trading
Price.


 


Section 15.10. Notice to Holders Prior to Certain Actions
. In case:


 


(a) the Company shall
declare a dividend (or any other distribution) on its Common Stock that would
require an adjustment in the Conversion Rate pursuant to Section 15.05; or


 


(b) the Company shall authorize
the granting to the holders of all or substantially all of its Common Stock of
rights or warrants to subscribe for or purchase any share of any class or any
other rights or warrants; or


 


(c) of any
reclassification or reorganization of the Common Stock of the Company (other
than a subdivision or combination of its outstanding Common Stock, or a change
in par value, or from par value to no par value, or from no par value to par
value), or of any consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required, or of the
sale or transfer of all or substantially all of the assets of the Company; or


 


(d) of the voluntary or
involuntary dissolution, liquidation or winding up of the Company;


 


the Company shall cause to
be filed with the Trustee and to be mailed to each holder of Notes at his
address appearing on the Note Register provided for in Section 2.05 of
this Indenture, as promptly as possible but in any event at least ten calendar
days prior to the applicable date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend,
distribution or 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 or rights are to be determined, or (y) the date on
which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective or
occur, and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up.


 


Section 15.11 . Stockholder Rights Plans  . If the rights provided for in the
Company’s stockholder rights agreement dated June 24, 2002 or in any
future rights plan adopted by the Company have separated from the shares of
Common Stock in accordance with the provisions of the applicable stockholder
rights agreement so that the holders of


 


92

















 


the Notes would not be
entitled to receive any rights in respect of Common Stock issuable upon
conversion of the Notes, if any, the Conversion Rate will be adjusted as
provided in Section 15.05(d).


 


Section 15.12. Settlement Upon Conversion .


 


(a) Upon conversion of
any Note, subject to Sections 15.01, 15.02, 15.06 and this Section 15.12,
the Company shall satisfy its obligation upon conversion (the “ Conversion Obligation ”) by payment and
delivery of cash and, if applicable as provided herein, shares of Common Stock,
the aggregate value of which (the “ Conversion
Value ”) shall be equal to the product of:


 


(i) (A) the
quotient of (1) the aggregate principal amount of Notes to be converted
divided by (2) 1,000, multiplied by (B) the sum of the Conversion
Rate in effect on the Conversion Date, plus Additional Shares, if any, pursuant
to Section 15.13; and


 


(ii) the
average of the daily Volume Weighted Average Price of the Common Stock for each
of the ten consecutive Trading Days (appropriately adjusted to take into
account the occurrence during such period of stock splits and similar events)
beginning on the second Trading Day immediately following the Business Day the
Notes are tendered for conversion (the “ Ten
Day Weighted Average Price ”). The “ Volume Weighted Average Price ” per share of the Common Stock
on any Trading Day will be the volume weighted average price on the New York
Stock Exchange or, if the Common Stock is not listed on the New York Stock
Exchange, on the principal U.S. securities exchange or over-the-counter market
on which the Common Stock is then listed or traded, from 9:30 a.m. to 4:00 p.m.
(New York City time) on that Trading Day as displayed by Bloomberg (Bloomberg
key strokes: EYE Equity VAP) (or if such volume weighted average price is not
available, the market value of one share on such Trading Day as the Board of
Directors determine in good faith using a volume weighted method).


 


(b) The Company shall
deliver the Conversion Value of the Notes surrendered for conversion to
converting holders as follows:


 


(i) an
amount in cash (the “ Principal Return
”) equal to the lesser of (A) the aggregate Conversion Value of the Notes
to be converted and (B) the aggregate principal amount of the Notes to be
converted;


 


(ii) if
the aggregate Conversion Value of the Notes to be converted is greater than the
Principal Return, an amount in whole shares of Common Stock (the “ Net Shares ”), determined pursuant to Section 15.12(c),
equal to such aggregate Conversion Value less the Principal Return (the “ Net Share Amount ”); and


 


93

















 


(iii) an
amount in cash in lieu of any fractional shares of Common Stock.


 


(c) The number of Net
Shares to be paid will be determined by dividing the Net Share amount by the
Ten Day Weighted Average Price and any cash payment for fractional shares also
will be based on the Ten Day Weighted Average Price.


 


(d) The Conversion
Value, Principal Return, Net Share Amount and the number of Net Shares will be
determined by the Company at the end of the ten consecutive trading period
beginning on the second Trading Day immediately following the day the Notes are
tendered for conversion (the “ Determination
Date ”); provided that
with respect to any Notes surrendered for conversion pursuant to Section 15.01(a)(iii),
the Determination Date shall be the last Trading Day in the period on which the
applicable Stock Price is determined (pursuant to the definition thereof) in
connection with the determination of Additional Shares, if any, to be added to
the Conversion Rate.


 


(e) Payment of the cash
and Net Share Amount, if any, in satisfaction of the Conversion Obligation
shall be made by the Company promptly following the Determination Date, but in
no event later than three Business Days thereafter (the “ Conversion Settlement Date ”) by paying in
cash the Principal Return (together with any cash in lieu of fractional shares)
to the holder of a Note surrendered for conversion, or such holder’s nominee or
nominees, and issue, or cause to be issued, and deliver to the Conversion Agent
or to such holder, or such holder’s nominee or nominees, certificates or a book-entry
transfer through the Depositary for the number of full shares of Common Stock
equal to the Net Share Amount, if any, to which such holder shall be entitled
as part of such Conversion Obligation.


 


Section 15.13. Fundamental Change Make Whole Amount .


 


(a) Subject to the
provisions hereof, if a Noteholder elects to convert its Notes pursuant to Section 15.01(a)(iii) following
the occurrence of a Fundamental Change that occurs on or prior to July 1,
2011, the Company will increase the applicable Conversion Rate for the Notes so
surrendered for conversion at any time during the period that is 15 calendar
days prior to the date announced by the Company as the anticipated effective
date for the Fundamental Change and until and including the date that is 15 calendar
days after the Effective Date such that the Holder will be entitled to receive,
in addition to the cash and Common Stock, if applicable, it is entitled to
receive pursuant to Section 15.12, a number of shares of Common Stock as
set forth in Section 15.13(b) (the “ Make Whole Amount ”).


 


(b) The number of
Additional Shares will be determined by reference to the table in paragraph (e) below
and is based on the date on which the Fundamental Change becomes effective (the
“ Effective Date ”) and the price
paid per share of the Common Stock in the Fundamental Change transaction (the “
Stock Price ”). If holders of the
Common Stock receive only cash in the Fundamental Change Transaction, the Stock


 


94

















 


Price will equal the cash
amount paid per share. In all other cases, the Stock Price will equal and the
average of the Closing Sale Price of the Common Stock over the ten Trading Day
period ending on the Trading Day immediately preceding the Effective Date.


 


(c) The Stock Prices
set forth in the first row of the table below shall be adjusted as of any date
on which the Conversion Rate of the Notes is adjusted pursuant to Section 15.13
(and other than any increase to the Conversion Rate for a Fundamental Change as
set forth in this Section 15.13). The adjusted Stock Prices will equal the
Stock Prices applicable immediately prior to such adjustment, multiplied by a
fraction, (i) the numerator of which is the Conversion Rate immediately
prior to the adjustment giving rise to the Stock Price adjustment and (ii) the
denominator of which is the Conversion Rate as so adjusted.


 


(d) The number of
Additional Shares will be adjusted in the same manner and for the same events
as the Conversion Rate is adjusted pursuant to Section 15.05.


 


(e) The following table
sets forth the Stock Price and number of Additional Shares issuable per $1,000
principal amount of Notes:


 


	
   

  	
   

  	
  Stock Price

  	
   

  
	
  Effective Date

  	
   

  	
  42.30

  	
   

  	
  45.00

  	
   

  	
  47.50

  	
   

  	
  50.00

  	
   

  	
  52.50

  	
   

  	
  55.00

  	
   

  	
  60.00

  	
   

  	
  70.00

  	
   

  	
  90.00

  	
   

  	
  110.00

  	
   

  	
  130.00

  	
   

  	
  150.00

  	
   

  	
  170.00

  	
   

  	
  190.00

  	
   

  	
  200.00

  	
   

  
	
  7/18/2005

  	
   

  	
  2.63

  	
   

  	
  2.63

  	
   

  	
  2.35

  	
   

  	
  2.07

  	
   

  	
  1.83

  	
   

  	
  1.63

  	
   

  	
  1.32

  	
   

  	
  0.91

  	
   

  	
  0.51

  	
   

  	
  0.32

  	
   

  	
  0.22

  	
   

  	
  0.15

  	
   

  	
  0.11

  	
   

  	
  0.07

  	
   

  	
  0.06

  	
   

  
	
  7/1/2006

  	
   

  	
  2.63

  	
   

  	
  2.63

  	
   

  	
  2.28

  	
   

  	
  1.98

  	
   

  	
  1.74

  	
   

  	
  1.54

  	
   

  	
  1.22

  	
   

  	
  0.82

  	
   

  	
  0.45

  	
   

  	
  0.28

  	
   

  	
  0.19

  	
   

  	
  0.13

  	
   

  	
  0.09

  	
   

  	
  0.06

  	
   

  	
  0.05

  	
   

  
	
  7/1/2007

  	
   

  	
  2.63

  	
   

  	
  2.57

  	
   

  	
  2.19

  	
   

  	
  1.88

  	
   

  	
  1.62

  	
   

  	
  1.41

  	
   

  	
  1.09

  	
   

  	
  0.71

  	
   

  	
  0.37

  	
   

  	
  0.24

  	
   

  	
  0.16

  	
   

  	
  0.11

  	
   

  	
  0.08

  	
   

  	
  0.05

  	
   

  	
  0.04

  	
   

  
	
  7/1/2008

  	
   

  	
  2.63

  	
   

  	
  2.47

  	
   

  	
  2.06

  	
   

  	
  1.73

  	
   

  	
  1.46

  	
   

  	
  1.24

  	
   

  	
  0.92

  	
   

  	
  0.56

  	
   

  	
  0.29

  	
   

  	
  0.18

  	
   

  	
  0.13

  	
   

  	
  0.09

  	
   

  	
  0.06

  	
   

  	
  0.04

  	
   

  	
  0.03

  	
   

  
	
  7/1/2009

  	
   

  	
  2.63

  	
   

  	
  2.32

  	
   

  	
  1.86

  	
   

  	
  1.50

  	
   

  	
  1.22

  	
   

  	
  1.00

  	
   

  	
  0.70

  	
   

  	
  0.39

  	
   

  	
  0.19

  	
   

  	
  0.13

  	
   

  	
  0.09

  	
   

  	
  0.06

  	
   

  	
  0.04

  	
   

  	
  0.03

  	
   

  	
  0.02

  	
   

  
	
  7/1/2010

  	
   

  	
  2.63

  	
   

  	
  2.03

  	
   

  	
  1.51

  	
   

  	
  1.12

  	
   

  	
  0.83

  	
   

  	
  0.63

  	
   

  	
  0.37

  	
   

  	
  0.18

  	
   

  	
  0.09

  	
   

  	
  0.07

  	
   

  	
  0.05

  	
   

  	
  0.03

  	
   

  	
  0.02

  	
   

  	
  0.02

  	
   

  	
  0.01

  	
   

  
	
  7/1/2011

  	
   

  	
  2.63

  	
   

  	
  1.21

  	
   

  	
  0.04

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  



 


(f) If the exact Stock
Price and Effective Date are not set forth on the table above, then:


 


(i) If
the Stock Price is between two Stock Price amounts in the table or the
Effective Date is between two Effective Dates in the table, the number of
Additional Shares will be determined by a straight-line interpolation between
the number of Additional Shares set forth for the higher and lower Stock Price
amounts and the two dates, as applicable, based on a 365-day year.


 


(ii) If
the Stock Price is equal to or in excess of $200.00 per share, subject to
adjustment, the Company shall not increase the Conversion Rate by any
Additional Shares.


 


(iii) If
the Stock Price is less than $42.30 per share, subject to adjustment, the Company
shall not increase the Conversion Rate by any Additional Shares.


 


95
















 


(g) Notwithstanding
the foregoing, in no event will the total number of shares of Common Stock
issuable upon conversion of a Note (after giving effect to the make-whole
adjustment required by this Section 15.13) exceed 23.6407 per $1,000
principal amount of Notes, subject to adjustment in the same manner and for the
same events as the Conversion Rate may be adjusted pursuant to Section 15.05.


 


(h) Settlement
of Notes converted upon Fundamental Change shall be as set forth in Section 15.06.


 


ARTICLE 16


MISCELLANEOUS PROVISIONS


 


Section 16.01 . Provisions Binding on Company’s Successors
. All the covenants,
stipulations, promises and agreements by the Company contained in this
Indenture shall bind their respective successors and assigns whether so
expressed or not.


 


Section 16.02 . Official Acts by Successor Corporation  . Any act or proceeding by any provision
of this Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed with
like force and effect by the like board, committee or officer of any Person
that shall at the time be the lawful sole successor of the Company.


 


Section 16.03 . Addresses for Notices, etc. Any notice
or demand which by any provision of this Indenture is required or permitted to
be given or served by the Trustee or by the holders of Notes on the Company
shall be in writing and shall be deemed to have been sufficiently given or
made, for all purposes, if given or served by being deposited postage prepaid by
registered or certified mail in a post office letter box, or sent by overnight
courier, or sent by telecopier transmission addressed as follows: to Advanced
Medical Optics, Inc., 1700 E. St. Andrew Place, Santa Ana, CA 92705,
Telecopier No.: (714) 247-8679, Attention: Aimee S. Weiner, Esq. Any
notice, direction, request or demand hereunder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
served by being deposited, postage prepaid, by registered or certified mail in
a post office letter box, or sent by overnight courier, or sent by telecopier
transmission addressed as follows: U.S. Bank National Association, 60
Livingston Avenue, St. Paul, Minnesota 55107-1491, Telecopier No.: (651)
495-8097, Attention: Corporate Trust Department.


 


The Trustee, by notice to
the Company, may designate additional or different addresses for subsequent
notices or communications.


 


Any notice or communication
mailed to a Noteholder shall be mailed by first class mail, postage prepaid, at
such Noteholder’s address as it appears on the Note Register and shall be
sufficiently given to such Noteholder if so mailed within the time prescribed.


 


96

















 


Failure to mail a notice or
communication to a Noteholder or any defect in it shall not affect its
sufficiency with respect to other Noteholders. If a notice or communication is
mailed in the manner provided above, it is duly given, whether or not the
addressee receives it.


 


Section 16.04 . Governing Law  . This Indenture shall be governed by, and construed in
accordance with, the laws of the State of New York.


 


Section 16.05 . Evidence of Compliance with Conditions Precedent,
Certificates to Trustee  .
Upon any application or demand by the Company to the Trustee to take any action
under any of the provisions 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, and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.


 


Each certificate or opinion
provided for in this Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant provided for in this Indenture shall
include: (1) a statement that the person making such certificate or
opinion has read such covenant or condition; (2) a brief statement as to
the nature and scope of the examination or investigation upon which the
statement or opinion contained in such certificate or opinion is based; (3) a
statement that, in the opinion of such person, such person has made such
examination or investigation as is necessary to enable such person to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with; provided, however, that with respect to
matters of fact an Opinion of Counsel may rely on an Officers’ Certificate or
certificates of public officials.


 


Section 16.06 . Legal Holidays  . In any case in which the date of
maturity of interest on or principal or premium, if any, of the Notes or the
redemption date or repurchase date of any Note will not be a Business Day, then
payment of such interest on or principal or premium, if any, of the Notes need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the date of maturity or the
redemption or repurchase date, and no interest shall accrue for the period from
and after such date.


 


Section 16.07 . Trust Indenture Act  . This Indenture is hereby made subject to,
and shall be governed by, the provisions of the Trust Indenture Act required to
be part of and to govern indentures qualified under the Trust Indenture Act; provided that unless otherwise required by
law, notwithstanding the foregoing, this Indenture and the Notes issued
hereunder shall not be subject to the provisions of subsections (a)(1), (a)(2),
and (a)(3) of Section 314 of the Trust Indenture Act as now in effect
or as hereafter amended or modified; provided
further that this Section 16.07 shall not require this Indenture or the
Trustee to be qualified under the Trust Indenture Act prior to the time such


 


97

















 


qualification is in fact
required under the terms of the Trust Indenture Act, nor shall it constitute
any admission or acknowledgment by any party to the Indenture that any such
qualification is required prior to the time such qualification is in fact
required under the terms of the Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
to be included in an indenture qualified under the Trust Indenture Act, such
required provision shall control.


 


Section 16.08 . No Security Interest Created  . Nothing in this Indenture or in the Notes,
expressed or implied, shall be construed to constitute a security interest
under the Uniform Commercial Code or similar legislation, as now or hereafter
enacted and in effect, in any jurisdiction in which property of the Company or
its subsidiaries is located.


 


Section 16.09 . Benefits of Indenture  . Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto, any Paying Agent, any authenticating agent, any Note Registrar and
their successors hereunder and the holders of Notes any benefit or any legal or
equitable right, remedy or claim under this Indenture.


 


Section 16.10 . Table of Contents, Headings, etc. The
table of contents and the titles and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.


 


Section 16.11 . Authenticating Agent  . The Trustee may appoint an authenticating
agent that shall be authorized to act on its behalf, and subject to its
direction, in the authentication and delivery of Notes in connection with the
original issuance thereof and transfers and exchanges of Notes hereunder,
including under Sections 2.04, 2.05, 2.06, 2.07, 3.03, 3.05 and 3.06, as fully
to all intents and purposes as though the authenticating agent had been
expressly authorized by this Indenture and those Sections to authenticate and
deliver Notes. For all purposes of this Indenture, the authentication and
delivery of Notes by the authenticating agent shall be deemed to be
authentication and delivery of such Notes “by the Trustee” and a certificate of
authentication executed on behalf of the Trustee by an authenticating agent
shall be deemed to satisfy any requirement hereunder or in the Notes for the
Trustee’s certificate of authentication. Such authenticating agent shall at all
times be a Person eligible to serve as trustee hereunder pursuant to Section 9.09.


 


Any corporation into which any
authenticating agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, consolidation or
conversion to which any authenticating agent shall be a party, or any
corporation succeeding to the corporate trust business of any authenticating
agent, shall be the successor of the authenticating agent hereunder, if such
successor corporation is otherwise eligible under this Section 16.11,
without the execution or filing of any paper or any further act on the part of
the parties hereto or the authenticating agent or such successor corporation.


 


98

















 


Any authenticating agent may
at any time resign by giving written notice of resignation to the Trustee and
to the Company. The Trustee may at any time terminate the agency of any
authenticating agent by giving written notice of termination to such
authenticating agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible under this Section, the Trustee
shall either promptly appoint a successor authenticating agent or itself assume
the duties and obligations of the former authenticating agent under this Indenture
and, upon such appointment of a successor authenticating agent, if made, shall
give written notice of such appointment of a successor authenticating agent to
the Company and shall mail notice of such appointment of a successor
authenticating agent to all holders of Notes as the names and addresses of such
holders appear on the Note Register.


 


The Company agrees to pay to
the authenticating agent from time to time such reasonable compensation for its
services as shall be agreed upon in writing between the Company and the
authenticating agent.


 


The provisions of Sections
9.02, 9.03, 9.04 and 10.03 and this Section 16.11 shall be applicable to
any authenticating agent.


 


Section 16.12 . Execution in Counterparts  . This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts
shall together constitute but one and the same instrument.


 


Section 16.13 . Severability  . In case any provision in this Indenture or in the Notes
shall be invalid, illegal or unenforceable, then (to the extent permitted by
law) the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.


 


U.S. Bank National
Association hereby accepts the trusts in this Indenture declared and provided,
upon the terms and conditions herein above set forth.


 


99

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Indenture to be duly executed.


 


	
   

  	
  ADVANCED MEDICAL OPTICS,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /
  S /    RICHARD A. MEIER

  
	
   

  	
  Name:

  	
  Richard A. Meier

  
	
   

  	
  Title:

  	
  Executive Vice President of

  Operations and
  Finance,

  Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION, as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /
  S /    RICHARD H. PROKOSCH

  
	
   

  	
  Name:

  	
  Richard H. Prokosch

  
	
   

  	
  Title:

  	
  Vice President

  



 


 

















 


EXHIBIT A


 


THIS NOTE HAS BEEN ISSUED
WITH ORIGINAL ISSUE DISCOUNT, FOR PURPOSES OF SECTIONS 1272, 1273, AND 1275 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. UPON THE REQUEST OF THE HOLDER
OF THIS NOTE, THE COMPANY WILL PROMPTLY MAKE AVAILABLE TO THE HOLDER OF THIS
NOTE, (1) THE ISSUE PRICE OF THE NOTE, (II) THE AMOUNT OF ORIGINAL
ISSUE DISCOUNT IN RESPECT THEREOF, (III) THE ISSUE DATE OF THE NOTE, (IV) THE
COMPARABLE YIELD OF THE NOTE, AND (V) THE PROJECTED PAYMENT SCHEDULE OF THE
NOTE, IN EACH CASE AS DETERMINED UNDER THE ORIGINAL ISSUE DISCOUNT RULES OF THE
U.S. INTERNAL REVENUE CODE. PLEASE CONTACT: ADVANCED MEDICAL OPTICS, INC.,
ATTN: INVESTOR RELATIONS DEPARTMENT, 1700 E. ST. ANDREW PLACE, SANTA ANA, CA
92705.


 


[Include only for Global
Notes]


 


[UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55
WATER STREET, NEW YORK, NEW YORK) (THE “DEPOSITARY”, WHICH TERM INCLUDES ANY
SUCCESSOR DEPOSITARY FOR THE CERTIFICATES) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREIN IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]


 


[Include only for Notes that
are Restricted Securities]


 


THIS SECURITY AND THE SHARES
OF ADVANCED MEDICAL OPTICS, INC. (THE “COMPANY”) COMMON STOCK (“COMMON STOCK”)
ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY, THE SHARES OF COMMON STOCK ISSUABLE
UPON CONVERSION OF THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR
THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH


 

















 


REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.


 


THE HOLDER OF THIS SECURITY,
BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (2) AGREES
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE
RESTRICTION TERMINATION DATE”) THAT IS TWO YEARS AFTER THE LAST ORIGINAL ISSUE
DATE HEREOF ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR
SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHTS OF THE COMPANY AND
THE TRUSTEE PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES
WHERE REGISTRATION OR TRANSFER OF THIS SECURITY IS REQUIRED, A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED AFTER
THE RESALE RESTRICTION TERMINATION DATE. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING RESTRICTION. IN ANY CASE, THE HOLDER HEREOF WILL NOT,
DIRECTLY OR INDIRECTLY ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THIS
SECURITY OR THE COMMON STOCK EXCEPT AS PERMITTED UNDER THE SECURITIES ACT.


 


THE HOLDER OF THIS SECURITY
IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS AGREEMENT (AS SUCH TERM IS
DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF) AND, BY ITS
ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH THE PROVISIONS OF
SUCH REGISTRATION RIGHTS AGREEMENT.


 


A-2

















 


ADVANCED
MEDICAL OPTICS, INC.


1.375%
CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2025


 


	
   

  	
  CUSIP:

  
	
  No.

  	
   

  	
  $                      

  



 


Advanced Medical Optics, Inc.,
a Delaware corporation (herein called the “Company”, which term includes any
successor corporation under the Indenture referred to on the reverse hereof),
for value received hereby promises to pay to                     
or its registered assigns, [the principal sum of
                    
DOLLARS] [or, such amount as is indicated in the records of the Trustee and the
Depositary][1] on July 1, 2025 at the office or agency of the Company
maintained for that purpose in accordance with the terms of the Indenture, in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts, and to pay
interest, semi-annually on January 1 and July 1 of each year,
commencing January 1, 2006, on said principal sum at said office or
agency, in like coin or currency, at the rate per annum of 1.375%, from the January 1
or July 1, as the case may be, next preceding the date of this Note to
which interest has been paid or duly provided for, unless the date hereof is a
date to which interest has been paid or duly provided for, in which case from
the date of this Note, or unless no interest has been paid or duly provided for
on the Notes, in which case from July 18, 2005 until payment of said
principal sum has been made or duly provided for. Notwithstanding the
foregoing, if the date hereof is after any December 15 or June 15, as
the case may be, and before the following January 1 or July 1, this
Note shall bear interest from such January 15 or July 15; provided that if the Company shall default
in the payment of interest due on such January 1 or July 1, then this
Note shall bear interest from the next preceding January 1 or July 1
to which interest has been paid or duly provided for or, if no interest has
been paid or duly provided for on such Note, from July 18, 2005. Beginning
with the six-month interest period commencing July 1, 2011, the Notes may
accrue contingent interest. Contingent interest, if any, for any six-month
interest period will be payable on the applicable January 1 or July 1
interest payment date. Except as otherwise provided in the Indenture, the
interest payable on the Note pursuant to the Indenture on any January 1 or
July 1 will be paid to the Person entitled thereto as it appears in the
Note Register at 5:00 p.m., New York City time, on the applicable record
date, which shall be the December 15 or June 15 (whether or not a
Business Day) next preceding such January 1 or July 1, as provided in
the Indenture; provided that any
such interest not punctually paid or duly provided for shall be payable as
provided in the Indenture. The Company shall pay interest on any Notes in
certificated form by check mailed to the address of the Person entitled thereto
as it appears in the Note Register. Payments to The Depository Trust Company
will be made by wire transfer in immediately available funds to the account of
the DTC or its nominee.


 






 






(1)        For Global Notes only.


 


A-3

















 


The Company promises to pay
interest on overdue principal, premium, if any, and (to the extent that payment
of such interest is enforceable under applicable law) interest at the rate of
1% per annum above the rate borne by the Notes.


 


Reference is made to the
further provisions of this Note set forth on the reverse hereof, including,
without limitation, provisions giving the holder of this Note the right to
convert this Note into cash and, if applicable, shares of Common Stock on the
terms and subject to the limitations referred to on the reverse hereof and as
more fully specified in the Indenture. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.


 


IN THE CASE OF ANY CONFLICT
BETWEEN THE PROVISIONS OF THIS NOTE AND THE INDENTURE, THE PROVISIONS OF THE
INDENTURE SHALL CONTROL. THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


This Note shall not be valid
or become obligatory for any purpose until the certificate of authentication
hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.


 


A-4

















 


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


 


	
   

  	
  ADVANCED MEDICAL OPTICS,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  



 


A-5

















 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


 


This
is one of the Notes described in the within-named Indenture.


 


U.S.
BANK NATIONAL ASSOCIATION, as Trustee


	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
     Authorized
  Signatory

  	
   

  



 


A-6
















 


FORM OF
REVERSE OF NOTE


 


ADVANCED
MEDICAL OPTICS, INC.


1.375%
CONVERTIBLE SENIOR SUBORDINATED NOTE DUE 2025


 


This note is one of a duly
authorized issue of notes of the Company, designated as its 1.375% Convertible
Senior Subordinated Notes due 2025 (herein called the “Notes”), limited in
aggregate principal amount to $150,000,000, issued and to be issued under and
pursuant to an Indenture dated as of July 18, 2005, (herein called the “Indenture”),
between the Company and U.S. Bank National Association, as trustee (herein
called the “Trustee”), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders of the Notes. Defined terms used but not otherwise
defined in this Note shall have the respective meanings ascribed thereto in the
Indenture.


 


If an Event of Default
occurs and is continuing, the principal of, premium, if any, and accrued and
unpaid interest on all Notes may be declared to be due and payable by either
the Trustee or the holders of at least 25% in aggregate principal amount of the
Notes then outstanding, and, upon said declaration the same shall be due and
payable, (a) immediately if there shall no longer be a Senior Credit
Facility or (b) if the Senior Credit Facility is in effect, immediately
upon the earlier to occur of (i) the date indebtedness under the Senior
Credit Facility is declared accelerated and (ii) the fifth Business Day
after written notice of the declaration of such acceleration has been given to
the agents under the Senior Credit Facility, in the manner, with the effect and
subject to the conditions provided in the Indenture.


 


The Indenture contains
provisions permitting the Company and the Trustee, with the consent of the
holders of a majority in aggregate principal amount of the Notes at the time
outstanding, to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture or modifying in any manner the rights of the
holders of the Notes, subject to exceptions set forth in Section 11.02 of
the Indenture. Subject to the provisions of the Indenture, the holders of a
majority in aggregate principal amount of the Notes at the time outstanding
may, on behalf of the holders of all of the Notes, waive any past default or
Event of Default, subject to exceptions set forth in the Indenture. Upon any
such waiver, said default shall for all purposes of this Note and the Indenture
be deemed to have been cured and to be not continuing, but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.


 


The indebtedness evidenced
by the Notes is, to the extent and in the manner provided in the Indenture,
contractually subordinated in right of payment or satisfaction to the prior
payment or satisfaction in full in cash of all Senior Indebtedness of the
Company, whether outstanding at the date of the Indenture or thereafter
incurred, and this


 


A-7

















 


Note is issued subject to
the provisions of the Indenture with respect to such subordination. Each holder
of this Note, by accepting the same, agrees to and shall be bound by such
provisions and authorizes the Trustee on its behalf to take such action as may
be necessary or appropriate to effectuate the subordination so provided and
appoints the Trustee his attorney-in-fact for such purpose.


 


No reference herein to the
Indenture and no provision of this Note or of the Indenture shall impair, as
among the Company and the holder of the Notes, the obligation of the Company,
which is absolute and unconditional, to pay the principal of, premium, if any,
on and interest on this Note at the place, at the respective times, at the rate
and in the coin or currency herein and in the Indenture prescribed.


 


Interest on the Notes shall
be computed on the basis of a 360-day year of twelve 30-day months.


 


The Notes are issuable in
fully registered form, without coupons, in denominations of $1,000 principal
amount and any multiple of $1,000. At the office or agency of the Company
referred to on the face hereof, and in the manner and subject to the
limitations provided in the Indenture, without payment of any service charge
but with payment of a sum sufficient to cover any tax, assessment or other
governmental charge that may be imposed in connection with any registration or
exchange of Notes, Notes may be exchanged for a like aggregate principal amount
of Notes of any other authorized denominations.


 


At any time on or after July 6,
2011 and prior to maturity, the Notes may be redeemed at the option of the
Company, in whole or in part, upon mailing a notice of such redemption not less
than 30 calendar days but not more than 60 calendar days before the redemption
date to each holder of Notes, all as provided in the Indenture, in cash at a
redemption price equal to 100% of the principal amount of Notes being redeemed and
accrued and unpaid interest to, but excluding, the redemption date; provided that if the redemption date is
after a record date and on or prior to the corresponding interest payment date,
the accrued and unpaid interest shall be payable to the holder of record of
this Note on the preceding December 15 or June 15, as the case may
be. The Company may not redeem any Notes if a default in the payment of
interest on the Notes has occurred and is continuing.


 


The Notes are not subject to
redemption through the operation of any sinking fund.


 


If a Fundamental Change
occurs at any time prior to maturity of the Notes, this Note will be subject to
a repurchase in cash, at the option of the holder, on a Fundamental Change
Repurchase Date, specified by the Company, that is not less than 20 Business
Days nor more than 35 Business Days after notice thereof, at a repurchase price
equal to 100% of the principal amount hereof, together with accrued and unpaid
interest on this Note to, but excluding, the Fundamental Change Repurchase
Date, if any; provided that


 


A-8

















 


if such Fundamental Change
Repurchase Date falls after a record date and on or prior the corresponding
interest payment date, the accrued and unpaid interest shall be payable to the
holder of record of this Note on the preceding December 15 or June 15,
as the case may be. The Notes submitted for repurchase must be $1,000 in
principal amount or whole multiples thereof. The Company shall mail to all
holders of record of the Notes (and to beneficial owners as required by
applicable law) a notice of the occurrence of a Fundamental Change and of the
repurchase right arising as a result thereof on or before the 10th Business Day
after the occurrence of such Fundamental Change. For a Note to be so redeemed
at the option of the holder, the holder must deliver to the Paying Agent in
accordance with the terms of the Indenture, the Repurchase Notice containing
the information specified by the Indenture, together with such Note, duly
endorsed for transfer, or (if the Notes are Global Notes) book-entry transfer
of the Note, prior to 5:00 p.m., New York City time, on the Business Day
immediately preceding the Fundamental Change Repurchase Date.


 


Subject to the terms and
conditions of the Indenture, each holder shall have the right, at such holder’s
option, to require the Company to repurchase all or any portion of the Notes
held by such holder, on July 1, 2011, July 1, 2016, and July 1,
2021, at a repurchase price in cash equal to 100% of the principal amount of
this Note, together with any accrued and unpaid interest on this Note to, but
excluding, the Repurchase Date. The accrued and unpaid interest shall be
payable to the holder of record of this Note on the preceding December 15
or June 15, as the case may be. To exercise such right, a holder shall
deliver to the Paying Agent the Repurchase Notice containing the information
specified by the Indenture, together with the Note, duly endorsed for transfer,
or (if the Notes are Global Notes) book-entry transfer of the Note, at any time
from 9:00 a.m., New York City time, on the date that is 20 Business Days
prior to the applicable Repurchase Date to 5:00 p.m., New York City time,
on the Business Day immediately preceding the applicable Repurchase Date.


 


Holders have the right to
withdraw any Repurchase Notice by delivering to the Paying Agent a written
notice of withdrawal at any time prior to 5:00 p.m., New York City time,
on the Business Day immediately preceding the Fundamental Change Repurchase
Date or the Repurchase Date, as applicable, all as provided in the Indenture.


 


If on the Fundamental Change
Repurchase Date or the Repurchase Date the Paying Agent holds money sufficient
to pay the repurchase price of the Notes that holders have elected to require
the Company to repurchase in accordance with the Indenture, then, on the
Fundamental Change repurchase Date or the Repurchase Date, as the case may be,
such Notes will cease to be outstanding, interest will cease to accrue and all
other rights of the holders of such Notes will terminate, other than the right
to receive the repurchase price upon delivery or book entry transfer of the
Note. This will be the case whether or not book entry transfer of the Note has
been made or the Notes has been delivered to the Paying Agent.


 


A-9

















 


Subject to and in compliance
with the provisions of the Indenture, on or prior to the Trading Day
immediately preceding June 1, 2011, the holder hereof has the right, at
its option, to convert each $1,000 principal amount of this Note into cash or,
as provided in the Indenture, cash and shares of Common Stock, equal to the
conversion rate of 21.0084 shares of Common Stock (a conversion price of
approximately $47.60 per share), subject to adjustment from time to time as
provided in the Indenture, upon surrender of this Note (if in certificated
form) with the form entitled “Conversion Notice” on the reverse hereof duly
completed and manually signed, to the Company at the office or agency of the
Company maintained for that purpose in the City of New York in accordance with
the terms of the Indenture, or at the option of such holder, the Corporate
Trust Office, together with any funds required pursuant to the terms of the Indenture,
and, unless the shares issuable on conversion, if any, are to be issued in the
same name as this Note, duly endorsed by, or accompanied by instruments of
transfer in form satisfactory to the Company duly executed by, the holder or by
such holder’s duly authorized attorney; provided
, however , that at any time
prior to the close of business on the trading Day preceding June 1, 2011,
holders may convert their Notes only upon the occurrence of specified events
set forth in the Indenture. The Company will notify the holder thereof of any
event triggering the right to convert the Notes prior to June 1, 2011, as
specified above in accordance with the Indenture. In order to exercise the
conversion right with respect to any interest in a Global Note, the holder must
complete the appropriate instruction form pursuant to the Depositary’s
book-entry conversion program, deliver by book-entry delivery an interest in
such Global Note, furnish appropriate endorsements and transfer documents if
required by the Company or the Trustee or conversion agent, and pay the funds,
if any, required pursuant to the terms of the Indenture.


 


In the event the holder
surrenders this Note for conversion in connection with a Fundamental Change
occurring prior to July 1, 2011, the Company will increase the applicable
Conversion Rate by the Make Whole Amount as and when provided in the Indenture.


 


No adjustment in respect of
interest on any Note converted or dividends on any shares issued upon
conversion of such Note will be made upon any conversion except as set forth in
the next sentence. If this Note (or portion hereof) is surrendered for
conversion during the period from the 5:00 p.m., New York City time, on
any applicable Record Date for the payment of interest to 5:00 p.m., New
York City time, on the Business Day preceding the corresponding interest
payment date, this Note (or portion hereof being converted) must be accompanied
by payment, in immediately available funds or other funds acceptable to the
Company, of an amount equal to the interest otherwise payable on such interest
payment date on the principal amount being converted; provided that no such payment shall be
required (1) if the holder surrenders this Note for conversion in
connection with a redemption and the Company has specified a Redemption Date
that is after a Record Date and on or prior to the corresponding interest
payment date, (2) if the holder surrenders this Note in connection with a
Fundamental Change and the Company has specified a Fundamental Change Repurchase


 


A-10

















 


Date that is after a Record
Date and on or prior to the corresponding interest payment date or (3) to
the extent of any overdue interest, if any exists at the time of conversion
with respect to this Note. Notwithstanding the foregoing, in the case of Notes
submitted for conversion in connection with a Fundamental Change as set forth
in the Indenture, such Notes shall continue to represent the right to receive
the Make Whole Amount, if any, payable pursuant to the Indenture until such
Make Whole Amount is so paid.


 


No fractional shares will be
issued upon any conversion, but an adjustment and payment in cash will be made,
as provided in the Indenture, in respect of any fraction of a share which would
otherwise be issuable upon the surrender of any Note or Notes for conversion.


 


A Note in respect of which a
holder is exercising its right to require repurchase may be converted only if
such holder validly withdraws its election to exercise such right to require
repurchase in accordance with the terms of the Indenture.


 


Any Notes called for
redemption, unless surrendered for conversion by the holders thereof on or
before 5:00 p.m., New York City time, on the Trading Day preceding the
Redemption Date, may be deemed, to the fullest extent required by law, to be
redeemed from the holders of such Notes for an amount equal to the applicable
redemption price, together with accrued but unpaid interest to, but excluding,
the date fixed for redemption, by one or more investment banks or other
purchasers who may agree with the Company (i) to purchase such Notes from
the holders thereof and convert them into cash and, if applicable, shares of
Common Stock, and (ii) to make payment for such Notes as aforesaid to the
Trustee in trust for the holders.


 


Upon surrender for
registration of transfer of any Note to the Note Registrar or any co-registrar,
and satisfaction of the requirements for such transfer set forth in the
Indenture, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Notes of any authorized denominations and of a like aggregate principal
amount and bearing such restrictive legends as may be required by this Indenture.
No service charge shall be made to any holder for any registration of, transfer
or exchange of Notes, but the Company may require payment by the holder of a
sum sufficient to cover any tax, assessment or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Notes.


 


The Company, the Trustee,
any Paying Agent, any conversion agent and any Note Registrar may deem the
Person in whose name this Note shall be registered upon the Note Register to
be, and may treat it as, the absolute owner of this Note (whether or not this
Note shall be overdue and notwithstanding any notation of ownership or other
writing thereon made by any Person other than the Company or any Note
Registrar) for the purpose of receiving payment of or on account of the
principal of, premium, if any, and interest on this Note, for conversion of
this Note and for all other purposes; and neither the Company nor the Trustee
nor any Paying Agent nor any conversion agent nor


 


A-11

















 


any Note Registrar shall be
affected by any notice to the contrary. All such payments so made to any holder
for the time being, or upon his order, shall be valid, and, to the extent of
the sum or sums so paid, effectual to satisfy and discharge the liability for
monies payable upon any this Note.


 


No recourse for the payment
of the principal of or any premium or interest on this Note, or for any claim
based hereon or otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture or any
supplemental indenture or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, member, manager, employee, agent, officer, director or subsidiary,
as such, past, present or future, of the Company or of any successor thereto,
either directly or through the Company or any of the Company’s subsidiaries or
of any successor thereto, whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as consideration for, the execution of the
Indenture and the issue of this Note.


 


In addition to the rights
provided to holders of Notes under the Indenture, holders shall have all the
rights set forth in the Registration Rights Agreement dated as of July 18,
2005, between the Company and the Initial Purchasers named therein (the “Registration
Rights Agreement”).


 


A-12

















 


ABBREVIATIONS


 


The following abbreviations,
when used in the inscription of the face of this Note, shall be construed as
though they were written out in full according to applicable laws or
regulations.


 


	
  TEN COM -

  	
   

  	
  as tenants in common

  	
   

  	
  UNIF GIFT MIN ACT - 

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Custodian 

  
	
  TEN ENT -

  	
   

  	
  as tenant by the
  entireties

  	
   

  	
  (Cust) (Minor)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  JT TEN -

  	
   

  	
  as joint tenants with
  right of survivorship and not as tenants in

  common

  	
   

  	
  under Uniform Gifts to
  Minors Act 



  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (State)

  



 


Additional
abbreviations may also be used though not in the above list.


 


A-13

















 


CONVERSION
NOTICE


 


	
  TO:

  	
   

  	
  ADVANCED MEDICAL OPTICS,
  INC.

  
	
   

  	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION, as Trustee

  



 


The undersigned registered
owner of this Note hereby irrevocably exercises the option to convert this
Note, or the portion thereof (which is $1,000 or a multiple thereof) below
designated, into cash and, if applicable, shares of Common Stock of Advanced
Medical Optics, Inc., as applicable, in accordance with the terms of the
Indenture referred to in this Note, and directs that the shares, if any,
issuable and deliverable upon such conversion, together with any check in
payment for cash, if any, payable upon conversion or for fractional shares and
any Notes representing any unconverted principal amount hereof, be issued and
delivered to the registered holder hereof unless a different name has been
indicated below. Capitalized terms used herein but not defined shall have the
meanings ascribed to such terms in the Indenture. If shares or any portion of
this Note not converted are to be issued in the name of a person other than the
undersigned, the undersigned will provide the appropriate information below and
pay all transfer taxes payable with respect thereto. Any amount required to be
paid by the undersigned on account of interest accompanies this Note.


 


	
  Dated:

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

  	
  Signature(s) must be
  guaranteed by an “eligible guarantor institution” meeting the requirements of
  the Note Registrar, which requirements include membership or participation in
  the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature
  guarantee program” as may be determined by the Note Registrar in addition to,
  or in substitution for, STAMP, all in accordance with the Securities Exchange
  Act of 1934, as amended.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature Guarantee

  



 


A-14

















 


Fill in the registration of
shares of Common Stock, if any, if to be issued, and Notes if to be delivered,
and the person to whom cash and payment for fractional shares is to be made, if
to be made, other than to and in the name of the registered holder:


 


Please
print name and address


 


	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Street
  Address)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (City,
  State and Zip Code)

  	
   

  
	
   

  	
   

  
	
  Principal amount to be
  converted

  (if less than all):

  	
   

  
	
   

  	
   

  
	
  $

  	
   

  	
   

  
	
   

  	
   

  
	
  Social Security or Other
  Taxpayer

  Identification Number:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
			



 


NOTICE: The signature on
this Conversion Notice must correspond with the name as written upon the face
of the Note in every particular without alteration or enlargement or any change
whatever.


 


A-15

















 


REPURCHASE
NOTICE


 


	
  TO:

  	
  ADVANCED MEDICAL OPTICS,
  INC.

  
	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION

  



 


The undersigned registered
owner of this Note hereby irrevocably acknowledges receipt of a notice from
Advanced Medical Optics, Inc. (the “Company”) regarding the right of
holders to elect to require the Company to repurchase the Notes and requests
and instructs the Company to repay the entire principal amount of this Note, or
the portion thereof (which is $1,000 or an integral multiple thereof) below
designated, in cash, in accordance with the terms of the Indenture at the price
of 100% of such entire principal amount or portion thereof, together with
accrued and unpaid interest to, but excluding, the Repurchase Date or the
Fundamental Change Repurchase Date, as the case may be, to the registered
holder hereof. Capitalized terms used herein but not defined shall have the
meanings ascribed to such terms in the Indenture. The Notes shall be
repurchased by the Company as of the Repurchase Date or the Fundamental Change
Repurchase Date, as the case may be, pursuant to the terms and conditions
specified in the Indenture.


 


NOTICE: The above signatures
of the holder(s) hereof must correspond with the name as written upon the
face of the Note in every particular without alteration or enlargement or any
change whatever.


 


Note Certificate Number (if
applicable):


 


Principal amount to be
repurchased (if less than all, must be $1,000 or whole multiples thereof):


 


Social Security or Other
Taxpayer Identification Number:


 


A-16

















 


ASSIGNMENT


 


For value received                                                                  
hereby sell(s) assign(s) and transfer(s) unto                                                                  
(Please insert social security or other Taxpayer Identification Number of
assignee) the within Note, and hereby irrevocably constitutes and appoints                                                                  
attorney to transfer said Note on the books of the Company, with full power of
substitution in the premises.


 


In connection with any
transfer of the Note prior to the expiration of the holding period applicable
to sales thereof under Rule 144(k) under the Securities Act (or any
successor provision) (other than any transfer pursuant to a registration
statement that has been declared effective under the Securities Act), the
undersigned confirms that such Note is being transferred:


 


	
  o

  	
   

  	
  To Advanced Medical
  Optics, Inc. or a subsidiary thereof; or

  
	
   

  	
   

  	
   

  
	
  o

  	
   

  	
  To a “qualified institutional
  buyer” in compliance with Rule 144A under the Securities Act of 1933, as
  amended; or

  
	
   

  	
   

  	
   

  
	
  o

  	
   

  	
  Pursuant to and in
  compliance with Rule 144 under the Securities Act of 1933, as amended;
  or

  
	
   

  	
   

  	
   

  
	
  o

  	
   

  	
  Pursuant to a Registration
  Statement which has been declared effective under the Securities Act of 1933,
  as amended, and which continues to be effective at the time of transfer;

  



 


and unless the Note has been
transferred to Advanced Medical Optics, Inc. or a subsidiary thereof, the
undersigned confirms that such Note is not being transferred to an “affiliate”
of the Company as defined in Rule 144 under the Securities Act of 1933, as
amended.


 


Unless one
of the boxes is checked, the Trustee will refuse to register any of the Notes
evidenced by this certificate in the name of any person other than the
registered holder thereof.


 


A-17

















 


	
  Dated:

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

  	
  Signature(s) must be
  guaranteed by an “eligible guarantor institution” meeting the requirements of
  the Note Registrar, which requirements include membership or participation in
  the Security Transfer Agent Medallion Program (“STAMP”) or such other
  “signature guarantee program” as may be determined by the Note Registrar in
  addition to, or in substitution for, STAMP, all in accordance with the
  Securities Exchange Act of 1934, as amended.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature Guarantee

  



 


NOTICE: The signature on
this Assignment must correspond with the name as written upon the face of the
Note in every particular without alteration or enlargement or any change
whatever.


 


A-18

















 


EXHIBIT B


 


FORM OF
RESTRICTIVE LEGEND FOR


COMMON
STOCK ISSUED UPON CONVERSION (2)


 


THE SECURITY EVIDENCED BY
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT OF 1933”), OR ANY STATE SECURITIES LAWS, AND MAY NOT
BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE BY ACQUISITION
HEREOF. THE HOLDER:


 


(1) REPRESENTS
THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT OF 1933; AND


 


(2) AGREES
THAT IT WILL NOT, WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY
UPON THE CONVERSION OF WHICH THE COMMON STOCK EVIDENCED HEREBY WAS ISSUED,
RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT (A) TO
ADVANCED MEDICAL OPTICS, INC. (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, (B) PURSUANT
TO THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE), (C) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT OF 1933 AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER.


 


THE HOLDER OF THIS SECURITY
IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS AGREEMENT (AS SUCH TERM IS
DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF) AND, BY ITS
ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH THE PROVISIONS OF
SUCH REGISTRATION RIGHTS AGREEMENT.


 






 






	
  (2)

  	
  This legend should be
  included only if the Security is a Transfer Restricted Security.

  



 


B-1