exv4w1






Exhibit 4.1




EXECUTION VERSION




Ciena Corporation,




as Issuer,



and



The Bank of New York Mellon Trust Company, N.A.,



as Trustee



INDENTURE



Dated as of October 18, 2010



3.75% Convertible Senior Notes due 2018




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE 1
	 	 	 	 
	Definitions and Incorporation by Reference
	 	 	 	 
	 
	 	 	 	 
	Section 1.01. Definitions.
	 	 	1	 
	Section 1.02. Incorporation by Reference of Trust Indenture Act.
	 	 	11	 
	Section 1.03. Rules of Construction
	 	 	12	 
	 
	 	 	 	 
	ARTICLE 2
	 	 	 	 
	The Notes
	 	 	 	 
	 
	 	 	 	 
	Section 2.01. Form, Dating and Terms.
	 	 	13	 
	Section 2.02. Execution and Authentication.
	 	 	16	 
	Section 2.03. Registrar, Conversion Agent and Paying Agent.
	 	 	17	 
	Section 2.04. Conversion Agent and Paying Agent to Hold Money and Securities in Trust.
	 	 	17	 
	Section 2.05. Holder Lists.
	 	 	18	 
	Section 2.06. Transfer and Exchange; Restrictions on Transfer.
	 	 	18	 
	Section 2.07. Mutilated, Destroyed, Lost or Stolen Notes.
	 	 	22	 
	Section 2.08. Cancellation.
	 	 	23	 
	Section 2.09. Payment of Interest; Defaulted Interest.
	 	 	23	 
	Section 2.10. Additional Interest.
	 	 	24	 
	Section 2.11. Computation of Interest.
	 	 	25	 
	Section 2.12. CUSIP Numbers.
	 	 	25	 
	Section 2.13. Calculations in Respect of the Notes.
	 	 	26	 
	 
	 	 	 	 
	ARTICLE 3
	 	 	 	 
	Covenants
	 	 	 	 
	 
	 	 	 	 
	Section 3.01. Payment of Notes.
	 	 	26	 
	Section 3.02. Maintenance of Office or Agency.
	 	 	26	 
	Section 3.03. Compliance Certificate.
	 	 	27	 
	Section 3.04. Reservation of Common Stock.
	 	 	27	 
	Section 3.05. Issuance of Shares.
	 	 	27	 
	Section 3.06. Transfer Taxes.
	 	 	27	 
	Section 3.07. Reports.
	 	 	28	 
	 
	 	 	 	 
	ARTICLE 4
	 	 	 	 
	Successors
	 	 	 	 
	 
	 	 	 	 
	Section 4.01. Merger, Consolidation, or Sale of Assets.
	 	 	28	 
	Section 4.02. Successor Corporation Substituted.
	 	 	29	 






 









 






	 	 	 	 	 
	 	 	Page
	ARTICLE 5
	 	 	 	 
	[Reserved]
	 	 	 	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	Conversion of Notes
	 	 	 	 
	 
	 	 	 	 
	Section 6.01. Conversion Right and Conversion Rate.
	 	 	29	 
	Section 6.02. Conversion Consideration.
	 	 	30	 
	Section 6.03. Exercise of Conversion Right.
	 	 	30	 
	Section 6.04. Fractions of Shares.
	 	 	32	 
	Section 6.05. Adjustment of Conversion Rate.
	 	 	32	 
	Section 6.06. Notice of Adjustments of Conversion Rate.
	 	 	43	 
	Section 6.07. Cancellation of Converted Notes.
	 	 	43	 
	Section 6.08. Provision in Case of Consolidation, Merger or Sale of Assets.
	 	 	43	 
	Section 6.09. Rights Issued in Respect of Common Stock.
	 	 	44	 
	Section 6.10. Responsibility of Trustee and Conversion Agent for Conversion Provisions.
	 	 	45	 
	 
	 	 	 	 
	ARTICLE 7
	 	 	 	 
	Defaults and Remedies
	 	 	 	 
	 
	 	 	 	 
	Section 7.01. Events of Default.
	 	 	45	 
	Section 7.02. Acceleration.
	 	 	48	 
	Section 7.03. Other Remedies.
	 	 	49	 
	Section 7.04. Waiver of Past Defaults.
	 	 	49	 
	Section 7.05. Control by Majority.
	 	 	50	 
	Section 7.06. Limitation on Suits.
	 	 	50	 
	Section 7.07. Rights of Holders of Notes to Receive Payment or Effect Conversion.
	 	 	50	 
	Section 7.08. Collection Suit by Trustee.
	 	 	51	 
	Section 7.09. Trustee May File Proofs of Claim.
	 	 	51	 
	Section 7.10. Priorities.
	 	 	51	 
	Section 7.11. Undertaking for Costs.
	 	 	52	 
	 
	 	 	 	 
	ARTICLE 8
	 	 	 	 
	Trustee
	 	 	 	 
	 
	 	 	 	 
	Section 8.01. Duties of Trustee.
	 	 	52	 
	Section 8.02. Rights of Trustee.
	 	 	54	 
	Section 8.03. Individual Rights of Trustee
	 	 	55	 
	Section 8.04. Trustee’s Disclaimer
	 	 	56	 
	Section 8.05. Notice of Defaults
	 	 	56	 
	Section 8.06. Reports by Trustee to Holders
	 	 	56	 
	Section 8.07. Compensation and Indemnity
	 	 	56	 
	Section 8.08. Replacement of Trustee
	 	 	57	 






ii









 






	 	 	 	 	 
	 	 	Page
	Section 8.09. Successor Trustee by Merger
	 	 	58	 
	Section 8.10. Eligibility; Disqualification
	 	 	58	 
	Section 8.11. Preferential Collection of Claims Against Company
	 	 	59	 
	 
	 	 	 	 
	ARTICLE 9
	 	 	 	 
	Satisfaction and Discharge of Indenture; Unclaimed Moneys
	 	 	 	 
	 
	 	 	 	 
	Section 9.01. Satisfaction and Discharge of Indenture
	 	 	59	 
	Section 9.02. Application of Funds or Securities Deposited for Payment of Notes
	 	 	59	 
	Section 9.03. Repayment by Trustee, Paying Agent or Conversion Agent
	 	 	60	 
	 
	 	 	 	 
	ARTICLE 10
	 	 	 	 
	Supplemental Indentures and Amendments
	 	 	 	 
	 
	 	 	 	 
	Section 10.01. Without Consent of Holders
	 	 	60	 
	Section 10.02. With Consent of Holders
	 	 	61	 
	Section 10.03. Execution of Supplemental Indentures, Agreements and Waivers
	 	 	62	 
	Section 10.04. Effect of Supplemental Indentures
	 	 	62	 
	Section 10.05. Compliance with Trust Indenture Act
	 	 	63	 
	Section 10.06. Reference in Notes to Supplemental Indentures
	 	 	63	 
	Section 10.07. Revocation and Effect of Consents and Waivers
	 	 	63	 
	Section 10.08. Notation on or Exchange of Notes
	 	 	63	 
	 
	 	 	 	 
	ARTICLE 11
	 	 	 	 
	Offer to Repurchase Upon a Fundamental Change
	 	 	 	 
	 
	 	 	 	 
	Section 11.01. Purchase of Notes at Option of Holder Upon a Fundamental Change
	 	 	64	 
	Section 11.02. Fundamental Change Repurchase Right Notice
	 	 	65	 
	Section 11.03. Fundamental Change Repurchase Notice
	 	 	65	 
	Section 11.04. Effect of Purchase of Notes Upon a Fundamental Change
	 	 	66	 
	Section 11.05. Covenant to Comply with Securities Laws Upon Purchase of Notes
	 	 	66	 
	Section 11.06. Covenants of Company and Paying Agent Upon Purchase of Notes
	 	 	67	 
	Section 11.07. Withdrawal of Fundamental Change Repurchase Notice and Effect Thereof
	 	 	67	 
	Section 11.08. Covenants of Trustee Upon Purchase of Notes
	 	 	68	 
	 
	 	 	 	 
	ARTICLE 12
	 	 	 	 
	Miscellaneous
	 	 	 	 
	 
	 	 	 	 
	Section 12.01. Trust Indenture Act Controls
	 	 	68	 
	Section 12.02. Notices
	 	 	68	 
	Section 12.03. Communication by Holders with Other Holders
	 	 	69	 
	Section 12.04. Certificate and Opinion as to Conditions Precedent
	 	 	69	 
	Section 12.05. Statements Required in Certificate or Opinion
	 	 	70	 






iii









 






	 	 	 	 	 
	 	 	Page
	Section 12.06. When Notes Disregarded
	 	 	70	 
	Section 12.07. Rules by Trustee, Paying Agent and Registrar
	 	 	70	 
	Section 12.08. Governing Law
	 	 	70	 
	Section 12.09. No Recourse Against Others
	 	 	70	 
	Section 12.10. Successors
	 	 	71	 
	Section 12.11. Multiple Originals
	 	 	71	 
	Section 12.12. Force Majeure
	 	 	71	 
	Section 12.13. Not Responsible for Recitals or Issuance of Notes
	 	 	71	 
	Section 12.14. Waiver of Jury Trial
	 	 	71	 






EXHIBITS




EXHIBIT A Form of Note




EXHIBIT B Form of Conversion Notice




EXHIBIT C Form of Fundamental Change Repurchase Notice




iv









 




INDENTURE, dated as of October 18, 2010, between Ciena Corporation, a corporation incorporated
under the laws of the State of Delaware (the “Company”), as issuer and The Bank of New York Mellon
Trust Company, N.A., a national banking association (the “Trustee”), as trustee.




RECITALS OF THE COMPANY




     The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance of an unlimited principal amount of the Company’s 3.75% Convertible Senior Notes due
2018, convertible into common stock, par value $0.01 per share, of the Company (the “Notes”).



     All things necessary have been done to make the Notes, when executed by the Company and
authenticated and delivered hereunder and duly issued by the Company, the valid and legally binding
obligations of the Company and to make this Indenture a valid and legally binding agreement of each
of the Company and the Trustee in accordance with the terms hereof.



     Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders of the Notes:



ARTICLE 1

Definitions and Incorporation by Reference




     Section 1.01 . Definitions.



     “Additional Interest” means all amounts, if any, payable pursuant to Section 2.10(a) or
Section 7.01, as applicable.



     “Additional Notes” means additional Notes (other than the Initial Notes), if any, issued under
this Indenture in accordance with Section 2.02 hereof, as part of the same series as the Initial
Notes.



     “Additional Shares” means additional shares of Common Stock by which the Conversion Rate shall
be increased for Notes surrendered for conversion pursuant to an adjustment of the Conversion Rate
upon the occurrence of a Make-whole Fundamental Change. The number of Additional Shares shall be
determined based on the Effective Date of the Make-whole Fundamental Change and the Stock Price in
such Make-whole Fundamental Change transaction, all in accordance with Section 6.05(f).



     “Affiliate” means, with respect to any specified Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common control with such
specified Person. For the purposes of this definition, “control” when used with respect to any
specified Person means the power to direct the management and policies of



 









 




such Person, directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to
the foregoing. No individual shall be deemed to be controlled by or under common control with any
specified Person solely by virtue of his or her status as an employee or officer of such specified
Person or of any other Person controlled by or under common control with such specified Person.
Notwithstanding the foregoing, for the purpose of Section 2.10, “Affiliate” has the meaning set
forth in Rule 144 under the Securities Act.




     “Agent” means any Authenticating Agent, Registrar, co-registrar, Paying Agent, additional
paying agent or Conversion Agent.



     “Agent Members” has the meaning set forth in Section 2.01(e)(ii).



     “Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial
interests in, or any repurchase or conversion of, any Global Note, the rules and procedures of the
Depositary that apply to such transfer, exchange, repurchase or conversion.



     “Authenticating Agent” has the meaning set forth in Section 2.02.



     “Bankruptcy Law” means Title 11, United States Code or any similar federal or state law
relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or relief
of debtors or the law of any other jurisdiction relating to bankruptcy, insolvency, receivership,
winding-up, liquidation, reorganization or relief of debtors or any amendment to, succession to or
change in any such law.



     “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 under the Exchange Act.
The terms “Beneficial Ownership” and “Beneficially Owns” have a corresponding meaning.



     “Board of Directors” means the board of directors of the Company or any duly authorized
committee thereof.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the Trustee.



     “Business Day” means each day that is not a Saturday, Sunday or other day on which banking
institutions in New York City are authorized or required by law, regulation or executive order to
close.



     “Capital Stock” means:



     (1) in the case of a corporation, corporate stock;



2









 





     (2) in the case of an association or business entity, shares, interests, participations,
rights or other equivalents (however designated) of corporate stock;



     (3) in the case of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and



     (4) any other interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of the assets of, the issuing Person.



     “close of business” means 5:00 p.m., New York City time.



     “Closing Sale Price” means, with respect to the Common Stock or any other security for which a
Closing Sale Price must be determined, on any date, the last reported closing price per share of
Common Stock or unit of such security (or, if no last closing price is reported, the average of the
last bid and ask prices or, if more than one in either case, the average of the average bid and the
average ask prices) on such date as reported in composite transactions for the principal U.S.
securities exchange on which the Common Stock or such security is then listed or, if the Common
Stock or such security is not listed on a U.S. national or regional exchange, the “Closing Sale
Price” will be the last quoted bid price for the Common Stock in the over-the-counter market on the
relevant dates as reported by the Pink OTC Markets Inc. or any similar U.S. system of automated
dissemination of quotations of securities prices. If the Common Stock or such security is not so
traded, the “Closing Sale Price” will be the price as reported on the principal other market on
which the Common Stock or such security is then traded. In the absence of such quotations, the
Company’s Board of Directors will make a good faith determination of the Closing Sale Price.



     “Commission” means the Securities and Exchange Commission.



     “Common Stock” means the common stock of the Company, par value $0.01 per share, as it exists
on the date of this Indenture, subject to any transaction described in Section 6.08, in which case
all references to Common Stock in this Indenture shall thereafter be references to Reference
Property.



     “Company” means Ciena Corporation, a corporation incorporated under the laws of Delaware, and,
subject to Article IV, its successors and assigns.



     “Company Order” has the meaning set forth in Section 2.02.



     “Continuing Directors” means, as of any date of determination, any member of the board of
directors of the Company who:



     (1) was a member of such board of directors on the date of this Indenture; or



     (2) becomes a member of the board of directors of the Company subsequent to that date and was
appointed, nominated for election or elected to such board of directors



3









 




with the approval of (a) a majority of the Continuing Directors who were members of such board
of directors at the time of such appointment, nomination or election, or (b) a majority of the
Continuing Directors that were serving at the time of such appointment, nomination or election on a
committee of the board of directors that appointed or nominated for election or reelection such
board member.




     “Conversion Agent” means the office or agency designated by the Company where Notes may be
presented for conversion, initially the Trustee.



     “Conversion Date” has the meaning set forth in Section 6.03(a).



     “Conversion Notice” has the meaning set forth in Section 6.03(a).



     “Conversion Price” shall equal $1,000 divided by the Conversion Rate (rounded to the nearest
cent).



     “Conversion Rate” has the meaning set forth in Section 6.01(c), subject to adjustment as
provided in this Indenture.



     “Corporate Trust Office” means the designated corporate trust office of the Trustee at which
at any time its corporate trust business shall be administered, which office at the date hereof is
located at 525 William Penn Place, 38th Floor, Pittsburgh, Pennsylvania 15259, Attention: Corporate
Trust Administration, or such other address as the Trustee may designate from time to time by
notice to the Holders and the Company, or the designated corporate trust office of any successor
Trustee (or such other address as such successor Trustee may designate from time to time by notice
to the Holders and the Company).



     “Current Market Price” as of any date means:



     (1) for the purpose of any computation under Section 6.05(a) (except for clauses (v), (vi) and
(viii) thereof), the average of the Closing Sale Prices for the five consecutive Trading Days
ending on the Trading Day prior to the earlier of the record date or the ex-dividend date for the
event triggering such adjustment;



     (2) for the purpose of any computation under Section 6.05(a)(v), the average of the Closing
Sale Prices of the Common Stock for the ten consecutive Trading Days following, and including the
ex-dividend date for the related Spin-Off;



     (3) for the purpose of any computation under Section 6.05(a)(vi), the average of the Closing
Sale Prices for the five consecutive Trading Days ending on the Trading Day prior to the
ex-dividend date for the related cash distribution; and



     (4) for the purpose of any computation under Section 6.05(a)(viii) (including Market
Capitalization), the average of the Closing Sale Prices for the five consecutive



4









 




Trading Days beginning on the Trading Day immediately following the date of the repurchase
triggering the adjustment.




     “Default” means an event that is, or after notice or passage of time, or both, would be an
Event of Default with respect to the Notes.



     “Defaulted Interest” has the meaning set forth in Section 2.09.



     “Definitive Notes” means the Notes that are in registered definitive form.



     “Depositary” means The Depository Trust Company, its nominees and their respective successors
and assigns, or such other depositary institution hereinafter appointed by the Company.



     “Distributed Assets” has the meaning set forth in Section 6.05(a)(iv).



     “Effective Date” means the date on which a Make-whole Fundamental Change becomes effective.



     “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).



     “Event of Default” means any event or condition specified as such in Section 7.01.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.



     “ex-dividend date” when used with respect to any issuance or distribution shall mean the first
date upon which a sale of shares of Common Stock does not automatically transfer the right to
receive the relevant dividend or distribution from the seller of such Common Stock to the buyer.



     “Expiration Date” has the meaning set forth in Section 6.05(a)(vii).



     “Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated
willing seller in a transaction not involving distress or necessity of either party, determined in
good faith by the Board of Directors of the Company.



     “Fundamental Change” means the occurrence at the time after the Notes are originally issued of
any of the following:



     (1) the Common Stock (or other Reference Property into which the Notes are convertible) is
neither traded on The NASDAQ Global Select Market, The NASDAQ Global Market, the New York Stock
Exchange or another U.S. national securities



5









 




exchange or quoted on an established automated over-the-counter trading market in the United
States; or




     (2) any Person acquires Beneficial Ownership, directly or indirectly, through a purchase,
merger or other acquisition transaction or series of transactions, of shares of the Company’s
Capital Stock entitling such Person to exercise 50% or more of the total voting power of all shares
of the Company’s Capital Stock entitled to vote generally in elections of directors, other than an
acquisition by the Company, any of its Subsidiaries or any of the Company’s employee benefit plans;
or



     (3) the Company merges or consolidates with or into any other Person (other than a Subsidiary
of the Company), another Person (other than a Subsidiary of the Company) merges with or into the
Company, or the Company conveys, sells, transfers or leases all or substantially all of the
Company’s assets to another Person, other than any transaction:



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



     (b) pursuant to which the holders of 50% or more of the total voting power of all shares of
the Company’s Capital Stock entitled to vote generally in elections of directors immediately prior
to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the
total voting power of all shares of Capital Stock entitled to vote generally in elections of
directors of the continuing or surviving Person immediately after such transaction; or



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



     (4) at any time the Continuing Directors do not constitute a majority of the Company’s Board
of Directors (or, if applicable, a successor Person to the Company).



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



     “Fundamental Change Notice” has the meaning set forth in Section 11.01(c).



     “Fundamental Change Repurchase Date” has the meaning set forth in Section 11.01(a).



     “Fundamental Change Repurchase Notice” has the meaning set forth in Section 11.03.



     “Fundamental Change Repurchase Price” has the meaning set forth in Section 11.01(a)



6









 





     “Fundamental Change Repurchase Right Notice” has the meaning set forth in Section 11.02.



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant segment of the
accounting profession of the United States, as in effect on the date hereof.



     “Global Notes” means Notes that are in the form of the Note attached hereto as Exhibit A and
that are issued to a Depositary.



     “guarantee” means, as applied to any obligation, (i) a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business), direct or indirect, in
any manner, of any part or all of such obligation and (ii) an agreement, direct or indirect,
contingent or otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or any part of such
obligation. A guarantee shall include, without limitation, any agreement to maintain or preserve
any other Person’s financial condition or to cause any other Person to achieve certain levels of
operating results.



     “Holder” means a Person in whose name a Note is registered.



     “Indebtedness” of any Person means indebtedness for borrowed money and indebtedness under
purchase money Liens or conditional sales or similar title retention agreements, in each case where
such indebtedness has been created, incurred, or assumed by such Person to the extent such
indebtedness would appear as a liability upon a balance sheet of such Person prepared in accordance
with GAAP, guarantees by such Person of such indebtedness, and indebtedness for borrowed money
secured by any Lien, pledge or other lien or encumbrance upon property owned by such Person, even
though such Person has not assumed or become liable for the payment of such indebtedness.



     “Indenture” means this Indenture as amended or supplemented from time to time, including, for
all purposes of this instrument and any supplemental indenture or amendment hereto, the provisions
of the TIA that are deemed to be a part of and govern this instrument and any such supplemental
indenture or amendment, respectively.



     “Initial Notes” means the $350,000,000 aggregate principal amount of Notes issued under this
Indenture on the date hereof.



     “Interest Payment Date” has the meaning set forth in the form of Note attached hereto as
Exhibit A.



     “Lien” means any security interest, pledge, lien or other encumbrance.



7









 





     “Make-whole Fundamental Change” has the meaning set forth in Section 6.05(f).



     “Market Capitalization” means the product of (1) the Current Market Price of the Common Stock
and (2) the number of shares of Common Stock then outstanding on the date of the repurchase of
Common Stock triggering the adjustment set forth in Section 6.05(a)(viii) hereof immediately prior
to such repurchase.



     “Note” or “Notes” has the meaning stated in the first recital of this Indenture or, as the
case may be, means Notes that have been authenticated and delivered pursuant to this Indenture,
including the Global Note(s). The Initial Notes and the Additional Notes, if any, shall be treated
as a single class for all purposes under this Indenture, and unless the context otherwise requires,
all references to the Notes shall include the Initial Notes and any Additional Notes.



     “Note Register” has the meaning set forth in Section 2.03.



     “Notes Custodian” means the Trustee or any Person appointed by the Trustee to act as custodian
of Global Notes for the Depositary.



     “Officer” means an Executive Chairman of the Board, an Executive Vice President, a Senior Vice
President, the President, a Vice President, the Secretary, an Assistant Secretary, the Treasurer or
an Assistant Treasurer of the Company.



     “Officers’ Certificate” means a certificate in a form reasonably acceptable to the Trustee and
signed by any two Officers of the Company. Each such certificate shall include the statements
provided for in Section 12.05, if and to the extent required by the provisions of Section 12.04.



     “opening of business” means 9:00 a.m., New York City time.



     “Opinion of Counsel” means a written opinion reasonably acceptable to the Trustee from legal
counsel, which counsel may be an employee of, or counsel to, the Company. Each such opinion shall
include the statements provided for in Section 12.05, if and to the extent required by the
provisions of Section 12.04.



     “Outstanding”, when used with respect to Notes, means, as of the date of determination, all
Notes theretofore authenticated and delivered under this Indenture, except:



     (1) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation
(including Notes converted and cancelled pursuant to this Indenture);



     (2) Notes for whose payment money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set



8









 




aside and segregated in trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Notes; and




     (3) Notes which have been paid pursuant to Section 2.07 or in exchange for or in lieu of which
other Notes have been authenticated and delivered pursuant to this Indenture, other than any such
Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it
that such Notes are held by a bona fide purchaser in whose hands such Notes are valid obligations
of the Company;


provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Notes have given, made or taken any request, demand, authorization, direction, notice,
consent, waiver or other action hereunder, Notes owned by the Company or any other obligor upon the
Notes or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent, waiver or other action,
only Notes which a Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with
respect to such Notes and that the pledgee is not the Company or any other obligor upon the Notes
or any Affiliate of the Company or of such other obligor.



Upon the written 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
by, held by or for the account of the Company, or any other obligor on the Notes or any Affiliate
of the Company or such obligor, and subject to the provisions of Section 8.02, 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.




     “Paying Agent” means the office or agency designated by the Company where Notes may be
presented for payment, initially the Trustee.



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



     “protected purchaser” has the meaning set forth in Section 2.07.



     “Record Date Period” means the period from the close of business on any Regular Record Date
immediately preceding any Interest Payment Date to the opening of business on such Interest Payment
Date.



     “Reference Property” has the meaning set forth in Section 6.08.



9









 





     “Registrar” means the office or agency maintained by the Company where Notes may be presented
for registration of transfer or exchange, initially the Trustee.



     “Regular Record Date” has the meaning set forth in the form of Note attached hereto as Exhibit
A.



     “Reporting Default” has the meaning set forth in Section 7.01.



     “Repurchase Premium” has the meaning set forth in Section 6.05(a)(viii).



     “Responsible Officer” means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of such
person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.



     “Restricted Securities” shall have the meaning set forth in Section 2.06(c).



     “Securities Act” means the Securities Act of 1933, as amended.



     “Settlement” has the meaning set forth in Section 6.03(c).



     “Special Interest Payment Date” has the meaning set forth in Section 2.09(a).



     “Special Record Date” has the meaning set forth in Section 2.09(a).



     “Spin-off” has the meaning set forth in Section 6.05(a)(v).



     “Stated Maturity,” when used with respect to the Notes, means October 15, 2018.



     “Stock Price” means, with respect to a Make-whole Fundamental Change, the price paid per share
of Common Stock in such Make-whole Fundamental Change; provided that (1) if holders of Common Stock
receive only cash in such Make-whole Fundamental Change, the Stock Price will be the cash amount
paid per share of Common Stock and (2) in any other Make-whole Fundamental Change, the Stock Price
will be the average of the Closing Sale Prices on each of the five consecutive Trading Days prior
to but not including the Effective Date of such Make-whole Fundamental Change.



     “Subsidiary” means any corporation or other business entity of which at least a majority of
the outstanding stock or membership or other interest, as the case may be, having voting power
under ordinary circumstances to elect a majority of the board of directors, managers or other
governing body of such corporation or business entity or otherwise direct the business and affairs
of said corporation or business entity is at the



10









 




time owned or controlled by the Company, or by the Company and one or more Subsidiaries, or by
any one or more Subsidiaries.




     “TIA” or “Trust Indenture Act” means the Trust Indenture Act of 1939 (15 U.S.C. §§
77aaa-77bbbb), as in effect from time to time.



     “Trading Day” means a day during which trading in securities generally occurs on The NASDAQ
Global Select Market, or, if the Common Stock is not then traded on The NASDAQ Global Select
Market, then on The New York Stock Exchange, The NASDAQ Global Market or another national or
regional securities exchange on which the Common Stock is then listed or, if the Common Stock is
not listed on a national or regional securities exchange, on the principal other market on which
the Common Stock is then traded or quoted. If the Common Stock is not so listed, traded or quoted,
then “Trading Day” shall have the same meaning as “Business Day.”



     “transfer” shall have the meaning set forth in Section 2.06(c).



     “Trigger Event” has the meaning set forth in Section 6.05(a)(iv).



     “Trustee” means the Person identified as “Trustee” in the first paragraph hereof and, subject
to the provisions of Article VIII, shall also include any successor trustee.



     “Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from time to
time in the State of New York.



     Section 1.02 . Incorporation by Reference of Trust Indenture Act.



     This Indenture is subject to the mandatory provisions of the TIA, which are incorporated by
reference in and made a part of this Indenture. The following TIA terms have the following
meanings:



     “indenture securities” means the Notes.



     “indenture security holder” means a Holder.



     “indenture to be qualified” means this Indenture.



     “indenture trustee” or “institutional trustee” means the Trustee.



     “obligor” on the indenture securities means the Company and any other obligor on the indenture
securities.



     All other TIA terms used in this Indenture that are defined by the TIA, defined by the TIA by
reference to another statute or defined by Commission rule have the meanings assigned to them by
such definitions.



11









 





     Section 1.03 . Rules of Construction. Unless the context otherwise requires:



     (1) a term has the meaning assigned to it;



     (2) an accounting term not otherwise defined has the meaning assigned to it in accordance with
GAAP;



     (3) “or” is not exclusive;



     (4) words in the singular include the plural and words in the plural include the singular;



     (5) the principal amount of any non-interest bearing or other discount security at any date
shall be the principal amount thereof that would be shown on a balance sheet of the issuer dated
such date prepared in accordance with GAAP;



     (6) the table of contents and headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not intended to be considered a part hereof
and shall not modify or restrict any of the terms or provisions hereof;



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



     (8) all references to “$” or “dollars” shall refer to the lawful currency of the United States
of America;



     (9) the words “include,” “included” and “including” as used herein shall be deemed in each
case to be followed by the phrase “without limitation,” if not expressly followed by such phrase or
the phrase “but not limited to”;



     (10) references to sections of or rules under the Securities Act, the Exchange Act or the TIA
shall be deemed to include substitute, replacement or successor sections or rules adopted by the
Commission from time to time thereunder;



     (11) any reference to a Section or Article refers to such Section or Article of this Indenture
unless otherwise indicated; and



     (12) all references to “interest” shall be deemed to include Additional Interest, if any,
payable pursuant to Section 2.10(a) or Section 7.01.



12









 





ARTICLE 2

The Notes




     Section 2.01 . Form, Dating and Terms.



     (a) The Notes shall be known and designated as 3.75% Convertible Senior Notes due
2018. Pursuant to the provisions of Article VI, the Notes shall be convertible into Common Stock.
Subject to the terms of this Indenture the Company may, at its option, without consent from the
Holders, issue Additional Notes from time to time in the future with the same terms and the same
CUSIP number as the Initial Notes offered in an unlimited principal amount; provided that such
Additional Notes must be part of the same issue as the Initial Notes for U.S. federal income tax
purposes. For all purposes under this Indenture, the term “Notes” shall include the Initial Notes
and any such Additional Notes issued after the date of this Indenture.



     Notes may be authenticated and delivered upon registration or transfer of, or in lieu of,
other Notes pursuant to Section 2.06, 2.07 or 10.08.



     The Notes may have notations, legends or endorsements required by law, stock exchange rule or
usage, in addition to those set forth on Exhibit A. The Company and the Trustee shall approve the
forms of the Notes and any notation, endorsement or legend on them. Each Note shall be dated the
date of its authentication. The terms of the Note set forth in Exhibit A are part of the terms of
this Indenture and, to the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to be bound by such terms.



     The principal of and interest on the Notes shall be payable at the office or agency of the
Company maintained for such purpose in New York City, which shall initially be the Trustee as set
forth in Section 2.03. At the Company’s option, however, the Company may make such payments by
mailing a check to the registered address of each Holder thereof as such address as shall appear on
the Note Register; provided that Notes represented by a Global Note will be paid by wire transfer
of immediately available funds to the accounts specified by the Depositary in accordance with the
settlement procedures of the Depositary, and all other Notes with an aggregate principal amount in
excess of $2.0 million will be paid by wire transfer of immediately available funds if the Holders
have provided wire transfer instructions at least 10 Business Days prior to the payment date to the
Company or the Paying Agent. If a payment date is a date other than a Business Day, payment may be
made at that place on the next succeeding day that is a Business Day. The payment made on the next
succeeding Business Day shall be treated as though it were paid on the original due date and no
interest shall accrue for the intervening period.



     (b) The Notes shall be initially issued in the form of one or more permanent Global
Notes, without interest coupons, substantially in the form of Exhibit A. Such Global Notes shall be
deposited on behalf of the purchasers of the Notes represented



13









 




thereby with the Notes Custodian for the Depositary for the accounts of participants in the
Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided.
The aggregate principal amount of a Global Note may from time to time be increased or decreased by
adjustments made on the records of the Notes Custodian, as hereinafter provided.




     (c) The Notes shall be issuable only in fully registered form, without coupons, and
only in denominations of $2,000 or in integral multiples of $1,000 in excess thereof.



     (d) Each Global Note shall bear the following legend:




“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (“DEPOSITARY”), OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE
COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS THE OWNER AND HOLDER OF THIS SECURITY FOR ALL
PURPOSES. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY 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
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT 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.




TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART,
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY, AND TRANSFERS OF PORTIONS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.”



     (e) The following book-entry provisions shall apply to Global Notes deposited with
the Notes Custodian:



14









 






     (i) Each Global Note initially shall (x) be registered in the name of the
Depositary for such Global Note or the nominee of such Depositary and (y) be delivered to
the Notes Custodian.




     (ii) Except as provided herein, members of, or participants in, the
Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depositary or by the Notes Custodian or under such
Global Note, and the Depositary may be treated by the Company, the Trustee, the Notes
Custodian and any agent of the Company or the Trustee as the absolute owner 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 Trustee from giving
effect to any written certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and its Agent Members, the operation of
customary practices of the Depositary governing the exercise of the rights of a Beneficial
Owner of an interest in any Global Note.




     (iii) The registered Holder of a Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action that a Holder is entitled to take under this Indenture or
the Notes.




     (iv) In connection with the transfer of an entire Global Note to Beneficial
Owners pursuant to Section 2.01(f), such Global Note shall be deemed to be surrendered to
the Trustee for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each Beneficial Owner identified by the Depositary in exchange
for its beneficial interest in such Global Note, an equal aggregate principal amount of
Definitive Notes of authorized denominations. The definitive securities shall be printed,
lithographed or engraved or produced by any combination of these methods, if required by
any securities exchange on which the Notes may be listed, on a steel engraved border or
steel engraved borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Notes may be listed, all as determined by the officers
executing such Notes, as evidenced by their execution of such Notes.




     (v) Any Holder of a Global Note shall, by acceptance of such Global Note,
agree that transfers of beneficial interests in such Global Note may be effected only
through a book-entry system maintained by (a) the Holder of such Global Note (or its agent)
or (b) any Holder of a beneficial interest in such Global Note, and that ownership of a
beneficial interest in such Global Note shall be required to be reflected in a book entry.



     (f) Owners of beneficial interests in Global Notes will not be entitled to receive
Definitive Notes; provided, however, Definitive Notes shall be transferred to all



15









 




Beneficial Owners in exchange for their beneficial interests in a Global Note if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as depositary for such
Global Note, (ii) the Depositary ceases to be a clearing agency registered under the Exchange Act,
at a time when the Depositary is required to be so registered in order to act as Depositary, or
(iii) an Event of Default has occurred. The Company shall promptly deliver a copy of any notice
referred to in the foregoing sentence to the Trustee.




     Section 2.02 . Execution and Authentication.



     An Officer shall sign the Notes for the Company by manual or facsimile signature. If an
Officer whose signature is on a Note no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.



     A Note shall not be valid until an authorized signatory of the Trustee manually authenticates
the Note. The signature of the Trustee on a Note shall be conclusive evidence that such Note has
been duly and validly authenticated and issued under this Indenture.



     The Trustee will, upon receipt of a written order of the Company signed by an Officer of the
Company (a “Company Order”), authenticate Notes, including any Additional Notes, in an unlimited
aggregate principal amount, subject to the provisions of this Indenture. Each Company Order will
specify the amount of Notes to be authenticated, the date on which the Notes are to be
authenticated and, in the case of Additional Notes, the issue price of such Notes.



     The Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable to the
Company to authenticate the Notes. Unless limited by the terms of such appointment, any such
Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such Authenticating Agent.



     In case the Company pursuant to Article 4 shall be consolidated or merged with or into any
other Person or shall convey, transfer, lease or otherwise dispose of its properties and assets
substantially as an entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company shall have been merged, or the
Person that shall have received a conveyance, transfer, lease or other disposition as aforesaid,
shall have executed an indenture supplemental hereto with the Trustee pursuant to Article 4, any of
the Notes authenticated or delivered prior to such consolidation, merger, conveyance, transfer,
lease or other disposition may, from time to time, at the request of the successor Person, be
exchanged for other Notes executed in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in substance of like tenor as the Notes
surrendered for such exchange and of like principal amount; and the Trustee, upon Company Order of
the successor Person, shall authenticate and deliver Notes as specified in such order for the
purpose of such exchange. If Notes shall at any time be authenticated and delivered in



16









 




any new name of a successor Person pursuant to this Section 2.02 in exchange or substitution
for or upon registration of transfer of any Notes, such successor Person, at the option of the
Holders but without expense to them, shall provide for the exchange of all Notes at the time
Outstanding for Notes authenticated and delivered in such new name.




     Section 2.03 . Registrar, Conversion Agent and Paying Agent.



     The Trustee shall initially serve as the Registrar, Conversion Agent and Paying Agent for the
Notes. The Registrar, the Conversion Agent and the Paying Agent shall each maintain an office or
agency in the Borough of Manhattan, New York City. The Registrar shall keep a register of the Notes
and of their transfer and exchange (the “Note Register”). The Company may have one or more
co-registrars and one or more additional conversion agents and paying agents. The term Paying Agent
includes any additional paying agents, the term Conversion Agent includes any additional conversion
agents and the term Registrar includes any co-registrar. The Company may appoint and change any
Paying Agent, Conversion Agent or Registrar without prior notice to any Holder.



     The Company shall enter into an appropriate agency agreement with any Registrar, Conversion
Agent or Paying Agent not a party to this Indenture, which shall incorporate the terms of the TIA.
The agreement shall implement the provisions of this Indenture that relate to such agent. The
Company shall notify the Trustee in writing of the name and address of each such agent. If the
Company fails to maintain a Registrar, Conversion Agent or Paying Agent, the Trustee shall act as
such and shall be entitled to appropriate compensation therefor pursuant to Section 8.07. The
Company or any of its domestically incorporated Subsidiaries may act as Paying Agent, Conversion
Agent or Registrar.



     The Company may remove any Registrar, Conversion Agent or Paying Agent upon written notice to
such Registrar, Conversion Agent or Paying Agent and to the Trustee; provided, however, that no
such removal shall become effective until (i) acceptance of any appointment by a successor as
evidenced by an appropriate agreement entered into by the Company and such successor Registrar,
Conversion Agent or Paying Agent, as the case may be, and such agreement is delivered to the
Trustee or (ii) notification to the Trustee that the Trustee shall serve as Registrar, Conversion
Agent or Paying Agent until the appointment of a successor in accordance with clause (i) above. The
Registrar, Conversion Agent or Paying Agent may resign at any time upon written notice to the
Company and the Trustee.



     Section 2.04 . Conversion Agent and Paying Agent to Hold Money and Securities in Trust.



     Except as otherwise provided herein, on or prior to 10:00 a.m. (New York City time) on each
due date of payment or settlement date of conversion in respect of any Note, the Company shall
deposit with the Paying Agent or Conversion Agent, as applicable, a sum of money (in immediately
available funds) and any property due upon conversion



17









 




sufficient to make such payments or conversion when due. The Company shall require each Paying
Agent or Conversion Agent (other than the Trustee) to agree in writing that such Paying Agent or
Conversion Agent shall hold in trust for the benefit of Holders or the Trustee all money or
property held by such Paying Agent or Conversion Agent for the payment of principal of, interest
on, and other payments and conversion in respect of the Notes, and shall notify the Trustee in
writing of any default by the Company in making any such payment or conversion. If the Company or a
Subsidiary acts as Paying Agent or Conversion Agent, it shall segregate the money or property held
by it as Paying Agent or Conversion Agent and hold it as a separate trust fund for the benefit of
the Holders of the Notes. The Company at any time may require a Paying Agent or Conversion Agent
(other than the Trustee) to pay all money or property held by it to the Trustee and to account for
any funds disbursed by such Paying Agent or Conversion Agent. Upon complying with this Section
2.04, the Paying Agent or Conversion Agent (if other than the Company or a Subsidiary) shall have
no further liability for the money or property delivered to the Trustee. Upon any bankruptcy,
reorganization or similar proceeding with respect to the Company, the Company and any of its
Subsidiaries shall not serve as Paying Agent and Conversion Agent for the Notes.




     Section 2.05 . Holder Lists.



     The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders and shall otherwise comply with TIA §
312(a). If the Trustee is not the Registrar or to the extent otherwise required under the TIA, the
Company, on its own behalf, shall furnish to the Trustee, in writing at least seven Business Days
before each Interest Payment Date and at such other times as the Trustee may reasonably request in
writing within 15 days, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders and the Company shall otherwise comply with TIA §
312(a).



     Section 2.06 . Transfer and Exchange; Restrictions on Transfer.



     (a) The Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.01 or this Section 2.06 until the Notes have matured
and been paid in full. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time during regular business
hours upon the giving of reasonable prior written notice to the Registrar.



     (b) The following obligations with respect to transfers and exchanges of Notes shall
apply:




     (i) To permit registrations of transfers and exchanges, the Company shall,
subject to the other terms and conditions of this Article II, execute and the Trustee shall
upon receipt of a Company Order, authenticate Definitive Notes and Global Notes at the
Registrar’s request.



18









 






     (ii) No service charge shall be made to a Holder for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax, assessments or similar governmental charge payable in connection therewith
(other than any such transfer taxes, assessments or similar governmental charges payable
upon exchange or transfer pursuant to Section 3.06).




     (iii) Except as provided herein, prior to the due presentation for
registration of transfer of any Note, the Company, the Trustee, Paying Agent, the
Conversion Agent or the Registrar may deem and treat the Person in whose name a Note is
registered as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Note and for all other purposes whatsoever, whether or
not such Note is overdue, and none of the Company, the Trustee, the Paying Agent, the
Conversion Agent or the Registrar shall be affected by notice to the contrary.




     (iv) All Notes issued upon any transfer or exchange pursuant to the terms of
this Indenture shall evidence the same debt and shall be entitled to the same benefits
under this Indenture as the Notes surrendered upon such transfer or exchange.



     (c) Every Note that bears or is required under this Section 2.06(c) to bear the
legend set forth in this Section 2.06(c) (together with any Common Stock issued upon conversion of
the Notes and required to bear the legend set forth in Section 2.06(d), collectively, as used in
this Section 2.06(c), the “Restricted Securities”) shall be subject to the restrictions on transfer
set forth in this Section 2.06(c) (including those set forth in the legend set forth below) unless
such restrictions on transfer shall be waived by written consent of the Company, and the Holder of
each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound by all such
restrictions on transfer. As used in Section 2.06(c) and Section 2.06(d), the term “transfer”
encompasses any sale, pledge, loan, transfer or other disposition whatsoever of any Restricted
Security.



     Until the 365th day following the original issuance of the Notes, any certificate
evidencing a Note (and all securities issued in exchange therefor or substitution thereof, other
than Common Stock, if any, issued upon conversion thereof, which shall bear the legend set forth in
Section 2.06(d), if applicable) shall bear the legend in substantially the following form as set
out in this Section 2.06(c), unless such Note 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 the exemption from registration provided by Rule
144 or any similar provision then in force under the Securities Act, or unless otherwise agreed by
the Company in writing, with written notice thereof to the Trustee.




THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE



19









 







UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT
THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION
5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.




THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY
MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II)
PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) SUBJECT TO THE ISSUER’S AND THE
TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO THIS CLAUSE (II) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I)
THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN
(A) ABOVE.



     Any Note (or security issued in exchange or substitution therefor) 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 Registrar in accordance with the provisions of this Section 2.06, 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 2.06(c).



     (d) Until the 365th day following the original issuance of the Notes, any
stock certificate representing Common Stock issued upon conversion of any Note shall bear a legend
in substantially the following form, unless such Common Stock has been sold pursuant to a
registration statement that has been declared effective under the Securities Act (and which
continues to be effective at the time of such transfer) or such Common



20









 




Stock has been issued upon conversion of Notes that are not required to bear the legend set
forth in 2.06(c) above, or such Common Stock has been sold pursuant to the exemption from
registration provided by Rule 144 or any similar provision then in force under the Securities Act,
or unless otherwise agreed by the Company in writing with written notice thereof to the transfer
agent:





THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY
IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.




THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY
MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II)
PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) SUBJECT TO THE ISSUER’S AND THE
TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO THIS CLAUSE (II) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I)
THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A)
ABOVE.



     Any such Common Stock as to which such restrictions on transfer shall have expired in
accordance with their terms or as to which the conditions for removal of the foregoing legend set
forth therein have been satisfied may, upon surrender of the certificates representing such shares
of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new



21









 




certificate or certificates for a like number of shares of Common Stock, which shall not bear
the restrictive legend required by this Section 2.06(d).




     (e) Any Note, or Common Stock issued upon the conversion of a Note, that is
repurchased 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 that results in such Notes or
Common Stock, as the case may be, not constituting “restricted securities” within the meaning of
Rule 144 under the Securities Act.



     Section 2.07 . Mutilated, Destroyed, Lost or Stolen Notes.



     If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the
Note has been lost, destroyed or wrongfully taken, subject to compliance with the provisions of the
next sentence of this Section 2.07, the Company shall issue and the Trustee, upon Company Order,
shall authenticate a replacement Note if the requirements of Section 8-405 of the Uniform
Commercial Code are met such that the Holder (a) notifies the Company and the Trustee within a
reasonable time after such Holder has notice of such loss, destruction or wrongful taking and the
Registrar has not registered a transfer prior to receiving such notification, (b) makes such
request to the Company prior to the Company having notice that the Note has been acquired by a
protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a “protected
purchaser”) and (c) satisfies any other reasonable requirements of the Company and the Trustee.
Such Holder shall furnish an indemnity bond sufficient in the judgment of the Company and the
Trustee to protect the Company, the Trustee, the Paying Agent, the Conversion Agent and the
Registrar from any loss which any of them may suffer if a Note is replaced. In the absence of
notice to the Company, the Trustee, Paying Agent, Conversion Agent or Registrar that such Note has
been acquired by a protected purchaser, the Company shall execute and upon Company Order the
Trustee shall authenticate and deliver, in exchange for any such mutilated Note or in lieu of any
such destroyed, lost or stolen Note, a new Note of like tenor and principal amount, bearing a
number not contemporaneously outstanding.



     In case any such mutilated, destroyed, lost or stolen Note has become due and payable at the
Stated Maturity or on a Fundamental Change Repurchase Date with respect to a repurchase upon a
Fundamental Change, the Company in its discretion, may instead of issuing a new Note, pay the
amount due and payable with respect to such Note.



     Upon the issuance of any new Note under this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including attorneys’ fees and expenses and the fees and expenses of
the Trustee) in connection therewith.



     Every new Note issued pursuant to this Section in lieu of any mutilated, destroyed, lost or
stolen Note shall constitute an original additional contractual obligation of the



22









 




Company and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of
this Indenture equally and proportionately with any and all other Notes duly issued hereunder.




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



     Section 2.08 . Cancellation.



     The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar, the
Paying Agent and the Conversion Agent shall forward to the Trustee any Notes surrendered to them
for registration of transfer, exchange, payment or conversion. The Trustee and no one else shall
cancel and dispose of them in accordance with its customary procedures and upon written request of
the Company shall return to the Company all Notes surrendered for registration of transfer,
exchange, payment, purchase, conversion or cancellation. All Notes so delivered to the Trustee
shall be cancelled promptly by the Trustee. The Company may not issue new Notes to replace Notes it
has paid or delivered to the Trustee for cancellation.



     At such time as all beneficial interests in a Global Note have either been exchanged for
Definitive Notes, transferred, paid, repurchased, converted or canceled, such Global Note shall be
returned by the Depositary or the Notes Custodian to the Trustee for cancellation or retained and
canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another
Global Note, paid, repurchased, converted or canceled, the principal amount of Notes represented by
such Global Note shall be reduced and an adjustment shall be made on the Global Note and on the
books and records of the Trustee (if it is then the Notes Custodian for such Global Note) with
respect to such Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.



     Section 2.09 . Payment of Interest; Defaulted Interest.



     Interest on any Note that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Note (or one or more
predecessor Notes) is registered at the close of business on the Regular Record Date for such
interest at the office or agency of the Company maintained for such purpose pursuant to Section
2.03.



     Any interest on any Note that is payable, but is not paid when the same becomes due and
payable and such nonpayment continues for a period of 30 days shall forthwith cease to be payable
to the Holder on the Regular Record Date, and such defaulted interest and (to the extent lawful)
interest on such defaulted interest at the rate borne by the Notes



23









 




(such defaulted interest and interest thereon herein collectively called “Defaulted Interest”)
shall be paid by the Company, at its election, as provided in clause (a) or (b) below:




     (a) 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 the close of
business on a Special Record Date (as defined below) 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 (not less than 30
days after such notice) of the proposed payment (the “Special Interest Payment Date”), and the
Company shall make arrangements reasonably satisfactory to the Trustee to deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest 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 record date (the “Special Record Date”) for the payment
of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to
the Special Interest Payment Date and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. 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 and Special Interest Payment Date
therefor, which notice shall be prepared by the Company and shall be in a form reasonably
acceptable to the Trustee, to be given in the manner provided for in Section 12.02, not less than
10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date and Special Interest Payment Date therefor having been so
given, such Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in
whose names the Notes are registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following clause (b).



     (b) The Company may make payment of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, 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.



     Subject to the foregoing provisions of this Section, each Note delivered under this Indenture
upon registration of transfer of, or in exchange for, or in lieu of any other Note shall carry the
rights to interest accrued and unpaid which were carried by such other Note.



     Section 2.10 . Additional Interest.



24









 





     (a) If (i) at any time during the six months to one year period following the last
original issuance date of the Notes, the Company fails to timely file any document or report that
it is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
(other than on Form 8-K), as applicable (giving effect to any grace period provided by Rule 12b-25
under the Exchange Act), or (ii) at any time after the 365th day following the last
original issuance date of the Notes, the Company fails to remove the restrictive legend from a Note
upon a transfer or sale of such Note or from any shares of Common Stock issued on conversion of
such Note that is otherwise freely tradable pursuant to Rule 144 under the Securities Act without
restrictions by Holders other than the Company’s Affiliates, the Company will pay additional
interest (“Additional Interest”) on all Outstanding Notes, which shall accrue at the rate of 0.50%
per annum of the principal amount of Notes Outstanding for each day during such period for which
the Company’s failure has occurred and is continuing.



     (b) Additional Interest will be payable in arrears on each Interest Payment Date
following accrual in the same manner as regular interest on the Notes.



     (c) The Additional Interest that is payable in accordance with Section 2.10 shall be
in addition to, and not in lieu of, any Additional Interest that may be payable as a result of the
Company’s election pursuant to Section 7.01.



     (d) If Additional Interest is payable by the Company pursuant to Section 2.10, the
Company shall deliver to the Trustee an Officers’ Certificate to that effect stating (i) the amount
of such Additional Interest that is payable and (ii) the date on which such Additional Interest is
payable. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust
Office such a certificate, the Trustee may assume without inquiry that no such Additional Interest
is payable.



     Section 2.11 . Computation of Interest.



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



     Section 2.12 . CUSIP Numbers.



     The Company in issuing the Notes and Common Stock upon conversion of the Notes may use CUSIP
numbers (if then generally in use). The Trustee shall not be responsible for the use of CUSIP
numbers, and the Trustee makes no representation as to their correctness as printed on any Note,
certificate of Common Stock or notice to Holders and that reliance may be placed only on the other
identification numbers printed on the Notes. The Company shall promptly notify the Trustee in
writing of any change in the CUSIP numbers.



25









 





     Section 2.13 . Calculations in Respect of the Notes.



     The Company shall be responsible for making all calculations called for under the Notes. These
calculations include, but are not limited to, determinations of the Closing Sale Price of the
Common Stock, any accrued interest payable on the Notes and the Conversion Rate of the Notes. The
Company shall make these calculations in good faith and, absent manifest error, such calculations
will be final and binding on Holders of the Notes. The Company shall provide to the Trustee a
schedule of its calculations, and the Trustee, subject to Sections 8.01 and 8.02, shall be entitled
to rely upon the accuracy of such calculations without independent verification. The Trustee shall
forward the Company’s calculations to any Holder of the Notes upon the request of such Holder.



ARTICLE 3

Covenants




     Section 3.01 . Payment of Notes.



     The Company will pay or cause to be paid the principal of and interest, if any, on the Notes
on the dates and in the manner provided in the Notes. Principal and interest, if any, will be
considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary
thereof, holds as of 10:00 a.m. (New York City time) on the due date money deposited by the Company
in immediately available funds and designated for and sufficient to pay all principal and interest
then due.



     The Company will pay interest on overdue principal at the then applicable interest rate on the
Notes to the extent lawful; it will pay interest on overdue installments of interest (without
regard to any applicable grace period) at the same rate to the extent lawful.



     Section 3.02 . Maintenance of Office or Agency.



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



     The Company may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes



26









 




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




     The Company hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company.



     Section 3.03 . Compliance Certificate.



     The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of
the Company an Officers’ Certificate, one of the signatories of which shall be the chief executive
officer, chief financial officer or chief accounting officer of the Company, stating that in the
course of the performance by the signer of his or her duties as an Officer of the Company, he or
she would normally have knowledge of any Default and whether or not such signer knows of any
Default that occurred during such period. If such signer does have knowledge of a Default, the
certificate shall describe the Default, its status and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with Section 314(a)(4) of the
TIA.



     The Company shall deliver to the Trustee, as soon as possible and in any event within five
days after the Company becomes aware of the occurrence of any Default or Event of Default, an
Officers’ Certificate setting forth the details of such Default or Event of Default and the action
that the Company is taking or proposes to take with respect thereto.



     Section 3.04 . Reservation of Common Stock.



     The Company shall at all times reserve and keep available, free from preemptive rights, out of
its authorized but unissued Common Stock or shares held in treasury by the Company, for the purpose
of effecting the conversion of Notes, the full number of shares of Common Stock then issuable upon
the conversion of all Outstanding Notes.



     Section 3.05 . Issuance of Shares.



     All shares of Common Stock delivered upon conversion of the Notes shall be newly issued shares
or shares held in treasury by the Company, shall have been duly authorized and validly issued and
shall be fully paid and nonassessable, and shall be free from preemptive rights and free of any
Lien or adverse claim.



     Section 3.06 . Transfer Taxes.



     If a Holder converts Notes for shares of Common Stock, the Company will pay any and all
documentary, stamp or similar issue or transfer tax due on the issue of shares



27









 




of Common Stock upon the conversion. The Company shall not, however, be required to pay any
tax or duty that may be payable in respect of any transfer involved in the issue and delivery of
shares of Common Stock in a name other than that of the Holder of the Note or Notes to be
converted, and no such issue or delivery shall be made unless and until the Person requesting such
issue has paid to the Company the amount of any such tax or duty, or has established to the
satisfaction of the Company that such tax or duty has been paid.




     Section 3.07 . Reports.



     (a) So long as any Notes are Outstanding, the Company shall (i) file with the
Commission within the time periods prescribed by its rules and regulations and (ii) furnish to the
Trustee and the Holders of the Notes within 15 days after the date on which the Company would be
required to file the same with the Commission pursuant to its rules and regulations (giving effect
to any grace period provided by Rule 12b-25 under the Exchange Act), all quarterly and annual
financial information required to be contained in Forms 10-Q and 10-K and, with respect to the
annual consolidated financial statements only, a report thereon by the Company’s independent
auditors. The Company shall not be required to file any report or other information with the
Commission if the Commission does not permit such filing, although such reports shall be required
to be furnished to the Trustee. Documents filed by the Company with the Commission via the EDGAR
system shall be deemed furnished to the Trustee and the Holders of the Notes as of the time such
documents are filed via EDGAR.



     (b) In addition, if at any time the Company is not subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company will furnish to Holders,
Beneficial Owners and prospective purchasers of the Notes or shares issuable upon conversion of the
Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.



ARTICLE 4

Successors




     Section 4.01 . Merger, Consolidation, or Sale of Assets.



     The Company shall not, directly or indirectly, consolidate with or merge into any other Person
in a transaction in which the Company is not the surviving corporation or convey, transfer or lease
the properties and assets of the Company substantially as an entirety to any successor Person,
unless:



     (a) the successor Person, if any, is:




     (i) a corporation organized and existing under the laws of the United
States, any state of the United States, or the District of Columbia, and




28











 






     (ii) such Person assumes the Company’s obligations on the Notes and under
this Indenture pursuant to agreements reasonably satisfactory in form and substance to the
Trustee;



     (b) immediately after giving effect to the transaction, no Default or Event of
Default will have occurred and be continuing; and



     (c) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such transaction, such supplemental
indenture, comply with this Article 4 and that all conditions precedent herein provided for
relating to such transaction have been satisfied.



     Section 4.02. Successor Corporation Substituted.



     Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the properties or assets of the Company in a
transaction that is subject to, and that complies with the provisions of, Section 4.01 hereof, the
successor Person formed by such consolidation with or into which the Company is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to,
and be substituted for (so that from and after the date of such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture
referring to the “Company” shall refer instead to the successor Person and not to the Company), and
may exercise every right and power of the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein; and thereafter, except in the case of a
lease, the Company shall be discharged from all obligations and covenants under this Indenture and
the Notes.



ARTICLE 5

[Reserved]




ARTICLE 6

Conversion of Notes



     Section 6.01. Conversion Right and Conversion Rate.



     (a) Subject to and upon compliance with the provisions of this Article VI, at the
option of the Holder thereof, at any time prior to the close of business on the date of Stated
Maturity, unless earlier repurchased, any portion of the principal amount of any Note that is an
integral multiple of $1,000 (provided that the principal amount of such Note to remain Outstanding
after such conversion is equal to $2,000 or any integral multiple of $1,000 in excess thereof) may
be converted into fully paid and non-assessable



29









 




shares of Common Stock at the Conversion Rate,
determined as hereinafter provided, in effect at the time of conversion.




     (b) If any Holder has submitted Notes for repurchase upon a Fundamental Change in
accordance with Article 11 hereof, such Notes submitted for repurchase may be converted only if
such Holder withdraws the election for repurchase in accordance with Section 11.07 hereof.



     (c) The rate at which shares of Common Stock shall be delivered upon conversion
(herein called the “Conversion Rate”) shall be initially 49.5872 shares of Common Stock for each
$1,000 principal amount of Notes. The Conversion Rate will be adjusted under the circumstances
provided in Section 6.05. All calculations under this Article shall be made to the nearest cent or
to the nearest 1/10,000th of a share, as the case may be.



     Section 6.02. Conversion Consideration.



     (a) Upon surrendering any Notes for conversion, the Holder of such Notes shall
receive, in respect of each $1,000 principal amount of Notes, a number of shares of Common Stock
equal to the Conversion Rate in effect on the Conversion Date plus cash, if any, in payment of
fractional shares.



     (b) When a Holder receives Common Stock upon conversion of Notes, such Holder will
also receive any rights under any stockholder rights plan that the Company may adopt, whether or
not the rights have separated from the Common Stock at the time of conversion unless, prior to
conversion, the rights have expired, terminated or been exchanged.



     Section 6.03. Exercise of Conversion Right.



     (a) In order to exercise the conversion right:




     (i) the Holder of any Definitive Note to be converted must: (i) complete and
manually sign a notice of conversion substantially in the form of Exhibit B hereto (the
“Conversion Notice”); (ii) deliver the Conversion Notice and the Definitive Note to the
Conversion Agent; and (iii) if required by the Company, the Trustee or the Conversion
Agent, furnish appropriate endorsements and transfer documents; or




     (ii) the holder of beneficial interests in any Global Note to be converted
must comply with the Applicable Procedures to cause the beneficial interests in such Global
Note to be delivered to the Conversion Agent,


and in either case, the Holder of a Definitive Note or holder of beneficial interests in a Global
Note will, if required, pay all transfer or similar taxes that the Company is not otherwise
required to pay pursuant to Section 3.06 hereof and, if required pursuant to




30









 







Section 6.03(b)
hereof, pay funds equal to the interest payable on the next Interest Payment Date.




     The date on which a Holder of a Definitive Note or holder of a beneficial interest in a Global
Note completes the requirements of this Section 6.03(a) shall be deemed to be
the date of conversion (the “Conversion Date”) for purposes of this Article VI. On and after
the Conversion Date, the conversion by such Holder or holder, as set forth in the Conversion
Notice, shall become irrevocable.



     The Company shall deliver shares of Common Stock (and any cash in payment of fractional
shares) deliverable upon conversion to the Conversion Agent no later than the third Business Day
following the Conversion Date.



     (b) Each Definitive Note surrendered (in whole or in part), or beneficial interest
in any Global Note surrendered to the Conversion Agent, for conversion during a Record Date Period
shall be accompanied by payment by the Holder in same-day funds or other funds acceptable to the
Company of an amount equal to the interest payable on the applicable Interest Payment Date on the
principal amount of such Note (or part thereof, as the case may be) being surrendered for
conversion; provided, however, that no such payment by the Holder need be made (i) if the Company
has specified a Make-whole Fundamental Change Repurchase Date during such Record Date Period or on
the corresponding Interest Payment Date; (ii) with respect to any Notes surrendered for conversion
following the Regular Record Date for the payment of interest immediately preceding the Stated
Maturity; or (iii) only to the extent of overdue interest, if any overdue interest exists at the
time of conversion with respect to such Note.



     The interest payable by the Company on such Interest Payment Date with respect to any Note (or
portion thereof, if applicable) that is surrendered for conversion during a Record Date Period
shall be paid to the Holder of such Note as of such Regular Record Date in an amount equal to the
interest that would have been payable on such Note if such Note had been converted as of the close
of business on the applicable Interest Payment Date.



     Except as provided in this Section 6.03(b), no cash payment or adjustment to the Conversion
Rate shall be made upon any conversion on account of any interest accrued from the Interest Payment
Date immediately prior to the Conversion Date, in respect of any Note (or part thereof, as the case
may be) surrendered for conversion, or on account of any dividends on the Common Stock issued upon
conversion. The Company’s delivery to the Holder of the number of shares of Common Stock (and cash
in accordance with Section 6.04 and Section 6.05(f)) into which a Note is convertible will be
deemed to satisfy all of the Company’s obligations with respect to such Note through the
Conversion Date. Accordingly, accrued but unpaid interest, if any, will be deemed to be paid in
full rather than canceled, extinguished or forfeited.



31









 





     (c) Notes shall be deemed to have been converted immediately prior to the close of
business on the relevant Conversion Date, and at such time the rights of the Holders of such Notes
as Holders shall cease, and the Person or Persons entitled to receive the shares of Common Stock
issuable upon conversion shall be treated for all purposes as the record holder or holders of such
Common Stock at such time. Following any Conversion Date, the Company shall satisfy its obligations
with respect to such conversion by either:




     (i) delivering to the Trustee, for delivery to the Holder (or such other
Person as may be named in the relevant Conversion Notice), certificates representing the
number of shares of Common Stock issuable upon such conversion; or




     (ii) delivering to such Holder (or such other Person as may be named in the
relevant Conversion Notice) such number of shares of Common Stock issuable upon such
conversion in accordance with the Applicable Procedures,


in each case, together with payment in cash, if any, as provided in Section 6.04 and Section
6.05(f) (such delivery of shares and cash payment, if any, the “Settlement”); provided that shares
of Common Stock only will be deliverable in certificated form if the Holder exercising such
conversion has specifically requested in writing that delivery be in certificates.




     (d) In the case of any Note that is converted in part only, upon such conversion the
Company shall execute and, upon Company Order, the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Note or Notes of authorized denominations in
an aggregate principal amount equal to the unconverted portion of the principal amount of such
Note.



     Section 6.04. Fractions of Shares.



     No fractional shares of Common Stock shall be issued upon conversion of any Note or 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 thereof shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof) so surrendered. Instead of
any fractional share of Common Stock (calculated to the nearest 1/10,000th of a share) that would
otherwise be issuable upon conversion of any Note or Notes (or specified portions thereof), the
Company shall calculate and pay a cash amount equal to the product of such fraction of a share and
the Closing Sale Price on the Trading Day immediately preceding the Conversion Date.



     Section 6.05. Adjustment of Conversion Rate.



     (a) The Conversion Rate shall be subject to adjustment, without duplication, from
time to time upon the occurrence of any of the following:



32









 






     (i) Stock Dividends in Common Stock.



     In case the Company shall pay or make a dividend or other distribution on shares of Common
Stock, payable exclusively in shares of Common Stock, the Conversion Rate shall be increased by
dividing the Conversion Rate in effect immediately prior to the opening of business on the day
following the record date fixed for the determination of stockholders entitled to receive such
dividend or other distribution by an adjustment factor equal to a fraction:




     (A) the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to the opening of business on the day following the record
date fixed for such determination; and




     (B) the denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution,


such increase to become effective immediately after the opening of business on the day following
the record date fixed for such determination. If, after any such record date fixed for
determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be
immediately readjusted, effective as of the date the Company’s Board of Directors determines not to
pay such dividend or distribution, to the Conversion Rate that would have been in effect if such
determination date had not been fixed. For the purposes of this clause (i), 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.





     (ii) Issuance of Rights or Warrants.



     In case the Company shall issue to all or substantially all holders of its Common Stock rights
or warrants that allow the holders to purchase or subscribe for shares of Common Stock for a period
expiring within 60 days from the date of issuance of the rights or warrants at a price per share
less than the Current Market Price on the record date fixed for the determination of stockholders
entitled to receive such rights or warrants (other than (x) any rights or warrants that by their
terms will also be issued to any Holder upon conversion of a Note into shares of Common Stock
without any action required by the Company or any other Person or (y) any rights or warrants are
distributed to shareholders of the Company upon a merger or consolidation as set forth in Section
6.08 hereof, and taking into consideration in determining the price per share any consideration
received by the Company for such rights or warrants and any amount payable on exercise or
conversion thereof, with the value of such consideration, if other than cash, to be determined by
the Company), then the Conversion Rate shall be increased by dividing the Conversion Rate in effect
immediately prior to the opening of business on the day following the record date fixed for such
determination by an adjustment factor equal to a fraction:



33









 






     (A) the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to the opening of business on the day following the record
date fixed for such determination plus the number of shares of Common Stock that the
aggregate of the offering price of the total number of shares of Common Stock so offered
for subscription or purchase would purchase at such Current Market Price; and




     (B) the denominator of which shall be the number of shares of Common Stock
outstanding immediately prior to the opening of business on the
day following the record date fixed for such determination plus the number of shares
of Common Stock so offered for subscription or purchase,


such increase to become effective immediately after the opening of business on the day following
the record date fixed for such determination. If, after any such record date fixed for
determination, any such rights or warrants are not in fact issued, or are not exercised prior to
the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the
date such rights or warrants expire, or the date the Company’s Board of Directors determines not to
issue such rights or warrants, to the Conversion Rate that would have been in effect if the
unexercised rights or warrants had never been granted or such determination date had not been
fixed, as the case may be, and as a result no additional shares are delivered or issued pursuant to
such rights or warrants. For the purposes of this clause (ii), 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 issue any rights or warrants in respect of shares of Common Stock held in the treasury of
the Company.





     (iii) Stock Splits and Combinations.



     (A) In case outstanding shares of Common Stock shall be subdivided or split into a greater
number of shares of Common Stock, then the Conversion Rate in effect immediately prior to the
opening of business on the day following the day upon which such subdivision or split becomes
effective shall be proportionately increased; and (B) in case outstanding shares of Common Stock
shall be combined or reclassified into a smaller number of shares of Common Stock, then the
Conversion Rate in effect immediately prior to the opening of business on the day following the day
upon which such combination or reclassification becomes effective shall be proportionately reduced;
in each case, such increase or reduction, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such subdivision, combination or
reclassification becomes effective.




     (iv) Distribution of Indebtedness, Securities or Assets.



     In case the Company shall distribute by dividend or otherwise to all or substantially all
holders of its Common Stock evidences of its indebtedness, securities, assets or rights, options or
warrants to purchase the Company’s securities (provided that



34









 




if these rights are only exercisable upon the occurrence of a specified triggering event or events (“Trigger Event”), then the
Conversion Rate will not be adjusted until the Trigger Events occur, and any shares of Common Stock
delivered upon conversion of the Notes at any time following distribution of such rights but prior
to the expiration thereof or the occurrence of a Trigger Event shall be accompanied by a
corresponding amount of such rights or warrants), but excluding:





     (A) any dividends or distributions as to which an adjustment was effected pursuant to
clause (i) of this Section 6.05(a);




     (B) any rights or warrants as to which an adjustment was effected pursuant to clause
(ii) of this Section 6.05(a); and




     (C) any dividends or distributions paid exclusively in cash described in clause (vi)
of this Section 6.05(a)


(the “Distributed Assets”), then (other than in the case as described in clause (v) of this Section
6.05(a)) 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 opening of business on the day
following the record date fixed for the determination of stockholders entitled to receive such
distribution by an adjustment factor equal to a fraction:





     (A) the numerator of which shall be the Current Market Price per share of
Common Stock; and




     (B) the denominator of which shall be the Current Market Price per share of
Common Stock on the record date fixed for such determination minus the Fair Market Value,
as determined by the Company’s Board of Directors, whose determination in good faith shall
be conclusive and described in a Board Resolution delivered to the Trustee and certified by
the Secretary or an Assistant Secretary of the Company, of the portion of those Distributed
Assets applicable to one share of Common Stock,


such adjustment to become effective immediately after the opening of business on the day following
the record date fixed for the determination of stockholders entitled to receive such distribution.
If after any such record date fixed for determination, any such distribution is not in fact made,
the Conversion Rate shall be immediately readjusted, effective as of the date the Company’s Board
of Directors determines not to make such distribution, to the Conversion Rate that would have been
in effect if such determination date had not been fixed.




     Notwithstanding the foregoing, in cases where (A) the Fair Market Value per share of the
Distributed Assets equals or exceeds the Current Market Price of the Common Stock, or (B) the
Current Market Price of the Common Stock exceeds the Fair



35









 




Market Value per share of the Distributed
Assets by less than $1.00, in lieu of the adjustment set forth in this Section 6.05(a)(iv), Holders
will receive upon conversion, in addition to shares of Common Stock, if any, the amount and kind of
Distributed Assets such Holders would have received upon conversion of such Holders’ Notes if they
had been converted immediately prior to the record date for such distribution.





     (v) Spin-Offs.



     In case the Company shall distribute to all or substantially all holders of its Common Stock
shares of Capital Stock of any class or series, or similar Equity Interests, of or relating to a
Subsidiary or other business unit, which Capital Stock is or Equity Interests are traded on The
NASDAQ Global Select Market, The NASDAQ Global Market, The New York Stock Exchange or another U.S.
national securities exchange or
quoted on an established automated over-the-counter trading market in the United States (a
“Spin-off”), then 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 opening of
business on the day following the record date fixed for
the Spin-Off by an adjustment factor equal
to a fraction:




     (A) the numerator of which is the Current Market Price of the Common Stock,
plus the average of the Closing Sale Prices of the Capital Stock or similar Equity
Interests distributed to holders of Common Stock applicable to one share of Common Stock
over the ten consecutive Trading Days immediately following, and including, the ex-dividend
date for the Spin-Off; and




     (B) the denominator of which is the Current Market Price of the Common
Stock.



     The adjustment to the Conversion Rate pursuant to this Section 6.05(a)(v) shall be made after
the opening of business on the day after the tenth Trading Day from, and including, the effective
date of the Spin-Off, but shall be given effect as of immediately prior to the opening of business
on the day following the record date fixed for the Spin-Off; provided that the Company may delay
delivery of any incremental shares of its Common Stock until the information required for the
calculation set forth in this Section 6.05(a)(v) becomes available, if it is not available at the
time at which Settlement of a given conversion is to occur.




     (vi) Cash Distributions.



     In case the Company shall pay a dividend or make a distribution consisting exclusively of cash
to all or substantially all holders of outstanding shares of Common Stock, then 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 opening of business on the day immediately following the
record date fixed for



36









 




determination of the stockholders entitled to receive such distribution by an
adjustment factor equal to a fraction:





     (A) the numerator of which shall be equal to the Current Market Price; and




     (B) the denominator of which shall be equal to the Current Market Price
minus the amount per share of such distribution,


such adjustment to become effective immediately after the opening of business on the day
immediately following the record date fixed for the determination of stockholders entitled to
receive such distribution.




     Notwithstanding the foregoing, in cases where (A) the per share amount of such distribution
equals or exceeds the Current Market Price of the Common Stock, or (B) the Current Market Price of
the Common Stock exceeds the per share amount of such distribution by less than $1.00, in lieu of
the adjustment set forth in this Section
6.05(a)(vi), Holders will receive upon conversion, in addition to shares of Common Stock, if
any, such distribution such Holders would have received upon conversion of such Holders’ Notes if
they had been converted immediately prior to the record date for such distribution.




     (vii) Tender or Exchange Offers.



     In case the Company or any Subsidiary shall make a payment in respect of a tender offer or
exchange offer for any portion of the Common Stock, in which event, to the extent the cash and
value of any other consideration included in the payment per share of Common Stock exceeds the
Closing Sale Price of the Common Stock on the Trading Day immediately following the last date on
which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the
“Expiration Date”), as the case may be, then the Conversion Rate shall be adjusted so that the same
shall equal the rate determined by multiplying the Conversion Rate immediately prior to the opening
of business on the Trading Day following the Expiration Date by an adjustment factor equal to a
fraction:




     (A) the numerator of which shall be equal to the sum of (a) the Fair Market
Value, as determined by the Board of Directors of the Company, whose determination in good
faith shall be conclusive and described in a Board Resolution delivered to the Trustee and
certified by the Secretary of the Company, of the aggregate consideration payable for all shares of Common Stock purchased by the Company in the tender or exchange offer and (b) the
product of (i) the number of shares of Common Stock outstanding less any such purchased shares and (ii) the Closing Sale Price of the Common Stock on the Trading Day immediately
following the Expiration Date; and



37









 






     (B) the denominator of which shall be equal to the product of (a) the number
of shares of Common Stock outstanding, including any such purchased shares, and (b) the
Closing Sale Price of the Common Stock on the Trading Day immediately following the
Expiration Date.



     The adjustment pursuant to this clause (vii) will become effective immediately after the
opening of business on the second Trading Day following the Expiration Date.




     (viii) Repurchases.



     In case the Company or any of its Subsidiaries shall make a payment in respect of a repurchase
of Common Stock the consideration for which exceeds the average of the Closing Sale Prices of the
Common Stock for the five consecutive Trading Days ending on the relevant repurchase date (such
amount, the “Repurchase Premium”), and that repurchase, together with any other repurchases of
Common Stock by the Company or any Subsidiary involving a Repurchase Premium concluded within the
preceding twelve months not triggering an adjustment to the Conversion Rate, results in the payment
by the Company of an aggregate consideration exceeding an amount equal to 10% of the Market
Capitalization of the Common Stock, then the Conversion Rate shall be adjusted so that
the same shall equal the rate determined by multiplying the Conversion Rate immediately prior
to the opening of business on the day immediately following the date of the repurchase triggering
the adjustment by an adjustment factor equal to a fraction:




     (A) the numerator of which shall be equal to the Current Market Price of the
Common Stock; and




     (B) the denominator of which shall be equal to (a) the Current Market Price
of the Common Stock minus (b) the quotient of (i) the aggregate amount of all the
Repurchase Premiums paid in connection with such repurchases and (ii) the number of shares
of Common Stock outstanding on the day immediately following the date of the repurchase
triggering the adjustment, as determined by the Board of Directors of the Company, whose
determination in good faith shall be conclusive;


provided that no adjustment to the Conversion Rate shall be made to the extent the Conversion Rate
is not increased as a result of the above calculation; and provided, further, that the repurchases
of Common Stock effected by the Company or its agent in conformity with Rule 10b-18 under the
Exchange Act will not be included in any adjustment to the Conversion Rate made pursuant to this
Section 6.05(a)(viii).




     If a payment by the Company shall cause an adjustment to the Conversion Rate under both clause
(vii) and clause (viii) of this Section 6.05(a), the provisions of Section 6.05(a)(viii) shall
control.



38









 





     The adjustment to the Conversion Rate pursuant to this Section 6.05(a)(viii) shall be made
after the opening of business on the day after the fifth Trading Day beginning on the Trading Day
following the date of the repurchase triggering the adjustment, but shall be given effect as of the
close of business on the date of the repurchase triggering the adjustment.



     If any distribution or transaction described in clauses (i) through (viii) of this Section
6.05(a) has not resulted in an adjustment to the Conversion Rate applicable to conversion of a
given Note but the shares of the Common Stock deliverable in respect of such conversion are not
entitled to participate in the relevant distribution or transaction (because such shares were not
held on a related record date or otherwise), then the Company shall adjust the number of shares
that it will deliver in respect of such conversion to reflect the relevant distribution or
transaction.



     If any provision of this Indenture requires the averaging or summation of Closing Sale Prices
(including in connection with determining a Current Market Price) or any functions thereof over a
span of multiple days, the Company’s Board of Directors shall make appropriate adjustments to such
Closing Sale Prices or functions thereof or the Conversion Rate to account for any adjustment to
the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion
Rate in which the ex-dividend date of the event occurs, at any time during the period over which
such average or summation is to be calculated.



     (b) Listing Standards Limitation. Notwithstanding the above, certain listing
standards of The NASDAQ Global Select Market may limit the amount by which the Company may increase
the Conversion Rate pursuant to the events described in Section 6.05(a)(ii), Section 6.05(a)(iv),
Section 6.05(a)(v), Section 6.05(a)(vi), Section 6.05(a)(vii) and Section 6.05(f). These standards
generally require the Company to obtain the approval of its stockholders before entering into
certain transactions that potentially result in the issuance of 20% or more of Common Stock
outstanding at an effective price less than the greater of book or market value (determined in
accordance with applicable guidelines of The NASDAQ Global Select Market) unless the Company
obtains stockholder approval of issuances in excess of such limitations. The Company will not
enter into any transaction, or take any other voluntary action, that would require an increase of
the Conversion Rate resulting in the Notes becoming convertible into a number of shares of Common
Stock in excess of any limitations imposed by the continued listing standards of The NASDAQ Global
Select Market, without complying, if applicable, with the stockholder approval rules contained in
such listing standards. In accordance with such listing standards, the provisions of this
paragraph will apply at any time when the Notes are Outstanding, regardless of whether the Company
then has a class of securities listed on The NASDAQ Global Select Market.



     (c) No Adjustment. For the avoidance of doubt, except as provided above no
adjustment in the Conversion Rate shall be required:



39









 






     (i) upon the issuance of (A) any shares of Common Stock or (B) options,
warrants or other rights to acquire Common Stock (including the issuance of Common Stock
pursuant to such options, warrants or other rights), in any transaction resulting in an
exchange for Fair Market Value, including in connection with a reduction of indebtedness or
liabilities of the Company or its Subsidiaries including, without limitation, upon the
conversion of convertible securities of the Company outstanding on the date the Notes were
issued or pursuant to settlements with respect to claims related to any governmental or
private litigation, dispute, investigation, proceeding or other similar action;




     (ii) upon the issuance of any shares of Common Stock pursuant to any present
or future plan or similar arrangement providing for the reinvestment of dividends or
interest payable on the Company’s securities and the investment of additional optional
amounts in shares of Common Stock under any such plan or arrangement;




     (iii) upon the issuance of any shares of Common Stock or options or rights
to purchase such shares pursuant to any present or future employee, director or consultant
benefit plan or program or similar arrangement of, or assumed by, the Company or any of its
Subsidiaries;




     (iv) upon the issuance of any shares of Common Stock pursuant to any option,
warrant, right or exercisable, exchangeable or convertible security not described in clause
(iii) of this Section 6.05(c) and outstanding as of the date the Notes were first issued;




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




     (vi) for accrued and unpaid interest, if any.



     In addition, the Company will not be required to make an adjustment in the Conversion Rate
unless the adjustment would require a change of at least 1% in the Conversion Rate. The Company
shall carry forward any adjustment that is less than 1% of the Conversion Rate, take such
carried-forward adjustments into account in any subsequent adjustments, and make such
carried-forward adjustments, regardless of whether the aggregate adjustment is less than 1%, (a)
annually on the anniversary of the first date of issue of the Notes and (b) otherwise (1) five
Business Days prior to the Stated Maturity of the Notes or (2) prior to any Conversion Date, unless
such adjustment has already been made.



     No adjustment will be made to the Conversion Rate or a Holder’s ability to convert the Notes
if (i) such Holder otherwise participates (as a result of holding Notes) in a transaction that
would otherwise trigger an adjustment pursuant to Section 6.05(a) without converting; or (ii) upon
conversion, such Holder receives shares of Common



40









 




Stock entitled to participate in the transaction
that would otherwise trigger an adjustment as pursuant to Section 6.05(a).




     (d) Increase in Conversion Rate due to Taxes. The Company may make such increases in
the Conversion Rate, for the remaining term of the Notes or any shorter term, in addition to those
required by clause (a) of this Section 6.05, as the Board of Directors of the Company considers to
be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock
or rights to purchase Common Stock resulting from any dividend or distribution of stock or issuance
of rights or warrants to purchase or subscribe for stock or from any event treated as such for
income tax purposes.



     (e) Temporary Increase in Conversion Rate. To the extent permitted by applicable law
and the rules of The NASDAQ Global Select Market and any other securities exchange on which the
Common Stock is then listed, 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 such period, and the Company’s 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 give notice of the increase to the Holders in the manner provided in Section
12.02, with a copy to the Trustee and Conversion Agent, at least fifteen (15) days prior to the
date the increased Conversion Rate takes effect, and such notice shall state the increased
Conversion Rate and the period during which it will be in effect.



     (f) Make-whole Fundamental Change Adjustment. In case of a Make-whole Fundamental
Change, solely upon receipt by the Conversion Agent of any Holder’s Conversion Notice on or after
the Effective Date of the Make-whole Fundamental Change and prior to the 45th day following such
Effective Date (or, if earlier and to the
extent applicable, the close of business on the second Business Day immediately preceding the
Fundamental Change Repurchase Date (as specified in the Fundamental Change Repurchase Right
Notice)), the Company shall increase the Conversion Rate for the Notes surrendered for conversion
by such Holder by the number of Additional Shares determined in accordance with this Section
6.05(f).



     A “Make-whole Fundamental Change” means any transaction or event described in clause (2), (3)
or (4) of the definition of a Fundamental Change (including, for this purpose, any transaction or
event described in clause (3) thereof as if such clause did not include clause (b) thereto), other
than any such transaction or event pursuant to which at least 90% of the consideration paid for the
Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to
dissenters’ appraisal rights) consists of shares of Capital Stock traded on The NASDAQ Global
Select Market, The NASDAQ Global Market, The New York Stock Exchange or another U.S. national
securities exchange or quoted on an established automated over-the-counter trading market in the
United States (or that will be so traded or quoted immediately following the



41









 




transaction) and as a
result of such transaction or transactions the Notes become convertible solely into such Capital
Stock and such other consideration received in connection with such transaction or transactions.
The number of Additional Shares will be determined by reference to the table below.




     The following table sets forth the number of Additional Shares issuable per $1,000 initial
principal amount of Notes as a result of a Make-whole Fundamental Change that occurs in the
corresponding period:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price ($)
	Effective Date	 	$15.22	 	$20.00	 	$25.00	 	$30.00	 	$35.00	 	$40.00	 	$45.00	 	$50.00	 	$55.00	 	$60.00	 	$65.00	 	$75.00	 	$85.00	 	$100.00
	October 18, 2010
	 	 	16.11	 	 	 	10.40	 	 	 	7.35	 	 	 	5.56	 	 	 	4.38	 	 	 	3.54	 	 	 	2.92	 	 	 	2.43	 	 	 	2.05	 	 	 	1.73	 	 	 	1.47	 	 	 	1.07	 	 	 	0.78	 	 	 	0.48	 
	October 15, 2011
	 	 	16.11	 	 	 	10.01	 	 	 	6.95	 	 	 	5.21	 	 	 	4.09	 	 	 	3.31	 	 	 	2.72	 	 	 	2.27	 	 	 	1.92	 	 	 	1.62	 	 	 	1.38	 	 	 	1.01	 	 	 	0.74	 	 	 	0.45	 
	October 15, 2012
	 	 	16.11	 	 	 	9.56	 	 	 	6.47	 	 	 	4.79	 	 	 	3.74	 	 	 	3.02	 	 	 	2.49	 	 	 	2.08	 	 	 	1.76	 	 	 	1.49	 	 	 	1.27	 	 	 	0.93	 	 	 	0.68	 	 	 	0.42	 
	October 15, 2013
	 	 	16.11	 	 	 	9.04	 	 	 	5.90	 	 	 	4.28	 	 	 	3.32	 	 	 	2.67	 	 	 	2.21	 	 	 	1.85	 	 	 	1.56	 	 	 	1.33	 	 	 	1.14	 	 	 	0.84	 	 	 	0.61	 	 	 	0.38	 
	October 15, 2014
	 	 	16.11	 	 	 	8.37	 	 	 	5.19	 	 	 	3.66	 	 	 	2.81	 	 	 	2.26	 	 	 	1.87	 	 	 	1.57	 	 	 	1.33	 	 	 	1.14	 	 	 	0.98	 	 	 	0.72	 	 	 	0.53	 	 	 	0.33	 
	October 15, 2015
	 	 	16.11	 	 	 	7.49	 	 	 	4.28	 	 	 	2.91	 	 	 	2.21	 	 	 	1.78	 	 	 	1.47	 	 	 	1.24	 	 	 	1.06	 	 	 	0.91	 	 	 	0.78	 	 	 	0.58	 	 	 	0.43	 	 	 	0.27	 
	October 15, 2016
	 	 	16.11	 	 	 	6.30	 	 	 	3.14	 	 	 	2.02	 	 	 	1.52	 	 	 	1.23	 	 	 	1.03	 	 	 	0.87	 	 	 	0.75	 	 	 	0.64	 	 	 	0.56	 	 	 	0.42	 	 	 	0.31	 	 	 	0.19	 
	October 15, 2017
	 	 	16.11	 	 	 	4.50	 	 	 	1.64	 	 	 	0.99	 	 	 	0.77	 	 	 	0.63	 	 	 	0.53	 	 	 	0.46	 	 	 	0.39	 	 	 	0.34	 	 	 	0.29	 	 	 	0.22	 	 	 	0.17	 	 	 	0.10	 
	October 15, 2018
	 	 	16.11	 	 	 	0.48	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 





The Stock Prices set forth in the first row of the table above shall be adjusted as of any
date on which the Conversion Rate of the Notes is adjusted in accordance with Section 6.05 hereof.
The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such
adjustment, multiplied by an adjustment factor equal to a fraction, the numerator of which is the
Conversion Rate immediately prior to the adjustment giving rise to the Stock Price adjustment and
the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares
shall be adjusted in the same manner and for the same events as the Conversion Rate as set forth in
Section 6.05 hereof.




     The exact Stock Prices and Effective Dates may not be set forth on the table; in which case,
if:




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




     (B) the Stock Price is more than $100.00 per share (subject to
adjustment), no further adjustment will be made to the Conversion Rate as a result
of the Make-whole Fundamental Change; and




     (C) the Stock Price is less than $15.22 per share (subject to
adjustment), no further adjustment will be made to the Conversion Rate as a result
of the Make-whole Fundamental Change.



42









 





     Notwithstanding the foregoing, in no event shall the total number of shares of Common Stock
issuable upon conversion of a Note exceed 65.6972 per $1,000 principal amount of the Notes, after
giving effect to the increase in the Conversion Rate as set forth in Section 6.05(f) hereof,
subject to the same adjustments as set forth in Section 6.05(a) hereof.



     Section 6.06. Notice of Adjustments of Conversion Rate.



     Whenever the Conversion Rate is adjusted pursuant to Section 6.05 hereof:



     (a) the Company shall compute the adjusted Conversion Rate in accordance with
Section 6.05 hereof and shall prepare an Officer’s Certificate setting forth (1) the adjusted
Conversion Rate, (2) the clause of Section 6.05 pursuant to which such adjustment has been made,
showing in reasonable detail the facts upon which such adjustment is based, (3) the calculation of
such adjustment and (4) the date as of which such adjustment is effective, and such certificate
shall promptly be delivered to the Trustee and each Conversion Agent (which such certificates shall
be conclusive absent manifest error); and



     (b) upon each such adjustment, a notice stating that the Conversion Rate has been
adjusted and setting forth the adjusted Conversion Rate shall be required, and as soon as
practicable after it is required, such notice shall be provided by the Company to all Holders in
accordance with Section 12.02.



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



     Section 6.07. Cancellation of Converted Notes.



     All Definitive Notes delivered for conversion shall be delivered to the Conversion Agent or
its agent to be canceled by or at the direction of the Trustee, which shall dispose
of the same as provided in this Indenture. Upon conversions of beneficial interests in any
Global Note, the Trustee or the Notes Custodian, at the direction of the Trustee, shall reduce the
aggregate principal amount of Outstanding Notes represented by such Global Note to reflect the
conversion pursuant to Section 2.01(b).



     Section 6.08. Provision in Case of Consolidation, Merger or Sale of Assets.



     In the event of (i) any reclassification of the Common Stock (other than changes resulting
from a subdivision or combination); (ii) any consolidation, merger or binding share exchange
involving the Company; or (iii) any sale, assignment, conveyance, transfer, lease or other
disposition to another Person of the Company’s property and assets as an entirety or substantially
as an entirety; provided that in each case, holders of



43









 




the Common Stock are entitled to receive
cash, securities or other property for such holders’ shares of Common Stock (the “Reference
Property”), the Company or the successor or the purchasing Person, as the case may be, shall
execute and deliver to the Trustee a supplemental indenture providing that the Holder of each Note
then Outstanding shall have the right thereafter, during the period such Note shall be convertible
as specified in Section 6.01 to convert such Note only into the kind and amount of Reference
Property that a holder of a number of shares of Common Stock equal to the Conversion Rate
immediately prior to such transaction would have owned or been entitled to receive upon such
transaction. For purposes of this Section 6.08, the kind and amount of consideration that a Holder
would have been entitled to receive as a holder of the Common Stock in the case of
reclassifications, consolidations, mergers, binding share exchanges, sales, assignments,
conveyances, transfers, leases or other dispositions that cause the Common Stock to be converted
into the right to receive more than a single type of consideration (determined based in part upon
any form of stockholder election) will be deemed to be the weighted average of the kind and amount
of consideration received by the holders of the Common Stock that affirmatively make such an
election. The above provisions of this Section 6.08 shall similarly apply to successive
reclassifications, consolidations, mergers, share exchanges, sales, assignments, conveyances,
transfers, leases or other dispositions. Notice of the execution of such a supplemental indenture
shall be given by the Company to the Holder of each Note as provided in Section 12.02 promptly upon
such execution. If the Notes become convertible into Reference Property, the Company shall notify
the Trustee, issue a press release containing the relevant information and make the press release
available on the Company’s website.




     Neither the Trustee nor any Conversion Agent shall be under any responsibility to determine
the correctness of any provisions contained in any such supplemental indenture relating either to
the kind or amount of shares of stock or other securities or property or cash receivable by Holders
of Notes upon the conversion of their Notes after any such consolidation, merger, conveyance,
transfer, sale or lease or to any such adjustment, but may accept as conclusive evidence of the
correctness of any such provisions, and shall be protected in relying upon, an Officers’
Certificate and an Opinion of Counsel with respect thereto, which the Company shall cause to be
furnished to the Trustee.



     Section 6.09. Rights Issued in Respect of Common Stock.



     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
Trigger Event:



     (a) are deemed to be transferred with such shares of Common Stock;



     (b) are not exercisable; and



44









 





     (c) are also issued in respect of future issuances of Common Stock,


shall not be deemed distributed for purposes of Section 6.05(a) until the occurrence of the
earliest Trigger Event. In addition, in the event of any distribution of rights or warrants, or any
Trigger Event with respect thereto, that shall have resulted in an adjustment to the Conversion
Rate under Section 6.05(a), (A) 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 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 (B) in the case of any such rights or warrants
all of which shall have expired without exercise by any holder thereof, the Conversion Rate shall
be readjusted as if such issuance had not occurred.




     Section 6.10. Responsibility of Trustee and Conversion Agent for Conversion Provisions.



     The Trustee and any Conversion Agent shall not at any time be under any duty or responsibility
to any Holder of Notes to determine whether any facts exist which may require any adjustment of the
Conversion Rate, or with respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, herein or in any supplemental indenture provided to be employed, in
making the same, or whether a supplemental indenture need be entered into. Neither the Trustee nor
any Conversion Agent shall be accountable with respect to the validity or value (or the kind or
amount) of any Common Stock, or of any other securities or property or cash, which may at any time
be issued or delivered upon the conversion of any Note; and it or they do not make any
representation with respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to make or calculate any cash payment or to issue,
transfer or deliver any shares of Common Stock or share certificates or other securities or
property or cash upon the surrender of any Note for the purpose of conversion; and the Trustee and
any Conversion Agent shall not be responsible for any failure of the Company to comply with any of
the covenants of the Company contained in this Article 6.



ARTICLE 7

Defaults and Remedies




     Section 7.01. Events of Default.



     Each of the following is an “Event of Default”:



45









 






     (i) a default in the payment of any installment of interest upon any of the
Notes as and when the same shall become due and payable, and continuance of such default
for a period of 30 days;




     (ii) a default in the payment of all or any part of the principal of any of
the Notes as and when the same shall become due and payable at Stated Maturity;




     (iii) a default on the part of the Company in the performance, or breach by
the Company, of any other covenant or agreement on the part of the Company set forth in, or
deemed to be incorporated by reference to the Trust Indenture Act into, the Notes or in
this Indenture (other than a covenant or agreement in respect of which a default or breach
by the Company is specifically dealt with in this Section 7.01), and continuance of such
default or breach without cure or waiver for a period of 90 days after there has been
given, by registered or certified mail, to the Company by the Trustee, or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the Notes at the time
Outstanding, a written notice specifying such failure and requiring the same to be
remedied;




     (iv) the Company fails to pay the Fundamental Change Repurchase Price of any
Note when due (including, without limitation, on any Fundamental Change Repurchase Date);




     (v) the Company fails to deliver shares of Common Stock and cash, if any, in
payment of fractional shares upon conversion of Notes within the time period required by
this Indenture;




     (vi) the Company fails to timely provide the Fundamental Change Repurchase
Right Notice, if required by this Indenture, if such failure continues for 30 days after
notice to the Company of its failure to do so;




     (vii) any indebtedness for money borrowed by the Company or any of its
Subsidiaries (all or substantially all of the outstanding voting securities of which are
owned, directly, or indirectly, by the Company) in an aggregate outstanding principal
amount in excess of $25.0 million is not paid at final maturity or upon acceleration and
such indebtedness is not discharged, or such acceleration is not cured or rescinded, within
10 days after written notice specifying such failure and requiring the same to be remedied;




     (viii) a failure by the Company or any of its Subsidiaries (all or
substantially all of the outstanding voting securities of which are owned, directly, or
indirectly, by the Company) to pay final and non-appealable judgments entered
by a court or courts of competent jurisdiction, the aggregate uninsured or unbonded
portion of which is at least $25.0 million, if the judgments are not paid, discharged or
stayed within 60 days;



46









 






     (ix) the Company or any of its Subsidiaries pursuant to or within the
meaning of Bankruptcy Law:




     (A) commences a voluntary case,




     (B) consents to the entry of an order for relief against it in an
involuntary case,




     (C) consents to the appointment of a custodian of it or for all or
substantially all of its property, or




     (D) makes a general assignment for the benefit of its creditors;
and




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




     (A) is for relief against the Company or any of its Subsidiaries in
an involuntary case;




     (B) appoints a custodian of the Company or any of its Subsidiaries
or for all or substantially all of the property of the Company or any of its
Subsidiaries; or




     (C) orders the liquidation of the Company or any of its
Subsidiaries



     and the order or decree remains unstayed and in effect for 60 consecutive days.



     Notwithstanding the foregoing, in addition to any Additional Interest as set forth in Section
2.10, at the election of the Company, the sole remedy for an Event of Default specified in Section
7.01(iii) relating to (x) any failure by the Company to comply with its reporting obligations to
the Trustee and the Commission as set forth in Section 3.07 or (y) any failure by the Company to
comply with the requirements of Section 314(a)(1) of the TIA (each, a “Reporting Default”) shall,
for the first 90 days after the occurrence of such Reporting Default, consist exclusively of the
right to receive Additional Interest on the Notes at an annual rate equal to 0.25% of the principal
amount of the Notes. In the event that the Company does not elect to pay the Additional Interest
upon a Reporting Default in accordance with this paragraph, the Notes will be subject to
acceleration as provided herein.



     The Additional Interest will accrue on all Outstanding Notes from and including the date on
which a Reporting Default first occurs up to but not including the 90th day thereafter (or such
earlier date on which the Reporting Default shall have been cured or
waived pursuant to Section 7.04). On such 90th day (or earlier, if such Reporting Default is
cured or waived pursuant to Section 7.04 prior to such 90th day), such Additional



47









 




Interest will
cease to accrue and shall become due and payable and, if such Reporting Default has not been cured
or waived pursuant to Section 7.04 prior to such 90th day, then the Trustee or the Holders of not
less than 25% in principal amount of the Notes may declare the principal of and accrued and unpaid
interest on all such Notes to be due and payable immediately. This provision shall not affect the
rights of Holders in the event of the occurrence of any other Event of Default.




     If the Company elects to pay the Additional Interest in accordance with this Section 7.01, the
Company shall notify, in the manner provided for in Section 12.02, the Holders and the Trustee of
such election at any time on or before the close of business on the date on which such Reporting
Default first occurs. If the Additional Interest is payable under this Section 7.01, the Company
shall deliver to the Trustee an Officers’ Certificate to that effect stating the date on which the
Additional Interest is payable. Unless and until a Responsible Officer receives at the Corporate
Trust Office such a certificate, the Trustee may assume without inquiry that no Additional Interest
is payable. If the Additional Interest has been paid by the Company directly to the Persons
entitled to such fee, the Company shall deliver to the Trustee an Officer’s Certificate setting
forth the particulars of such payment.



     Section 7.02. Acceleration.



     (a) In the case of an Event of Default specified in clause (ix) or (x) of Section
7.01 hereof with respect to the Company, all Outstanding Notes will become due and payable
immediately without further action or notice by the Trustee or any Holder. Subject to Section 7.01,
if any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 25%
in aggregate principal amount of the then Outstanding Notes may declare all the Notes to be due and
payable immediately. Upon any such declaration, the Notes shall become due and payable immediately.



     (b) Notwithstanding the foregoing, if an Event of Default specified in clause (vii)
of Section 7.01 occurs resulting in a declaration of acceleration of the Notes, such declaration of
acceleration shall be automatically annulled if such Event of Default triggering such declaration
of acceleration pursuant to clause (vii) of Section 7.01 shall have been remedied or cured by the
Company or any of its Subsidiaries or waived by the holders of the relevant indebtedness within 60
days of the declaration of acceleration with respect thereto and if (i) the annulment of the
acceleration of the Notes would not conflict with any judgment or decree of a court of competent
jurisdiction and (ii) all existing Events of Default, except nonpayment of principal or interest on
the Notes or nonpayment of the conversion obligation set forth in Section 6.02, in either case that
became due and payable solely because of the acceleration of the Notes, have been cured or waived.



     (c) At any time after a declaration of acceleration with respect to the Notes as
described in this Section 7.02, the Holders of a majority in aggregate principal amount of the
Outstanding Notes may rescind and cancel such declaration and its consequences: (i)



48









 




if the rescission would not conflict with any judgment or decree of a court of competent
jurisdiction; (ii) if all existing Events of Default have been cured or waived except nonpayment of
principal or interest and nonpayment of the conversion obligation set forth in Section 6.02 that
has become due solely because of the acceleration; (iii) to the extent the payment of such interest
is lawful, interest on overdue installments of interest and overdue principal, which has become due
otherwise than by such declaration of acceleration, has been paid; and (iv) if the Company has paid
the Trustee its reasonable compensation and reimbursed the Trustee for its expenses, disbursements
and advances (including, but not limited to, reasonable attorneys’ fees and expenses). No such
rescission shall affect any subsequent Default or impair any right consequent thereto.




     Section 7.03. Other Remedies.



     If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal and interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.



     The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.



     Section 7.04. Waiver of Past Defaults.



     Holders of not less than a majority in aggregate principal amount of the then Outstanding
Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive an existing
Default and its consequences hereunder, except a continuing Default in:



     (a) the payment of the principal of, or interest on, the Notes (including in
connection with an offer to purchase); provided, however, that the Holders of a majority in
aggregate principal amount of the then Outstanding Notes may rescind an acceleration and its
consequences, including any related payment default that resulted from such acceleration, in
accordance with Section 7.02;



     (b) the conversion of any Note into shares of Common Stock or cash, if any, in
payment of fractional shares in accordance with the provisions of such Note and this Indenture; or



     (c) compliance with any of the provisions of this Indenture that would require the
consent of the Holder of each Outstanding Note affected thereby.



49









 





     Upon any such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right consequent thereon.



     Section 7.05. Control by Majority.



     Holders of a majority in aggregate principal amount of the then Outstanding Notes may direct
the time, method and place of conducting any proceeding for exercising any remedy available to the
Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the Trustee in personal
liability.



     Section 7.06. Limitation on Suits.



     A Holder may pursue a remedy with respect to this Indenture or the Notes only if:



     (a) such Holder gives to the Trustee written notice that an Event of Default is
continuing;



     (b) Holders of at least 25% in aggregate principal amount of the then Outstanding
Notes make a written request to the Trustee to pursue the remedy as Trustee;



     (c) such Holder or Holders offer and, if requested, provide to the Trustee security
or indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;



     (d) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of security or indemnity; and



     (e) during such 60-day period, Holders of a majority in aggregate principal amount
of the then Outstanding Notes do not give the Trustee a direction inconsistent with such request.



     A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a
Note or to obtain a preference or priority over another Holder of a Note.



     Section 7.07. Rights of Holders of Notes to Receive Payment or Effect Conversion.



     Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal and interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates or



50









 




the right to convert Notes in
accordance with Article VI of this Indenture, shall not be impaired or affected without the consent
of such Holder.




     Section 7.08. Collection Suit by Trustee.



     If an Event of Default specified in Section 7.01(i) or (ii) hereof occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company, and to enforce such judgment and collect the
moneys adjudicated or decreed to be payable, for the whole amount of principal of and interest
remaining unpaid on the Notes, interest on overdue principal and, to the extent lawful, interest
and such further amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.



     Section 7.09. Trustee May File Proofs of Claim.



     The Trustee is authorized 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 Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other property payable or deliverable on
any such claims and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 8.07. To the extent that the payment
of any such compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 8.07 out of the estate in any such
proceeding, 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, money, securities and other properties
that the Holders may be entitled to receive in such proceeding whether in liquidation or under any
plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of
any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.



     Section 7.10. Priorities.



     If the Trustee collects any money pursuant to this Article 7, it shall pay out the money in
the following order:




51











 





     First: to the Trustee (or any predecessor Trustee), its agents and attorneys for amounts
due under Section 8.07, including payment of all compensation, expenses and liabilities incurred,
and all advances made, by the Trustee and the costs and expenses of collection;



     Second: to Holders of Notes for amounts due and unpaid on the Notes for principal and
interest, ratably, without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal and interest, respectively; and



     Third: to the Company or such party as a court of competent jurisdiction shall direct.



     The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 7.10. If a record date is fixed, the Trustee shall send, by first class
mail, electronically or by any other means approved by the Trustee to the Holders of the Notes of
record a notice at least 30 days but not more than 60 days before the payment date. Such notice
shall state: (1) that a payment is being made pursuant to this Section 7.10, (2) the relevant
Default and the circumstances giving rise to the collection of money pursuant to this Section 7.10,
(3) the payment date and (4) the amount of such payment per $1,000 of Notes.



     Section 7.11. Undertaking for Costs.



     All parties to this Indenture agree, and each Holder of any Note by his acceptance thereof
shall be deemed to have agreed, 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 a Trustee, a
court in its discretion may require the filing by any party litigant in the suit of an undertaking
to pay the costs of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the party litigant. This
Section 7.11 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to
Section 7.06 hereof, or a suit by Holders of more than 10% in aggregate principal amount of the
then Outstanding Notes.



ARTICLE 8

Trustee




     Section 8.01. Duties of Trustee.



     (a) If an Event of Default has occurred and is continuing, the Trustee shall
exercise the rights and powers vested in it by this Indenture and use the same degree of care and
skill in its exercise as a prudent Person would exercise or use under the circumstances in the
conduct of such Person’s own affairs; provided, to the extent permitted by the TIA, that if an
Event of Default occurs and is continuing, the Trustee



52









 




will be under no obligation to exercise any
of the rights or powers under this Indenture at the request or direction of any of the Holders
unless such Holders have provided the
Trustee indemnity or security reasonably satisfactory to the Trustee against loss, liability
or expense.




     (b) Except during the continuance of an Event of Default:




     (i) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and




     (ii) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates, directions, notices or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, in the case of any such
certificates, directions, notices or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall examine such
certificates and opinions to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).



     (c) The Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:




     (i) this paragraph does not limit the effect of paragraph (b) of this
Section;




     (ii) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and




     (iii) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant to
Section 7.05.



     (d) The Trustee shall not be liable for interest on any money received by it except
as the Trustee may agree in writing with the Company.



     (e) Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.



     (f) No provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers, if it shall have



53









 




reasonable grounds to
believe that repayment of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.




     (g) 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 8.01 and to the provisions of the TIA.



     (h) The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders unless such
Holders shall have provided to the Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities
that might be incurred by it in compliance with such request or direction.



     Section 8.02. Rights of Trustee.



     (a) The Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any paper or document believed by it to be genuine and to have been
signed or presented by the proper Person or Persons. The Trustee need not investigate any fact or
matter stated in the document.



     (b) Before the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on the Officers’ Certificate or Opinion of Counsel.



     (c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any attorney or agent appointed with due care.



     (d) Subject to Section 8.01(c), the Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or within its rights or
powers.



     (e) The Trustee may consult with counsel of its selection, and the advice or opinion
of such counsel appointed with due care with respect to legal matters relating to this Indenture
and the Notes shall be full and complete authorization and protection from liability in respect to
any action taken, omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.



     (f) The Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, notice, request,
direction, consent, order, bond or other paper or document; but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit and, if the
Trustee shall determine to make such further inquiry or



54









 




investigation, it shall be entitled to
examine the books, records and premises of the Company at reasonable times, in a reasonable manner
and upon reasonable advance notice, personally or by agent or attorney at the sole cost of the
Company and shall incur no liability or additional liability of any kind by reason of such inquiry
or investigation.




     (g) The Trustee shall not be deemed to have knowledge of any Default or Event of
Default except, (i) during any period it is serving as Registrar and Paying Agent for the Notes,
any Event of Default occurring pursuant to Sections 7.01(i), 7.01(ii), 7.01(iv) or 7.01(v) or (ii)
any Default or Event of Default of which a Responsible Officer shall have obtained actual knowledge
or received written notification of such default, which is in fact a Default or Event of Default,
at the Corporate Trust Office of the Trustee and such notice references the Notes and this
Indenture. The term “actual knowledge” shall mean the actual fact or statement of knowing by a
Responsible Officer without independent investigation with respect thereto.



     (h) Delivery of the 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 Officers’ Certificates).



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



     (j) The rights, privileges, protections, immunities and benefits given to the
Trustee, including 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.



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



     Section 8.03. Individual Rights of Trustee. The Trustee in its individual or any other
capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Conversion
Agent, Registrar, co-registrar or co-paying agent may do the same with like rights. However, the
Trustee must comply with Sections 8.10 and 8.11. In addition, the Trustee shall be permitted to
engage in transactions with the Company; provided, however, that if the Trustee acquires any
conflicting interest (as such term is



55









 




defined in Section 310(b) of the TIA) the Trustee must (i)
eliminate such conflict within 90 days of acquiring such conflicting interest, (ii) apply to the
Commission for permission to continue acting as Trustee or (iii) resign as Trustee hereunder.




     Section 8.04. Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company’s use of the Notes or the proceeds from the
Notes, and it shall not be responsible for any statement of the Company in this Indenture or
in any document issued or offering circular (or similar document) used in connection with the sale
of the Notes or in the Notes other than the Trustee’s certificate of authentication or for the use
or application of any funds received by any Paying Agent other than the Trustee.



     Section 8.05. Notice of Defaults. If a Default or Event of Default occurs and is continuing
and if a Responsible Officer has actual knowledge thereof, the Trustee shall mail to each Holder
notice of the Default or Event of Default within 90 days after it occurs unless such Default or
Event of Default has been cured or waived.



     Except in the case of a Default or Event of Default in payment of principal of, or interest on
any Note (including payments pursuant to the required repurchase provisions of such Note, if any),
the Trustee may withhold the notice if and so long as its board of directors, a committee of its
board of directors or a committee of its Responsible Officers and/or a Responsible Officer in good
faith determines that withholding the notice is in the interests of registered Holders.



     Section 8.06. Reports by Trustee to Holders. As promptly as practicable after each April 1
beginning with the April 1 following the date of this Indenture, and in any event prior to October
1 in each year, the Trustee shall mail to each Holder a brief report dated as of such April 1 that
complies with TIA § 313(a), if and to the extent such report may be required by the TIA. The
Trustee also shall comply with TIA § 313(b). The Trustee shall also transmit by mail all reports
required by TIA § 313(c).



     A copy of each report at the time of its mailing to Holders shall be filed with the Commission
and each stock exchange (if any) on which the Notes are listed. The Company agrees to notify
promptly the Trustee in writing whenever the Notes become listed on any stock exchange and of any
delisting thereof



     Section 8.07. Compensation and Indemnity. The Company covenants and agrees: (a) 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 as shall be agreed by the Company and the Trustee in writing
(which shall not be limited by any provision of law in regard to the compensation of a trustee of
an express trust); (b) to reimburse the Trustee and each predecessor Trustee upon its request for
all expenses, fees, disbursements and advances incurred or made by or on behalf of it in accordance
with any of the provisions of this Indenture (including the reasonable compensation, fees, and the
expenses and



56









 




disbursements of its counsel and of all agents and other Persons not regularly in its
employ), except any such expense, disbursement or advance as shall be determined to have been
caused by its own negligence or willful misconduct; and (c) to indemnify the Trustee and each
predecessor Trustee for, and to hold it harmless against, any loss, liability, damage, claim or
expense, including taxes, if any (other than taxes based upon, determined by or measured by the
income of the Trustee), incurred without negligence or willful misconduct on its part, arising out
of or in connection with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including enforcement of this Section 8.07. The obligations of the
Company under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, fees, disbursements and advances shall
constitute an additional obligation hereunder and shall survive the satisfaction and discharge of
this Indenture, the resignation or removal of the Trustee or the termination of this Indenture. To
secure the obligations of the Company to the Trustee under this Section 8.07, the Trustee shall
have a prior Lien upon all property and funds held or collected by the Trustee as such, except
funds and property paid by the Company and held in trust for the benefit of the Holders of
particular Notes. When the Trustee incurs expenses or renders services after an Event of Default
specified in Section 7.01(ix) or (x) occurs, such expenses and compensation for services are
intended to constitute expenses of administration under Bankruptcy Law.




     Section 8.08. Replacement of Trustee. The Trustee may resign at any time by so notifying the
Company. The Holders of a majority in principal amount of the Notes may remove the Trustee by so
notifying the Company and the Trustee in writing and the Company may appoint a successor Trustee.
The Company shall remove the Trustee if:




     (i) the Trustee fails to comply with Section 8.10;




     (ii) the Trustee is adjudged bankrupt or insolvent;




     (iii) a receiver or other public officer takes charge of the Trustee or its
property; or




     (iv) the Trustee otherwise becomes incapable of acting.



     If the Trustee resigns or is removed by the Company or by the Holders of a majority in
principal amount of the Notes and the Company does not reasonably promptly appoint a successor
Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event
being referred to herein as the retiring Trustee), the Holders of a majority in aggregate principal
amount of the Notes may appoint a successor Trustee.



     A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers



57









 




and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall upon payment of its charges hereunder promptly transfer all
property held by it as Trustee to the successor Trustee, upon payment of any fees and expenses due
and owing to it hereunder.




     If the Company has not appointed a successor Trustee within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee or the Holders of 10% in principal amount of the Notes
may petition, at the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee.



     If the Trustee fails to comply with Section 8.10, unless the Trustee’s duty to resign is
stayed as provided in TIA § 310(b), any Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.



     Notwithstanding the replacement of the Trustee pursuant to this Section 8.08, the Company’s
obligations under Section 8.07 shall continue for the benefit of the retiring Trustee.



     Section 8.09. Successor Trustee by Merger. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.



     In case at the time such successor or successors by merger, conversion or consolidation 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, 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 may
authenticate such Notes either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall
have.



     Section 8.10. Eligibility; Disqualification. There shall at all times be a Trustee hereunder
which shall be eligible to act as Trustee under Trust Indenture Act Sections 310(a)(1) and (2) and
which shall have a combined capital and surplus of at least $100,000,000, and have a Corporate
Trust Office in the Borough of Manhattan in New York City, State of New York. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of any
federal, state, territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such corporation 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, the Trustee shall resign immediately in the manner and with the effect



58









 




hereinafter
specified in this Article. To the extent permitted by the Trust Indenture Act, the Trustee shall
not be deemed to have a conflicting interest by virtue of being Trustee under (x) the indenture
dated as of April 10, 2006 between the Company and the Trustee, (y) the indenture dated as of June
11, 2007 between the Company and the Trustee and (z) the indenture dated as of March 15, 2010
between the Company and the Trustee.




     Section 8.11. Preferential Collection of Claims Against Company. If and when the Trustee
shall be or become a creditor of the Company, the Trustee shall comply with TIA § 311(a), excluding
any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall
be subject to TIA § 311(a) to the extent indicated.



ARTICLE 9

Satisfaction and Discharge of Indenture; Unclaimed Moneys




     Section 9.01. Satisfaction and Discharge of Indenture. When (a) the Company delivers to the
Trustee all Outstanding Notes (other than Notes which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.07) for cancellation or (b) all Outstanding
Notes have become due and payable and the Company deposits with the Trustee, the Paying Agent or
the Conversion Agent, as applicable, whether at the Stated Maturity, or any Fundamental Change
Repurchase Date, upon conversion or otherwise, cash or shares of Common Stock (or Reference
Property) and cash, as applicable under this Indenture, sufficient to pay all amounts due and owing
on all Outstanding Notes (other than Notes which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.07); and if, in any such case, 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, and the Trustee, on demand of the Company accompanied by an
Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
relating to the satisfaction and discharge contemplated by this provision have been complied with,
and at the cost and expense of the Company, shall execute proper instruments acknowledging such
satisfaction and discharging this Indenture. The Company agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred, 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 9.02. Application of Funds or Securities Deposited for Payment of Notes. All moneys
or securities deposited with the Trustee, Paying Agent or Conversion Agent, as applicable, shall be
held in trust and applied by it to the payment, either directly or through any Paying Agent or
Conversion Agent (other than the Company or any Subsidiary thereof, as applicable), to the Holders
of the Notes for the payment of which such moneys or securities have been deposited, of all sums
due and to become due thereon, but such money need not be segregated from other funds or securities
except to the extent required by law.



59









 





     Section 9.03. Repayment by Trustee, Paying Agent or Conversion Agent. In connection with the
satisfaction and discharge of this Indenture with respect to the Notes, all moneys or securities
then held by any Paying Agent or Conversion Agent under the provisions of this Indenture with
respect to the Notes shall, upon demand of the Company, be repaid to it and thereupon such Paying
Agent or Conversion Agent shall be released from all further liability with respect to such moneys
or securities.



          Any moneys or securities deposited with or paid to the Trustee, Paying Agent or Conversion
Agent, as applicable, for the payment of any amount on the Notes and not applied but remaining
unclaimed for two years after the date upon which such amount shall have become due and payable,
shall, upon the written request of the Company and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Company
by the Trustee, Paying Agent or Conversion Agent, as applicable, and the Holder of the Notes shall,
unless
otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Company for any payment which such Holder may be
entitled to collect, and all liability of the Trustee, Paying Agent or Conversion Agent with
respect to such moneys or securities shall thereupon cease; provided, however, that the Trustee,
Paying Agent or Conversion Agent, before being required to make any such repayment with respect to
moneys or securities deposited with it for any payment in respect of the Notes, shall, at the
expense of the Company, transmit to Holders of Global Notes in accordance with the customary
procedures of the Depositary and mail by first-class mail to Holders of Definitive Notes at their
addresses as they shall appear on the Note Register notice that such moneys or securities remain
and that, after a date specified therein, which shall not be less than 30 days from the date of
such communication or mailing, any unclaimed balance of such money or securities then remaining
will be repaid to the Company.




ARTICLE 10

Supplemental Indentures and Amendments




     Section 10.01. Without Consent of Holders. Without the consent of any Holders, the Company,
when authorized by a Board Resolution of the Company, and the Trustee, at any time and from time to
time, may amend, waive, modify or supplement this Indenture or the Notes for any of the following
purposes:



     (a) to cure any ambiguity, omission, defect or inconsistency that does not adversely
affect the rights of any Holder in any material respect;



     (b) to provide for the assumption of the Company’s obligations under this Indenture
and the Notes in accordance with Article 4;



     (c) to secure the Notes or to provide guarantees of the Notes;



60









 





     (d) to add covenants that would benefit the Holders of the Notes or to surrender any
rights of the Company under this Indenture;



     (e) to add Events of Default with respect to the Notes;



     (f) to make any change that does not adversely affect any Outstanding Notes in any
material respect;



     (g) to evidence and provide for the acceptance of the appointment of a successor
Trustee hereunder; or



     (h) to provide for the issuance of Additional Notes in accordance with the
limitations set forth in this Indenture as of the date hereof.



     Section 10.02. With Consent of Holders. With the written consent of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Notes (including, without
limitation, Additional Notes, if any) delivered to the Company and
the Trustee, the Company when authorized by a Board Resolution, together with the Trustee, may
amend, waive, modify or supplement any other provision of this Indenture or the Notes; provided,
however, that no such amendment, waiver, modification or supplement may, without the written
consent of the Holder of each Outstanding Note affected thereby:



     (a) change the Stated Maturity on any Note;



     (b) reduce the principal amount of or interest on any Note payable at Stated
Maturity or repurchase;



     (c) impair the Holder’s right to institute suit for the enforcement of any payment
on the Notes;



     (d) modify the provisions with respect to a Holder’s rights to require the Company
to repurchase Notes upon a Fundamental Change in a manner adverse to the Holders of the Notes,
including the Company’s obligations to repurchase the Notes following a Fundamental Change;



     (e) adversely affect the rights of Holders under the conversion provisions of the
Notes;



     (f) change the place or currency of payment of principal of or interest on any Note;



     (g) make any change in the percentage of principal amount of Notes necessary to
waive compliance with provisions of this Indenture;



61









 





     (h) make any change to this Section 10.02 or Section 10.03 (other than to increase
the percentage in principal amount required for modification or waiver or to provide for consent of
each affected Holder of Notes);



     (i) waive a Default or Event of Default in the payment of principal or interest on
the Notes (except a rescission of acceleration of the Notes by the Holders thereof as provided in
Section 7.02(b) of this Indenture and a waiver of the payment default that resulted from such
acceleration); or



     (j) modify the ranking or priority of any Note in any manner adverse to the Holders
of the Notes.



     Upon the written request of the Company accompanied by a copy of a Board Resolution
authorizing the execution of any such supplemental indenture or other agreement, instrument or
waiver, and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid,
the Trustee shall join with the Company in the execution of such supplemental indenture or other
agreement, instrument or waiver.



     It shall not be necessary for any act of Holders under this Section to approve the particular
form of any proposed supplemental indenture or other agreement, instrument or waiver, but it shall
be sufficient if such act shall approve the substance thereof.



     Section 10.03. Execution of Supplemental Indentures, Agreements and Waivers. In executing,
any supplemental indenture, agreement, instrument or waiver permitted by this Article 10 or the
modifications thereby of this Indenture, the Trustee shall be provided with, and (subject to
Section 8.01 hereof) shall be fully protected in relying upon, an Opinion of Counsel and an
Officers’ Certificate from each obligor under the Notes entering into such supplemental indenture,
agreement, instrument or waiver, each stating that the execution of such supplemental indenture,
agreement, instrument or waiver (a) is authorized or permitted by this Indenture; (b) does not
violate the provisions of any agreement or instrument evidencing any other Indebtedness of the
Company, or any Subsidiary of the Company; and (c) that all conditions precedent in this Indenture
relating to such Supplemental Indenture have been complied with. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture, agreement, instrument or waiver which
affects the Trustee’s own rights, duties or immunities under this Indenture, the Notes or
otherwise.



     Section 10.04. Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article 10, this Indenture, the Notes, if applicable, shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this Indenture and the
Notes, if applicable, as the case may be, for all purposes; and every Holder of Notes theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.



62









 





     Section 10.05. Compliance with Trust Indenture Act. Every supplemental indenture or
amendment to this Indenture or the Notes shall comply with the TIA as then in effect.



     Section 10.06. Reference in Notes to Supplemental Indentures. Notes authenticated and
delivered after the execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in a form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine, new Notes so
modified as to conform, in the opinion of the Trustee and the Board of Directors of the Company, to
any such supplemental indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee, at the expense of the Company, upon a Company Order in exchange for
Outstanding Notes.



     Section 10.07. Revocation and Effect of Consents and Waivers. A consent to an amendment or a
waiver by a Holder of a Note shall bind the Holder and every subsequent Holder of that Note or
portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation
of the consent or waiver is not made on the Note. However, any such Holder or subsequent Holder may
revoke the consent or waiver as to such Holder’s Note or portion of the Note if the Trustee
receives the notice of revocation before the date the amendment or waiver becomes effective. After
an amendment or
waiver becomes effective, it shall bind every Holder. An amendment or waiver made pursuant to
Section 10.02 shall become effective upon receipt by the Trustee of the requisite number of written
consents.



     The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action described above or
required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any such action, whether or not such
Persons continue to be Holders after such record date. No such consent shall become valid or
effective more than 120 days after such record date.



     Section 10.08. Notation on or Exchange of Notes. If an amendment changes the terms of a
Note, the Trustee may require the Holder of the Note to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Note regarding the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Note
shall issue and the Trustee, at the expense of the Company, shall authenticate a new Note that
reflects the changed terms. Failure to make the appropriate notation or to issue a new Note shall
not affect the validity of such amendment.



63









 





ARTICLE 11

Offer to Repurchase Upon a Fundamental Change




     Section 11.01. Purchase of Notes at Option of Holder Upon a Fundamental Change. (a) Subject
to Section 11.04 hereof, upon the occurrence of a Fundamental Change at any time prior to Stated
Maturity, each Holder may require the Company to repurchase the Notes on a date chosen by the
Company in its sole discretion that is no less than 20 Business Days and no more than 35 Business
Days (subject to extension to comply with applicable law) after the Company sends the Fundamental
Change Repurchase Right Notice (the “Fundamental Change Repurchase Date”), and the Company shall
repurchase on the Fundamental Change Repurchase Date, any or all Notes submitted for repurchase for
cash, at a price equal to 100% of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, to but not including the Fundamental Change Repurchase Date (the “Fundamental
Change Repurchase Price”), unless such Fundamental Change Repurchase Date falls after a Regular
Record Date and on or prior to the corresponding Interest Payment Date, in which case the Company
shall pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to
the Holder of record at the close of business on the corresponding Regular Record Date. The
principal amount of the Notes submitted for repurchase shall be equal to $2,000 or an integral
multiple of $1,000 in excess thereof and the principal amount of such Notes to remain Outstanding,
if any, shall be equal to $2,000 or an integral multiple of $1,000 in excess thereof.



     (b) Notwithstanding anything contained herein to the contrary, Holders of the Notes
will not have the right to require the Company to repurchase any Notes pursuant to the occurrence
of any of the events identified in clauses (2) or (3) of the definition of Fundamental Change (and
the Company will not be required to deliver the Fundamental Change Repurchase Right Notice
incidental thereto), if at least 90% of the consideration paid for the Common Stock (excluding cash
payments for fractional shares, cash payments made pursuant to dissenters’ appraisal rights and
cash dividends) in a Fundamental Change under clause (2) or clause (3) of the definition of
Fundamental Change consists of shares of common stock traded on The NASDAQ Global Select Market,
The NASDAQ Global Market, The New York Stock Exchange or another U.S. national securities exchange
or quoted on an established automated over-the-counter trading market in the United States (or will
be so traded or quoted immediately following the merger or consolidation) and, as a result of such
Fundamental Change, the Notes become convertible into such shares of such common stock.



     (c) At least 20 Business Days prior to the anticipated effective date of a
Fundamental Change (or if the Company does not have actual notice of a Fundamental Change 20
Business Days prior to the effective date, as soon as the Company has actual notice of such
Fundamental Change), the Company will provide to all Holders of the Notes, the Trustee, the Paying
Agent, the Registrar and the Conversion Agent a written notice (the “Fundamental Change Notice”)
stating:



64









 






     (i) if applicable, whether the Company will adjust the Conversion Rate
pursuant to Section 6.05(f) hereof;




     (ii) the anticipated effective date of the Fundamental Change; and




     (iii) whether the Company expects that Holders will have the right to
require the Company to repurchase their Notes as described in this Article 11.



     Section 11.02. Fundamental Change Repurchase Right Notice. On or before the 20th Trading Day
after the effective date of a Fundamental Change, the Company will provide to all Holders of the
Notes and the Trustee, the Paying Agent, the Registrar and the Conversion Agent a notice of the
occurrence of the Fundamental Change and of the resulting repurchase right (the “Fundamental Change
Repurchase Right Notice”). Each Fundamental Change Repurchase Right Notice shall state:




     (i) the events causing the Fundamental Change;




     (ii) if the Company is required to adjust the Conversion Rate and related
conversion obligation as described in Section 6.05(f) hereof pursuant to a Make-whole
Fundamental Change, the Conversion Rate and any adjustments to the Conversion Rate;




     (iii) the effective date, if applicable;




     (iv) the last date on which a Holder may exercise such repurchase right;




     (v) the Fundamental Change Repurchase Price;




     (vi) the Fundamental Change Repurchase Date;




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




     (viii) that the Notes with respect to which the Fundamental Change
Repurchase Right Notice has been given may be converted only if the Holder thereof
withdraws any Fundamental Change Repurchase Notice previously delivered by such Holder in
accordance with the terms of this Indenture; and




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



     Section 11.03. Fundamental Change Repurchase Notice. To exercise its right specified in
Section 11.01, a Holder must deliver, before the close of business on the second Business Day
immediately preceding the Fundamental Change Repurchase Date, the Notes to be repurchased, together
with a repurchase notice (a “Fundamental Change



65









 




Repurchase Notice”) duly completed in accordance
with the requirements below, to the Paying Agent. The Fundamental Change Repurchase Notice must
state:





     (i) if such Holder holds Definitive Notes, the certificate numbers of the
Notes which the Holder will deliver for repurchase;




     (ii) the portion of the principal amount of the Notes which the Holder will
deliver to be repurchased, which portion must be in a principal amount of $2,000 or an
integral multiple of $1,000 in excess thereof; and




     (iii) that such Notes are to be purchased by the Company as of the
Fundamental Change Repurchase Date pursuant to the terms and conditions specified in the
Notes and in this Indenture.



     If the Notes are not in certificated form, the Fundamental Change Repurchase Notice must
comply with the Applicable Procedures.



     To receive payment of the Fundamental Change Repurchase Price, Holders must either effect
book-entry transfer of beneficial interests in a Global Note in accordance with the Applicable
Procedures or deliver the Definitive Notes, together with necessary endorsement, to office of the
Paying Agent with, or at any time after delivery of, the Fundamental Change Repurchase Notice.
Holders will receive payment of the Fundamental Change Repurchase Price, subject to the Paying
Agent holding money or securities sufficient to make such payment on the Fundamental Change
Repurchase Date, promptly following the later of (a) the Fundamental Change Repurchase Date and
(b) the time of book-entry transfer or the delivery of the Notes by the Holder thereof in the
manner required by Section 11.03; provided, however, that such payment shall be so paid pursuant to
this Article 11 only if the Notes so delivered to the Paying Agent shall
conform in all respects to the description thereof in the related Fundamental Change
Repurchase Notice.



     Section 11.04. Effect of Purchase of Notes Upon a Fundamental Change. Unless the Company
defaults in the payment for the Notes to be repurchased pursuant to this Article 11, if the Payment
Agent, other than the Company or a Subsidiary thereof, holds money or securities sufficient to pay
the Fundamental Change Repurchase Price of such Notes on the Fundamental Change Repurchase Date,
then such Notes will cease to be Outstanding and interest, if any, shall cease to accrue on the
Notes or portions thereof delivered for repurchase on the Fundamental Change Repurchase Date
(whether or not book-entry transfer of the Notes is made and whether or not the Notes are delivered
to the Paying Agent) and all other rights of the Holders of the Notes to be repurchased pursuant to
this Article 11 shall terminate (other than the right to receive the Fundamental Change Repurchase
Price upon delivery or transfer of the Notes).



     Section 11.05. Covenant to Comply with Securities Laws Upon Purchase of Notes. The Company
will comply with the requirements of Rule 13e-4 and Rule 14e-, if



66









 




applicable, under the Exchange
Act, file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act
and otherwise comply with all applicable federal and state securities laws in connection with the
repurchase of the Notes by the Company upon a Fundamental Change. To the extent that the provisions
of any securities laws or regulations conflict with the provisions of this Article 11, the Company
will comply with the applicable securities laws and regulations and will not be deemed to have
breached its obligations under this Article 11 by virtue of such conflict.




     Section 11.06. Covenants of Company and Paying Agent Upon Purchase of Notes. On or before
the Fundamental Change Repurchase Date, the Company will, to the extent lawful:




     (i) accept for payment all Notes or portions thereof properly tendered;




     (ii) deposit with the Paying Agent an amount equal to the payment in respect
of all Notes or portions of Notes properly tendered; and




     (iii) deliver or cause to be delivered to the Trustee the Notes so accepted
together with an Officers’ Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased by the Company in accordance with the terms of this
Article 11.



     The Paying Agent will promptly mail to each Holder of Notes properly tendered the payment for
such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book
entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; provided that each new Note will be in a principal amount of $2,000 and
integral multiples of $1,000 in excess thereof.



     Section 11.07. Withdrawal of Fundamental Change Repurchase Notice and Effect Thereof. Notes
in respect of which a Fundamental Change Repurchase Notice has
been given by the Holder thereof may not be converted pursuant to Article 6 on or after the
date of the delivery of such Fundamental Change Repurchase Notice unless such Fundamental Change
Repurchase Notice has first been validly withdrawn as specified in this Section 11.07.
Notwithstanding anything contained herein to the contrary, any Holder that has delivered to the
Paying Agent the Fundamental Change Repurchase Notice contemplated by Section 11.03 hereof shall
have the right to withdraw such Fundamental Change Repurchase Notice, in whole or in part, by means
of a written notice of withdrawal delivered to the Paying Agent at any time prior to the close of
business on the second Business Day immediately prior to the Fundamental Change Repurchase Date,
specifying:




     (i) the principal amount of the Notes with respect to which such notice of
withdrawal is being submitted;



67









 






     (ii) if Definitive Notes have been issued, the certificate numbers of the
Definitive Notes with respect to which such notice of withdrawal is being submitted; and




     (iii) the principal amount, if any, of such Notes that remain subject to the
original Fundamental Change Repurchase Notice.



     If the Notes with respect to which the notice of withdrawal is being submitted are not in
certificated form, the notice of withdrawal must comply with the Applicable Procedures.



     Section 11.08. Covenants of Trustee Upon Purchase of Notes. The Trustee shall be under no
obligation to ascertain the occurrence of a Fundamental Change or to give notice to the Holders
with respect thereto. The Trustee may conclusively assume, in the absence of written notice to the
contrary from the Company, that no Fundamental Change has occurred.



ARTICLE 12

Miscellaneous




     Section 12.01. Trust Indenture Act Controls. If any provision of this Indenture limits,
qualifies or conflicts with another provision which is required to be included in this Indenture by
the TIA, the provision required by the TIA shall control.



     Section 12.02. Notices. Any notice or communication shall be in writing and delivered in
person or mailed by first-class mail addressed as follows:



If to the Company:




Ciena Corporation

1201 Winterson Road

Linthicum, MD 21090

Attn: Chief Financial Officer



If to the Trustee:




The Bank of New York Mellon Trust Company, N.A.

525 William Penn Place, 38th Floor

Pittsburgh, PA 15259

Attn: Corporate Trust Administration




     The Company on one hand or the Trustee on the other hand by notice to the other may designate
additional or different addresses for subsequent notices or communications.



68









 





     Any notice or communication mailed to a Holder shall be mailed to the Holder at the Holder’s
address as it appears on the Note Register and shall be sufficiently given if so mailed within the
time prescribed. Notices shall be deemed to have been given as of the date of mailing.



     The Trustee agrees to accept and act upon instructions or directions pursuant to this
Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured
electronic methods, provided, however, that the Trustee shall have received an incumbency
certificate listing persons designated to give such instructions or directions and containing
specimen signatures of such designated persons, which such incumbency certificate shall be amended
and replaced whenever a person is to be added or deleted from the listing. If the Company elects
to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic
method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s
understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for
any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and
compliance with such instructions notwithstanding such instructions conflict or are inconsistent
with a subsequent written instruction. The Company agrees to assume all risks arising out of the
use of such electronic methods to submit instructions and directions to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or
interception and misuse by third parties.



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



     Section 12.03. Communication by Holders with Other Holders. Holders may communicate pursuant
to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Notes.
The Trustee shall comply with TIA § 312(b). The
Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).



     Section 12.04. Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take or refrain from taking any action under this
Indenture, the Company shall deliver to the Trustee an Officers’ Certificate stating that all
conditions precedent (including covenants compliance with which constitutes a condition 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
(including covenants compliance with which constitutes a condition precedent), if any, have been
complied with.




69












 





     Section 12.05. Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a covenant or condition provided for in this Indenture
shall include:



     (a) a statement that the individual making such certificate or opinion has read such
covenant or condition;



     (b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;



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



     (d) a statement as to whether or not, in the opinion of such individual, such
covenant or condition has been complied with.



     In giving an Opinion of Counsel, counsel may rely as to factual matters on an Officers’
Certificate or such other certificates of Officer(s) as it may deem appropriate and on certificates
of public officials.



     Section 12.06. When Notes Disregarded. In determining whether the Holders of the required
principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or by any Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company shall be disregarded and deemed not to be Outstanding,
except that, for the purpose of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Notes which a Responsible Officer of the Trustee
actually knows are so owned shall be so disregarded. Also, subject to the foregoing, only Notes
Outstanding at the time shall be considered in any such determination.



     Section 12.07. Rules by Trustee, Paying Agent and Registrar. The Trustee may make reasonable
rules for action by, or a meeting of, Holders. The Registrar and the Paying Agent may make
reasonable rules for their functions.



     Section 12.08. Governing Law. This Indenture and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.



     Section 12.09. No Recourse Against Others. No recourse for the payment of the principal of,
or interest on any Note and no recourse under or upon any obligation, covenant, agreement of the
Company or of a guarantor in this Indenture, the Notes, or in any supplemental indenture, or
because of the creation of any Indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer, director, or subsidiary, past, present or
future, of the Company or of any successor



70









 




corporation or entity, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, it being understood that all
such liability is hereby waived and released as a condition to, and as a consideration for,
the execution and delivery of this Indenture and the issue of the Notes.




     Section 12.10. Successors. All agreements of the Company in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture shall bind its
successors.



     Section 12.11. Multiple Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.



     Section 12.12. Force Majeure. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of their obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond their control, including, without limitation, strikes, work
stoppages other than of the Trustee, respectively, accidents, acts of war or terrorism, civil or
military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities; it being understood that the Company or Trustee, as applicable, shall
use reasonable efforts that are consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the circumstances.



     Section 12.13. Not Responsible for Recitals or Issuance of Notes. The recitals contained
herein and in the Notes, except the Trustee’s certificates of authentication, shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility
for their correctness. The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Securities. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Notes or the proceeds thereof.



     Section 12.14. Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION
CONTEMPLATED HEREBY.



[Remainder of Page Intentionally Left Blank]




 









 





     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as
of the date first written above.



	 	 	 	 	 
	 	CIENA CORPORATION

 	 
	 	By:  	/s/ David M. Rothenstein
 	 
	 	 	Name:  	David M. Rothenstein 	 
	 	 	Title:  	Senior Vice President,
 General
Counsel and Secretary 	 
	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON

     TRUST COMPANY, N.A., as Trustee

 	 
	 	By:  	/s/ James M. Young
 	 
	 	 	Name:  	James M. Young 	 
	 	 	Title:  	Senior Associate 	 
	 




 









 





Exhibit A




[FORM OF FACE OF NOTE]



CIENA CORPORATION



3.75% Convertible Senior Notes due 2018



CUSIP: 171779 AG6




ISIN: US171779AG67




			
	 	 	 
	No.
	 	$                    






CIENA CORPORATION promises to pay to




or its registered assigns,




the principal sum of            DOLLARS




on October 15, 2018.




Interest Payment Dates: April 15 and October 15




Regular Record Dates: April 1 and October 1




Dated:                      , 2010




	 	 	 	 	 
	 	CIENA CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



This is one of the Notes referred to in the

within-mentioned Indenture:




	 	 	 	 	 

	THE BANK OF NEW YORK MELLON

	 	 
	TRUST COMPANY, N.A., as Trustee

	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 






A-1









 





[INCLUDE IF A GLOBAL NOTE]



[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DEPOSITARY”),
OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT
THEREOF AS THE OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT 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.




     TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY, AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.]



[INCLUDE IF A RESTRICTED SECURITY]




     [THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND
THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.



A-2









 





     THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY
BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) PURSUANT TO ANY OTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO THIS CLAUSE (II) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, (III) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO
IN (A) ABOVE.]



A-3









 





[BACK OF NOTE]



CIENA CORPORATION



3.75% Convertible Senior Notes due 2018



     Capitalized terms used herein have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.



     (1) Interest. Ciena Corporation, a Delaware corporation (the “Company”), promises to pay
interest on the principal amount of this Note at 3.75% per annum from October 18, 2010 until Stated
Maturity. The Company will pay interest, if any, semi-annually in arrears on April 15 and October
15 of each year (subject to limited exceptions if the Note is converted or purchased prior to such
date), or if any such day is not a Business Day, on the immediately following Business Day (each,
an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from October 18, 2010; provided that if
there is no existing Default in the payment of interest, and if this Note is authenticated between
a Regular Record Date (as defined below) and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date; provided, further, that the first
Interest Payment Date shall be April 15, 2011. The Company will pay interest on overdue principal
from time to time on demand at the rate then in effect to the extent lawful; it will pay interest
on overdue installments of interest, if any (without regard to any applicable grace periods), from
time to time on demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months. All references to “interest” in this Note are
deemed to include Additional Interest, if any, payable pursuant to Section 2.10 or Section 7.01 of
the Indenture, as applicable.



     (2) Method of payment. The Company will pay interest on the Notes, if any, to the Persons who
are registered Holders of Notes at the close of business on April 1 or October 1 next preceding the
Interest Payment Date (each a “Regular Record Date”), even if such Notes are canceled after such
Regular Record Date and on or before such Interest Payment Date. The Notes will be payable as to
principal, if any, and interest at the office or agency of the Company maintained for such purpose
within or without the City and State of New York, or, at the option of the Company, such payments
may be made by check mailed to the Holders at their addresses set forth in the Note Register;
provided that the Notes represented by a Global Note will be paid by wire transfer of immediately
available funds to the accounts specified by the Depositary in accordance with the settlement
procedures of the Depositary, and all other Notes with an aggregate principal amount in excess of
$2 million will be paid by wire transfer of immediately available funds if the Holders have
provided wire transfer instructions at least 10 Business Days prior to the payment date to the
Company or the Paying Agent. Such payment will be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and private debts.



A-4









 





     (3) Paying agent, registrar and conversion agent. Initially, The Bank of New York Mellon Trust
Company, N.A., the Trustee under the Indenture, will act as Paying Agent, Registrar and Conversion
Agent. The Company may change any Paying Agent, Registrar or Conversion Agent without notice to any
Holder. The Company or any of its Subsidiaries may act in any such capacity.



     (4) Indenture. The Company issued the Notes under the Indenture dated as of October 18, 2010
(the “Indenture”) between the Company and the Trustee. The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are
subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of
such terms. To the extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured
obligations of the Company.



     (5) Repurchase at the option of holder upon a fundamental change. Upon the occurrence of a
Fundamental Change at any time prior to Stated Maturity, each Holder may require the Company to
repurchase the Notes on a date chosen by the Company in its sole discretion that is no less than 20
Business Days and no more than 35 Business Days after the mailing of the Fundamental Change
Repurchase Right Notice (the “Fundamental Change Repurchase Date”), and the Company shall
repurchase on the Fundamental Change Repurchase Date, any or all Notes submitted for repurchase for
cash, at a price equal to 100% of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, to but not including the Fundamental Change Repurchase Date, unless such
Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to the
corresponding Interest Payment Date, in which case the Company shall pay the full amount of accrued
and unpaid interest payable on such Interest Payment Date to the Holder of record at the close of
business on the corresponding Regular Record Date. At least 20 Business Days prior to the
anticipated effective date of a Fundamental Change (or if the Company does not have actual notice
of a Fundamental Change 20 Business Days prior to the effective date, as soon as the Company has
actual notice of such Fundamental Change), the Company will provide to all Holders, the Trustee,
the Paying Agent, the Registrar and the Conversion Agent a Fundamental Change Notice as required by
the Indenture. On or before the 20th Trading Day after the effective date of a Fundamental Change,
the Company will provide to all Holders, the Trustee, the Paying Agent, the Registrar and
Conversion Agent a Fundamental Change Repurchase Right Notice.



     (6) Conversion. At any time prior to the close of business on the date of Stated Maturity,
Holders of the Notes may surrender any portion of the principal amount of any Note that is an
integral multiple of $1,000 for conversion (provided that the principal amount of such Note to
remain Outstanding after such conversion is equal to $2,000 or any integral multiple of $1,000 in
excess thereof) into fully paid and non-assessable shares of Common Stock at the Conversion Rate,
determined as provided in the Indenture, in effect at the time of conversion.



A-5









 





     (7) Denominations, transfer, exchange. The Notes are in registered form without coupons in
denominations of $2,000 and an integral multiple of $1,000 in excess thereof. The transfer of Notes
may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the transfer of any Note or
portion of a Note selected for conversion or repurchase, except for the unconverted or
unrepurchased portion of any Note being converted or repurchased in part. Also, the Company need
not exchange or register the transfer of any Notes during the period between a Regular Record Date
and the corresponding Interest Payment Date.



     (8) Persons deemed owners. The registered Holder of a Note may be treated as its owner for all
purposes.



     (9) Amendment, supplement and waiver. Subject to certain exceptions, the Indenture and the
Notes may be amended or supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the then Outstanding Notes, including Additional Notes, if any, and
any existing Default or compliance with any provision of the Indenture and the Notes may be waived
with the consent of the Holders of a majority in aggregate principal amount of the then Outstanding
Notes, including Additional Notes, if any, voting as a single class. Without the consent of any
Holder of a Note, the Indenture and the Notes may be amended or supplemented to cure any ambiguity,
omission, defect or inconsistency that does not adversely affect the rights of any Holder in any
material respect, to provide for a successor Trustee under the Indenture, to provide for the
assumption of the Company’s obligations under the Indenture or the Notes in accordance with the
provisions in the Indenture, to comply with requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the TIA, to secure the Notes or provide
guarantees of the Notes, to provide for the issuance of Additional Notes, to add covenants that
would benefit the Holders of the Notes or to surrender any rights of the Company under the
Indenture, to add Events of Default with respect to the Notes, to make any change that does not
adversely affect any Outstanding Notes in any material respect, or to evidence and provide for the
acceptance of the appointment of a successor Trustee under the Indenture.



     (10) Trustee dealings with company. The Trustee, in its individual or any other capacity, may
make loans to, accept deposits from, and perform services for the Company or its Affiliates, and
may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.



     (11) No recourse against others. A director, officer, employee, incorporator or stockholder of
the Company, as such, will not have any liability for any obligations of the Company under the
Notes or the Indenture or for any claim based on, in respect of, or by reason of, such obligations
or their creation. Each Holder by accepting a Note waives and



A-6









 




releases all such liability. The waiver and release are part of the consideration for the
issuance of the Notes.




     (12) Open market purchases. The Company may, to the extent permitted by applicable law, at any
time, and from time to time, purchase Notes at any price in the open market or otherwise.



     (13) Authentication. This Note will not be valid until authenticated by the manual signature
of the Trustee or an Authenticating Agent.



     (14) Abbreviations. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (= custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).



     (15) CUSIP numbers. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the
Notes, and the Trustee may use CUSIP numbers in notices of repurchase or conversion as a
convenience to Holders. No representation is made as to the accuracy of such numbers either as
printed on the Notes or as contained in any notice of repurchase or conversion, and reliance may be
placed only on the other identification numbers placed thereon.



     (16) Governing law. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THE INDENTURE AND THIS NOTE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.



A-7









 





ASSIGNMENT FORM



To assign this Note, fill in the form below:




	 	 	 
	(I) or (we) assign and transfer this Note to
	 	 
	 

	 	 
	 

	 	(Insert assignee’s legal name)






 




(Insert assignee’s soc. sec. or tax I.D. No.)




 




(Print or type assignee’s name, address and zip code)



and irrevocably appoint            to transfer this Note on the books of the Company. The
agent may substitute another to act for him.



Date:                                         




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

	 	 	 	 
	 

	 	 	 	(Sign exactly as your name appears on the face of this
Note)





Signature Guarantee*:                                                            






 




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




A-8









 










SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE




     The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Principal	 	 	 	 
	 	 	Amount of	 	 	Amount of	 	 	amount of this	 	 	Signature of	 
	 	 	decrease in	 	 	increase in	 	 	Global Note	 	 	authorized	 
	 	 	principal	 	 	principal	 	 	following such	 	 	officer of	 
	 	 	amount of this	 	 	amount of this	 	 	decrease (or	 	 	Trustee or Notes	 
	Date of exchange	 	Global Note	 	 	Global Note	 	 	increase)	 	 	Custodian	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 





A-9









 





Exhibit B




FORM OF CONVERSION NOTICE




Ciena Corporation




The Bank of New York Mellon Trust Company, N.A.





			
	Re:	 	3.75% Convertible Senior Notes due 2018

CONVERSION NOTICE (CUSIP 171779 AG6)





     Reference is hereby made to the Indenture, dated as of October 18, 2010 (the “Indenture”),
between Ciena Corporation, as issuer (the “Company”), and The Bank of New York Mellon Trust
Company, N.A., as trustee (the “Trustee”). Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.



                                              (the “Owner”) owns and proposes to convert the Note[s] or interest in such
Note[s] specified herein, in the principal amount of $                      in such Note[s] or interests (the
“Conversion”) pursuant to Article 6 of the Indenture. In connection with the Conversion, the Owner
hereby certifies that, as Owner of this Note, he/she hereby irrevocably exercises the option to
convert this Note, or such portion of this Note in the principal amount designated above into the
number of shares of Common Stock of the Company equal to (x) the aggregate principal amount of
Notes to be converted divided by 1,000 multiplied by (y) the Conversion Rate in effect on the
Conversion Date. The Owner directs that such shares, together with a check in payment for any
fractional shares and any Notes representing any unconverted principal amount hereof, be delivered
to and be registered in the name of the undersigned unless a different name has been indicated
below. If shares of Common Stock or Notes are to be registered in the name of a Person other than
the undersigned, (a) the undersigned will pay all transfer taxes payable with respect thereto and
(b) signature(s) must be guaranteed by an eligible guarantor institution with membership in an
approved signature guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange Act of
1934. Any amount required to be paid by the undersigned on account of interest accompanies this
Note.


Dated:                                        




	 	 	 

	 

	 	 
 
	 

	 	Signature(s)






B-1









 




If shares of Common Stock or Notes are to be registered in the name of a Person other than the
Holder, please print such Person’s name and address:




	 	 	 

	 

(Name)

	 	 
	 
	 	 
	 

(Address)

	 	 






Social Security or other Identification Number,

if any.




[Signature Guaranteed]



If only a portion of a Definitive Note is to be converted, please indicate:



1. Principal amount to be converted: $                                        



2. Principal amount and denomination of Notes representing unpurchased principal amount to be
issued:




	 	 	 

	Amount: $

	 	Denominations: $





($2,000 or any integral multiple of $1,000 in excess thereof, provided that the unconverted portion
of such principal amount is $2,000 or any integral multiple of $1,000 in excess thereof.)




B-2









 





Exhibit C




FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE



TO: THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. as Paying Agent




     The undersigned registered owner of this Note hereby irrevocably acknowledges receipt of a
notice from Ciena Corporation (the “Company”) as to the occurrence of a Fundamental Change with
respect to the Company and requests and instructs the Company to repurchase for cash, at a price
equal to 100% of the aggregate principal amount thereof plus accrued and unpaid interest, if any,
to but not including the Fundamental Change Repurchase Date to the registered holder hereof;
provided that if the Fundamental Change Repurchase Date falls after a Regular Record Date and on or
prior to the corresponding Interest Payment Date, in which case the Company shall pay the full
amount of accrued and unpaid interest payable on such Interest Payment Date to the Holder of record
at the close of business on the corresponding Regular Record Date. Capitalized terms used herein
but not defined shall have the meanings ascribed to such terms in the Indenture.


Dated:                                                             




	 	 	 

	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	Signature(s)





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.



Certificate numbers of the Notes (if applicable):



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



Social Security or Other Taxpayer Identification Number:





C-1