Exhibit 4.4


 




 





 


CUBIST PHARMACEUTICALS, INC.


[   .     ]%
CONVERTIBLE SENIOR NOTES DUE 2017


 






 


INDENTURE

DATED AS OF [          ],
2010


 






 


THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.,


AS TRUSTEE


 


 




 




















 


TABLE OF CONTENTS


 






 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  
	
  DEFINITIONS
  AND INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  Section 1.01. Definitions

  	
   

  	
  1

  
	
  Section 1.02. Other Definitions

  	
   

  	
  8

  
	
  Section 1.03. Trust Indenture Act Provisions

  	
   

  	
  9

  
	
  Section 1.04. Rules of Construction

  	
   

  	
  10

  
	
  Section 1.05.
  References to Additional Interest

  	
   

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
  THE
  SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section 2.01. Form and Dating

  	
   

  	
  10

  
	
  Section 2.02. Execution and Authentication; Payments of Interest and Defaulted
  Amounts

  	
   

  	
  12

  
	
  Section 2.03. Registrar, Paying Agent and Conversion Agent

  	
   

  	
  14

  
	
  Section 2.04. Paying Agent to Hold Money in Trust

  	
   

  	
  15

  
	
  Section 2.05. Holder

  	
   

  	
  15

  
	
  Section 2.06. Transfer and Exchange

  	
   

  	
  15

  
	
  Section 2.07. Replacement Securities

  	
   

  	
  16

  
	
  Section 2.08. Outstanding Securities

  	
   

  	
  17

  
	
  Section 2.09. Treasury Securities

  	
   

  	
  17

  
	
  Section 2.10. Temporary Securities

  	
   

  	
  17

  
	
  Section 2.11. Cancellation; Repurchase

  	
   

  	
  17

  
	
  Section 2.12. Additional Transfer and Exchange Requirements

  	
   

  	
  18

  
	
  Section 2.13. CUSIP Numbers

  	
   

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
  NO
  REDEMPTION; REPURCHASE UPON A FUNDAMENTAL CHANGE

  
	
   

  	
   

  	
   

  
	
  Section 3.01. No Optional Redemption

  	
   

  	
  20

  
	
  Section 3.02. Repurchase At Option of The Holder Upon A Fundamental Change

  	
   

  	
  20

  
	
  Section 3.03. Compliance With Securities Laws Upon Purchase of Securities

  	
   

  	
  23

  
	
  Section 3.04.
  No Repurchase Upon Acceleration

  	
   

  	
  23

  
	
  Section 3.05. Repayment to the Company

  	
   

  	
  23

  
	
  Section 3.06.
  Partial Repurchase

  	
   

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  
	
  CONVERSION

  
	
   

  	
   

  	
   

  
	
  Section 4.01. Conversion Rights

  	
   

  	
  24

  
	
  Section 4.02. Settlement Upon Conversion; Conversion Procedures

  	
   

  	
  26

  
	
  Section 4.03. Company to Provide Stock

  	
   

  	
  30

  



 

















 


	
  Section 4.04. Adjustment to Conversion Rate Upon a Make-Whole Fundamental Change

  	
   

  	
  30

  
	
  Section 4.05. Conversion Rate Adjustments

  	
   

  	
  32

  
	
  Section 4.06. Adjustments of Prices

  	
   

  	
  40

  
	
  Section 4.07.
  Effect of Recapitalizations, Reclassifications
  and Changes of the Common Stock

  	
   

  	
  40

  
	
  Section 4.08. Cancellation of Converted Securities

  	
   

  	
  42

  
	
  Section 4.09. Stockholders Rights

  	
   

  	
  42

  
	
  Section 4.10. Trustee’s Disclaimer

  	
   

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 5.01. Payment on the Securities

  	
   

  	
  43

  
	
  Section 5.02. SEC Reports

  	
   

  	
  44

  
	
  Section 5.03. Compliance Certificates

  	
   

  	
  44

  
	
  Section 5.04. Further Instruments and Acts

  	
   

  	
  44

  
	
  Section 5.05. Maintenance of Corporate Existence

  	
   

  	
  44

  
	
  Section 5.06. Stay, Extension and Usury Laws

  	
   

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
  CONSOLIDATION,
  MERGER, SALE, CONVEYANCE, TRANSFER OR LEASE

  
	
   

  	
   

  	
   

  
	
  Section 6.01. Company May Consolidate, Etc, Only on Certain Terms

  	
   

  	
  45

  
	
  Section 6.02. Successor Substituted

  	
   

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
  DEFAULT
  AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 7.01. Events Of Default

  	
   

  	
  46

  
	
  Section 7.02. Acceleration

  	
   

  	
  48

  
	
  Section 7.03. Other Remedies

  	
   

  	
  48

  
	
  Section 7.04. Additional Interest

  	
   

  	
  48

  
	
  Section 7.05. Waiver of Defaults and Events of Default

  	
   

  	
  49

  
	
  Section 7.06. Control by Majority

  	
   

  	
  49

  
	
  Section 7.07. Limitations on Suits

  	
   

  	
  49

  
	
  Section 7.08. Rights of
  Holders to Receive Payment and to Convert

  	
   

  	
  50

  
	
  Section 7.09. Collection Suit By Trustee

  	
   

  	
  50

  
	
  Section 7.10. Trustee May File Proofs
  of Claim

  	
   

  	
  50

  
	
  Section 7.11. Priorities

  	
   

  	
  51

  
	
  Section 7.12. Undertaking For Costs

  	
   

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 8.01. Duties of Trustee

  	
   

  	
  51

  
	
  Section 8.02. Rights of Trustee

  	
   

  	
  52

  
	
  Section 8.03. Individual Rights of Trustee

  	
   

  	
  54

  
	
  Section 8.04. Trustee’s Disclaimer

  	
   

  	
  54

  



 


ii

















 


	
  Section 8.05. Notice of Default or Events of Default

  	
   

  	
  54

  
	
  Section 8.06. Reports by Trustee to Holders

  	
   

  	
  54

  
	
  Section 8.07. Compensation and Indemnity

  	
   

  	
  54

  
	
  Section 8.08. Replacement of Trustee

  	
   

  	
  55

  
	
  Section 8.09. Successor Trustee by Merger, Etc.

  	
   

  	
  56

  
	
  Section 8.10. Eligibility; Disqualification

  	
   

  	
  56

  
	
  Section 8.11. Preferential Collection of Claims Against Company

  	
   

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
  SATISFACTION
  AND DISCHARGE OF INDENTURE

  
	
   

  	
   

  	
   

  
	
  Section 9.01. Satisfaction And Discharge Of Indenture

  	
   

  	
  57

  
	
  Section 9.02. Application of Trust Money

  	
   

  	
  57

  
	
  Section 9.03. Repayment to Company

  	
   

  	
  57

  
	
  Section 9.04. Reinstatement

  	
   

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
  AMENDMENTS,
  SUPPLEMENTS AND WAIVERS

  
	
   

  	
   

  	
   

  
	
  Section 10.01. Without Consent of Holders

  	
   

  	
  58

  
	
  Section 10.02. With Consent of Holders

  	
   

  	
  59

  
	
  Section 10.03. Compliance With Trust Indenture Act

  	
   

  	
  60

  
	
  Section 10.04. Revocation and Effect of Consents

  	
   

  	
  60

  
	
  Section 10.05. Notation on or Exchange of Securities

  	
   

  	
  60

  
	
  Section 10.06. Trustee to Sign Amendments, Etc.

  	
   

  	
  60

  
	
  Section 10.07. Effect of Supplemental Indentures

  	
   

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 11.01. Trust Indenture Act Controls

  	
   

  	
  61

  
	
  Section 11.02. Notices

  	
   

  	
  61

  
	
  Section 11.03. Communications by Holders With Other Holders

  	
   

  	
  62

  
	
  Section 11.04. Certificate and Opinion as to Conditions Precedent

  	
   

  	
  62

  
	
  Section 11.05. Record Date for Vote or Consent of Holders

  	
   

  	
  63

  
	
  Section 11.06. Rules By Trustee, Paying Agent, Registrar And Conversion Agent

  	
   

  	
  63

  
	
  Section 11.07. Legal Holidays

  	
   

  	
  63

  
	
  Section 11.08. Governing Law

  	
   

  	
  63

  
	
  Section 11.09. No Adverse Interpretation of Other Agreements

  	
   

  	
  64

  
	
  Section 11.10. No Personal Liability of Directors, Officers, Employees or
  Stockholders

  	
   

  	
  64

  
	
  Section 11.11. Successors

  	
   

  	
  64

  
	
  Section 11.12. Multiple Counterparts

  	
   

  	
  64

  
	
  Section 11.13. Separability

  	
   

  	
  64

  
	
  Section 11.14. Tax Treatment

  	
   

  	
  64

  
	
  Section 11.15. Table of Contents, Headings, Etc.

  	
   

  	
  64

  
	
  Section 11.16. Force Majeure

  	
   

  	
  64

  
	
  Section 11.17. Waiver of Jury Trial

  	
   

  	
  64

  



 


iii

















 


	
  EXHIBIT

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of Security

  	
   

  	
  A-1

  
				



 


iv

















 


INDENTURE, dated as of
[          ], 2010, between
CUBIST PHARMACEUTICALS, INC., a Delaware corporation (the “Company”), and THE BANK OF NEW YORK MELLON TRUST COMPANY,
N.A., a national banking association, as Trustee (the “Trustee”).


 


The Company and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit of
the Holders of the Company’s [   .    ]%
Convertible Senior Notes due 2017 (as are issued under this Indenture, and as
amended or supplemented from time to time, the “Securities”).


 


ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01.  Definitions.


 


“Additional
Interest” means all amounts, if any, payable pursuant to Section 7.04.


 


“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 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.


 


“Agent”
means any Registrar, Paying Agent or Conversion Agent.


 


“Applicable
Procedures” means, with respect to any transfer or exchange of beneficial
ownership interests in a Global Security, the rules and procedures of the
Depositary, in each case to the extent applicable to such transfer or exchange.


 


“Bankruptcy
Law” means Title 11 of the United States Code (or any successor
thereto) or any similar federal or state law for the relief of debtors.


 


“Bid
Solicitation Agent” means the Person appointed by the Company to
solicit bids for the Trading Price of the Securities in accordance with Section 4.01(b)(ii).  The Company shall initially act as the Bid
Solicitation Agent.


 


“Board of
Directors” means either the board of directors of the Company or any
committee of the Board of Directors authorized to act for it with respect to
this Indenture.


 


“Business Day”
means each day that is not a Legal Holiday.


 


“Capital
Stock” of any Person means (a) in the case of a corporation,
corporate stock of such Person, (b) in the case of an association or
business entity, shares, interests, participations, rights or other equivalents
(however designated) of corporate stock of such Person, (c) in the case of
a partnership or limited liability company, partnership or membership interests
(whether general or limited) of such Person and (d) in the case of any
other legal form, any other interest 


 

















 


or participation of such Person that
confers the right to receive a share of the profits and losses of, or
distribution of assets of, such Person.


 


“Cash”
or “cash” means such coin or currency of
the United States as at any time of payment is legal tender for the payment of
public and private debts.


 


“Certificated
Security” means a Security that is in substantially the form
attached hereto as Exhibit A and that does not include the text or
the schedule called for by footnotes 1 through 5 thereof.


 


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


 


“Common
Equity” of any Person means Capital Stock of such Person that is
generally entitled (a) to vote in the election of directors of such Person
or (b) if such Person is not a corporation, to vote or otherwise
participate in the selection of the governing body, partners, managers or
others that will control the management or policies of such Person.


 


“Common Stock”
means the common stock of the Company, $0.001 par value per share, subject to Section 4.07.


 


“Company”
means the party named as such in the first paragraph of this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture,
and thereafter “Company” shall mean such successor
Company.


 


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


 


“Corporate
Trust Office” means the office of the Trustee at the address
specified in Section 11.02 or such other address as to which the Trustee
may give notice to the Company.


 


“Custodian”
means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.


 


“Daily
Conversion Value” means, for each of the 25 consecutive Trading Days
during the Observation Period, 4% of the product of (a) the Conversion
Rate on such Trading Day and (b) the Daily VWAP of the Common Stock on
such Trading Day.


 


“Daily
Measurement Value” means the Specified Dollar Amount (if any), divided by 25.


 


“Daily
Settlement Amount,” for each of the 25 consecutive Trading Days
during the Observation Period, shall consist of:


 


(a)           cash equal to the lesser of (i) the Daily Measurement
Value and (ii) the Daily Conversion Value; and


 


(b)           if the Daily Conversion Value exceeds the Daily
Measurement Value, a number of shares of Common Stock equal to (i) the
difference between the Daily 


 


2

















 


Conversion Value and the Daily
Measurement Value, divided by (ii) the
Daily VWAP for such Trading Day.


 


“Daily VWAP”
means, for each of the 25 consecutive Trading Days during the applicable
Observation Period, the per share volume-weighted average price as displayed
under the heading “Bloomberg VWAP” on Bloomberg page “CBST <equity>
AQR” (or its equivalent successor if such page is not available) in
respect of the period from the scheduled open of trading until the scheduled
close of trading of the primary trading session on such Trading Day (or if such
volume-weighted average price is unavailable, the market value of one share of
Common Stock on such Trading Day determined, using a volume-weighted average
method, by a nationally recognized independent investment banking firm retained
for this purpose by the Company).  The “Daily VWAP” shall be determined without regard to
after-hours trading or any other trading outside of the regular trading session
trading hours.


 


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


 


“Defaulted
Amounts” means any amounts on any Securities (including, without
limitation, the Fundamental Change Repurchase Price, principal and interest)
that are payable but are not punctually paid or duly provided for.


 


“Ex-Dividend
Date” means the first date on which the shares of the Common Stock trade
on the applicable exchange or in the applicable market, regular way, without
the right to receive the issuance, dividend or distribution in question, from
the Company or, if applicable, from the seller of Common Stock on such exchange
or market (in the form of due bills or otherwise) as determined by such
exchange or market.


 


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


 


“Fundamental
Change” shall be deemed to have occurred at the time after the
Securities are originally issued if any of the following occurs:


 


(a)           the Common Stock (or other common stock into which the
Securities are then convertible) ceases to be listed on any of The New York
Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or
any of their respective successors);


 


(b)           any Person, including any syndicate or group deemed to be
a “Person” under Section 13(d)(3) of the Exchange Act, 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 the 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 and any of its employee benefit plans;


 


(c)           the Company merges or consolidates with or into any other
Person (other than one of its Subsidiaries), another Person merges or
consolidates with or into the


 


3

















 


Company, or the Company conveys,
sells, transfers or leases all or substantially all of its assets to another
Person in one transaction or a series of related transactions, other than any
transaction:


 


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


 


(ii)           pursuant to which the holders of all
classes of the Company’s Common Equity immediately prior to the transaction
have the entitlement to exercise, directly or indirectly, 50% or more of the
total voting power of all classes of the Capital Stock of the continuing or
surviving entity or transferee or parent thereof entitled to vote generally in
the election of directors or managers of the continuing or surviving entity or
transferee or parent thereof immediately after the transaction in substantially
the same proportions as such entitlement immediately prior to such transaction;
or


 


(d)           the Company’s stockholders approve any plan or proposal
for the liquidation or dissolution of the Company;


 


provided,
however, that a transaction or
transactions described in clause (b) or (c) above shall not constitute
a Fundamental Change and Holders shall not have the right to require the
Company to repurchase any Securities (and the Company shall 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 and cash payments made pursuant to dissenters’
or appraisal rights) in a merger or consolidation or a conveyance, sale,
transfer or lease otherwise constituting a Fundamental Change under clause (b) and/or
clause (c) above consists of shares of common stock that are listed on any
of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ
Global Market (or any of their respective successors) or will be so traded or
quoted immediately following such transaction or transactions and, as a result
of the transaction or transactions, the Securities become convertible into such
consideration, excluding cash payments for fractional shares and cash payments
made pursuant to dissenters’ or appraisal rights (subject to the settlement
provisions of Section 4.02).  For
purposes of this definition, whether a Person is a “beneficial owner” will be
determined in accordance with Rule 13d-3 under the Exchange Act, and “Person”
includes any syndicate or group that would be deemed to be a “person” under Section 13(d)(3) of
the Exchange Act.


 


“GAAP”
means generally accepted accounting principles in the United States of America
as in effect as of the date of this Indenture, including those set forth in (1) the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants, (2) the statements and
pronouncements of the Financial Accounting Standards Board, (3) such other
statements by such other entity as approved by a significant segment of the
accounting profession and (4) the rules and regulations of the SEC
governing the inclusion of financial statements (including pro forma financial
statements) in registration statements filed under the Securities Act and
periodic reports required to be filed pursuant to Section 13 of the
Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the SEC.


 


4

















 


“Global
Security” means a permanent Global Security that is in substantially
the form attached hereto as Exhibit A and that includes the text
and the schedule called for by footnotes 1 through 5 thereof and that is
deposited with the Depositary or its custodian and registered in the name of
the Depositary or its nominee.


 


“Holder”
means the Person in whose name a Security is registered on the Primary
Registrar’s books.


 


“Indenture”
means this Indenture as amended or supplemented from time to time pursuant to
the terms of this Indenture.


 


“Interest
Payment Date” means each May 1 and November 1 of each
year, beginning on May 1, 2011.


 


“Last
Reported Sale Price” of the Common Stock on any date means the
closing sale price per share (or if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) on that date as reported
in composite transactions for the principal U.S. national or regional
securities exchange on which the Common Stock is traded.  If the Common Stock is not listed for trading
on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall be the last quoted bid price
for the Common Stock in the over-the-counter market on the relevant date as
reported by Pink OTC Markets Inc. or a similar organization.  If the Common Stock is not so quoted, the “Last Reported Sale Price” shall be the average of the
mid-point of the last bid and ask prices for the Common Stock on the relevant
date from each of at least three nationally recognized independent investment
banking firms selected by the Company for this purpose.


 


“Legal
Holiday” is a Saturday, Sunday or a day on which state or federally
chartered banking institutions in New York, New York and the state in which the
Corporate Trust Office is located are not required to be open.


 


“Make-Whole
Fundamental Change” means any transaction or event that constitutes
a Fundamental Change (as defined above in clause (b) or (c) of the
definition thereof and determined after giving effect to any exceptions to or
exclusions from such definition, but without regard to the carve-out set forth
in subclause (ii) of clause (c) of the definition thereof).


 


“Market
Disruption Event” means (a) a failure by the primary United
States national or regional securities exchange or market on which the Common
Stock is listed or admitted for trading to open for trading during its regular trading
session or (b) the occurrence or existence prior to 1:00 p.m., New
York City time, on any Scheduled Trading Day for the Common Stock for more than
one half-hour period in the aggregate during regular trading hours of any
suspension or limitation imposed on trading (by reason of movements in price
exceeding limits permitted by the relevant stock exchange or otherwise) in the
Common Stock or in any options, contracts or future contracts relating to the
Common Stock.


 


“Maturity
Date” means November 1, 2017.


 


5














 


“Observation
Period” with respect to any Security surrendered for conversion
means: (a) if the relevant Conversion Date occurs prior to the 30th
Scheduled Trading Day immediately preceding the Maturity Date, the 25
consecutive Trading Day period beginning on, and including, the second Trading
Day after such Conversion Date; and (b) if the relevant Conversion Date
occurs on or after the 30th Scheduled Trading Day immediately preceding the
Maturity Date, the 25 consecutive Trading Days beginning on, and including, the
27th Scheduled Trading Day immediately preceding the Maturity Date.


 


“Officer”
means the Chairman of the Board, the Chief Executive Officer, the President,
any Vice President, the Chief Operating Officer, the Chief Financial Officer,
the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Assistant Secretary of the Company.


 


“Officers’
Certificate” means a certificate signed on behalf of the Company by
two Officers, at least one of whom shall be the principal executive officer,
principal financial officer or principal accounting officer of the Company,
that meets the requirements of Section 11.04.


 


“open of
business” means 9:00 a.m. (New York City time).


 


“Opinion of
Counsel” means a written opinion that meets the requirements of Section 11.04
from legal counsel. The counsel may be an employee of or counsel to the Company
or any Subsidiary of the Company.


 


“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.


 


“Principal”
or “principal” of a debt security,
including the Securities, means the principal of the security, plus, when
appropriate, the premium, if any, on such security.


 


“Record Date”
means, with respect to any dividend, distribution or other transaction or event
in which the holders of Common Stock (or other security) have the right to
receive any cash, securities or other property or in which the Common Stock (or
other applicable security) is exchanged for or converted into any combination
of cash, securities or other property, the date fixed for determination of
stockholders entitled to receive such cash, securities or other property
(whether such date is fixed by the Board of Directors, by statute, by contract
or otherwise).


 


“Regular
Record Date,” with respect to any Interest Payment Date, shall mean
the April 15 or October 15 (whether or not such day is a Business
Day) immediately preceding the applicable May 1 or November 1
Interest Payment Date, respectively.


 


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


 


6

















 


“Scheduled
Trading Day” means a day that is scheduled to be a Trading Day on
the principal U.S. national or regional securities exchange or market on which
the Common Stock is listed or admitted for trading.  If the Common Stock is not so listed or
admitted for trading, “Scheduled Trading Day”
means a Business Day.


 


“SEC”
means the U.S. Securities and Exchange Commission.


 


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


 


“Securities
Custodian” means the Trustee, as custodian for The Depositary Trust
Company, with respect to the Securities in global form, or any successor
thereto.


 


“Settlement
Method” means, with respect to any conversion of the Securities,
Physical Settlement, Cash Settlement or Combination Settlement, as elected (or
deemed to have been elected) by the Company.


 


“Significant
Subsidiary” means, in respect of any Person, a Subsidiary of such
Person that would constitute a “significant subsidiary”, as such term is
defined in Rule 1-02 of Regulation S-X under the Exchange Act.


 


“Subsidiary”
means, in respect of any Person, any corporation, association, partnership or
other business entity of which more than 50% of the total voting power of
shares of Capital Stock or other interests (including partnership interests)
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers, general partners or trustees thereof is at the
time owned or controlled, directly or indirectly, by (a) such Person; (b) such
Person and one or more Subsidiaries of such Person; or (c) one or more
Subsidiaries of such Person.


 


“TIA”
means the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder as in effect on the date of this Indenture, except as
provided in Section 10.03, and except to the extent any amendment to the
Trust Indenture Act expressly provides for application of the Trust Indenture
Act as in effect on another date.


 


“Trading Day”
means a day on which (a) trading in the Common Stock generally occurs on
The NASDAQ Global Select Market or, if the Common Stock is not then listed on
The NASDAQ Global Select Market, on the principal other U.S. national or
regional securities exchange on which the Common Stock is then listed or, if
the Common Stock is not then listed on a U.S. national or regional securities
exchange, on the principal other market on which the Common Stock is then
traded and (b) a Last Reported Sale Price for the Common Stock is
available on such securities exchange or market; provided
that if the Common Stock is not so listed or traded, “Trading Day”
means a Business Day; and provided, further, that for purposes of determining amounts due upon
conversion only, “Trading Day”
means a day on which (i) there is no Market Disruption Event and (ii) trading
in the Common Stock generally occurs on The NASDAQ Global Select Market or, if
the Common Stock is not then listed on The NASDAQ Global Select Market, on the
principal other U.S. national or regional securities exchange on which the
Common Stock is then listed or, if the Common Stock is not then listed on a
U.S. national or regional securities exchange, on the principal other market on
which the 


 


7

















 


Common Stock is then listed or
admitted for trading, except that if the Common Stock is not so listed or
admitted for trading, “Trading Day”
means a Business Day.


 


“Trading
Price” of the Securities on any date of determination means the
average of the secondary market bid quotations obtained by the Bid Solicitation
Agent for $5 million principal amount of Securities at approximately 3:30 p.m.,
New York City time, on such determination date from three independent
nationally recognized securities dealers the Company selects; provided that if three such bids cannot reasonably be
obtained by the Bid Solicitation Agent but two such bids are obtained, then the
average of the two bids shall be used, and if only one such bid can reasonably
be obtained by the Bid Solicitation Agent, that one bid shall be used. If the
Bid Solicitation Agent cannot reasonably obtain at least one bid for $5 million
principal amount of Securities from a nationally recognized securities dealer,
then the Trading Price per $1,000 principal amount of Securities shall be
deemed to be less than 98% of the product of the Last Reported Sale Price of
the Common Stock and the Conversion Rate. 
If (i) the Company is not acting as the Bid Solicitation Agent, and
the Company does not, when it is required to do so, instruct the Bid
Solicitation Agent to obtain bids, or if the Company gives such instruction to
the Bid Solicitation Agent and the Bid Solicitation Agent fails to make such
determination; or (ii) if the Company is acting as Bid Solicitation Agent
and it fails to make such determination, then, in either case, the Trading
Price per $1,000 principal amount of Securities will be deemed to be less than
98% of the product of the Last Reported Sale Price of Common Stock and the
Conversion Rate for each Trading Day on which such failure occurs.


 


“Trustee”
means the party named as such in the first paragraph of this Indenture until a
successor replaces it in accordance with the provisions of this Indenture, and
thereafter means the successor.


 


“Underwriters”
means Goldman, Sachs & Co., Morgan Stanley & Co. Incorporated
and [            ].


 


“Vice
President” when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title “vice president.”


 


Section 1.02.  Other Definitions.


 


	
  Term

  	
   

  	
  Where Defined

  
	
  “Additional
  Shares”

  	
   

  	
  4.04(a)

  
	
  “Agent
  Members”

  	
   

  	
  2.01(b)

  
	
  “Cash
  Settlement”

  	
   

  	
  4.02(a)

  
	
  “Clause A
  Distribution”

  	
   

  	
  4.05(c)

  
	
  “Clause B
  Distribution”

  	
   

  	
  4.05(c)

  
	
  “Clause C
  Distribution”

  	
   

  	
  4.05(c)

  
	
  “Combination
  Settlement”

  	
   

  	
  4.02(a)

  
	
  “Company
  Order” 

  	
   

  	
  2.02(c)

  
	
  “Conversion
  Agent”

  	
   

  	
  2.03

  
	
  “Conversion
  Date”

  	
   

  	
  4.02(c)

  
	
  “Conversion
  Notice”

  	
   

  	
  4.02(b)

  



 


8

















 


	
  “Conversion
  Obligation”

  	
   

  	
  4.01(a)

  
	
  “Conversion
  Rate”

  	
   

  	
  4.01(a)

  
	
  “Distributed
  Property”

  	
   

  	
  4.05(c)

  
	
  “DTC”

  	
   

  	
  2.01(b)

  
	
  “Depositary”

  	
   

  	
  2.01(b)

  
	
  “Effective
  Date”

  	
   

  	
  4.04(c)

  
	
  “Event of
  Default”

  	
   

  	
  7.01

  
	
  “Fundamental
  Change Repurchase Date”

  	
   

  	
  3.02(d)

  
	
  “Fundamental
  Change Repurchase Price” 

  	
   

  	
  3.02(a)

  
	
  “Fundamental
  Change Repurchase Right Notice”

  	
   

  	
  3.02(b)

  
	
  “Measurement
  Period”

  	
   

  	
  4.01(b)(ii)

  
	
  “Merger
  Event”

  	
   

  	
  4.07(a)

  
	
  “Moody’s”

  	
   

  	
  7.01(7)

  
	
  “Non-Separate
  Rights”

  	
   

  	
  4.09

  
	
  “Paying
  Agent”  

  	
   

  	
  2.03

  
	
  “Physical
  Settlement” 

  	
   

  	
  4.02(a)

  
	
  “Primary
  Registrar”  

  	
   

  	
  2.03

  
	
  “Reference
  Property”

  	
   

  	
  4.07(a)

  
	
  “Repurchase
  Exercise Notice”

  	
   

  	
  3.02(c)

  
	
  “Registrar”
  

  	
   

  	
  2.03

  
	
  “S&P”

  	
   

  	
  7.01(7)

  
	
  “Securities”

  	
   

  	
  Recitals

  
	
  “Settlement
  Amount”

  	
   

  	
  4.02(a)(ii)

  
	
  “Settlement
  Notice”

  	
   

  	
  4.02(a)(i)

  
	
  “Spin-Off”  

  	
   

  	
  4.05(c)

  
	
  “Stock
  Price”

  	
   

  	
  4.04(c)

  
	
  “Trigger
  Event” 

  	
   

  	
  4.05(c)

  
	
  “unit of
  Reference Property”

  	
   

  	
  4.07(a)

  
	
  “Underwriting
  Agreement”

  	
   

  	
  2.02(c)

  
	
  “Valuation
  Period”

  	
   

  	
  4.05(c)

  



 


Section 1.03.  Trust Indenture Act
Provisions.  Whenever this
Indenture refers to a provision of the TIA, that provision is incorporated by
reference in and made a part of this Indenture. The Indenture shall also
include those provisions of the TIA required to be included herein by the
provisions of the Trust Indenture Reform Act of 1990. The following TIA terms
used in this Indenture have the following meanings:


 


“indenture securities” means the
Securities;


 


“indenture security holder” means a
Holder;


 


“indenture to be qualified” means
this Indenture; and


 


“indenture trustee” or “institutional
trustee” means the Trustee; and “obligor” on the indenture securities means the
Company or any other obligor on the Securities.


 


9

















 


All other terms used in this
Indenture that are defined in the TIA, defined by TIA reference to another
statute or defined by any SEC rule and not otherwise defined herein have
the meanings assigned to them therein.


 


Section 1.04.  Rules of
Construction.  Unless the
context otherwise requires:


 


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


 


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


 


(c)        words in the singular include the
plural, and words in the plural include the singular;


 


(d)        provisions apply to successive events
and transactions;


 


(e)        the term “merger” includes a statutory
share exchange and the term “merged” has a correlative meaning;


 


(f)        the masculine gender includes the
feminine and the neuter;


 


(g)        references to agreements and other
instruments include subsequent amendments thereto; and


 


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


 


Section 1.05.  References to Additional
Interest.  Unless the context
otherwise requires, any reference to interest on, or in respect of, any
Security in this Indenture shall be deemed to include Additional Interest if,
in such context, Additional Interest is, was or would be payable pursuant to Section 7.04.
Unless the context otherwise requires, any express mention of Additional
Interest in any provision hereof shall not be construed as excluding Additional
Interest in those provisions hereof where such express mention is not made.


 


ARTICLE 2

THE SECURITIES


 


Section 2.01.  Form and Dating.  (a)  The Securities and the
Trustee’s certificate of authentication shall be substantially in the
respective forms set forth in Exhibit A, which Exhibit is
incorporated in and made part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
usage. The Company shall provide any such notations, legends or endorsements to
the Trustee in writing. Each Security shall be dated the date of its
authentication. The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture, and the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Security 


 


10

















 


conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.


 


(b)        All of the Securities shall be issued
initially in the form of one or more Global Securities, which shall be
deposited on behalf of the purchasers of the Securities represented thereby
with the Trustee, at its Corporate Trust Office, as custodian for the
depositary, The Depository Trust Company (“DTC”) (such
depositary, or any successor thereto, being hereinafter referred to as the “Depositary”), and registered in the name of its nominee,
Cede & Co., duly executed by the Company and authenticated by the
Trustee as hereinafter provided.


 


Each Global Security shall represent
such of the outstanding Securities as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding Securities
from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced or increased,
as appropriate, to reflect exchanges, purchases or conversions of such
Securities. Any adjustment of the aggregate principal amount of a Global
Security to reflect the amount of any increase or decrease in the amount of
outstanding Securities represented thereby shall be made by the Trustee in
accordance with instructions given by the Holder thereof as required by Section 2.12
and shall be made on the records of the Trustee and the Depositary.


 


Members of, or participants in, the
Depositary (“Agent Members”) shall have no
rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary or under the Global Security, and the Depositary
(including, for this purpose, its nominee) may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner and
Holder of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall (1) 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 (2) impair,
as between the Depositary and its Agent Members, the operation of customary
practices governing the exercise of the rights of a Holder of any Security.


 


(c)        The Company shall execute and the
Trustee shall, in accordance with this Section 2.01(c), authenticate and
deliver initially one or more Global Securities that (1) shall be
registered in the name of the Depositary, (2) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary’s instructions and (3) shall
bear a legend substantially to the following effect:


 


“UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY 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
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR 


 


11

















 


VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND UNLESS AND
UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE
FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.”


 


Section 2.02.  Execution and Authentication;
Payments of Interest and Defaulted Amounts. 
(a)  The Securities shall be issuable only in registered
form without coupons and only in denominations of $1,000 principal amount and
any integral multiple thereof.  An
Officer shall sign the Securities for the Company by manual or facsimile
signature attested by the manual or facsimile signature of the Secretary or an
Assistant Secretary of the Company. Typographic and other minor errors or
defects in any such facsimile signature shall not affect the validity or
enforceability of any Security which has been authenticated and delivered by
the Trustee. If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.  A Security
shall not be valid until an authorized signatory of the Trustee manually signs
the certificate of authentication on the Security. The signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.


 


(b)        The Trustee shall act as the initial
authenticating agent. Thereafter, the Trustee may appoint an authenticating
agent acceptable to the Company to authenticate Securities. An authenticating
agent may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent shall have the same
rights as an Agent to deal with the Company or an Affiliate of the Company.


 


(c)        The Trustee shall authenticate and make
available for delivery Securities for original issue in the aggregate principal
amount of up to
$[                  ]
[(or such greater amount necessary to reflect the exercise by the Underwriters
of their option to purchase additional Securities in compliance with the
Underwriting Agreement, dated October [    ], 2010,
among the Company and the Underwriters (the “Underwriting
Agreement”) but not to exceed
$[                  ]
in aggregate principal amount)] upon receipt of a written order or orders of
the Company signed by two Officers, at least one of whom shall be the principal
executive officer, principal financial officer or principal accounting officer
of the Company (a “Company Order”).
The Company Order shall specify the amount of Securities to be authenticated,
shall provide that all such Securities will be represented by a Global Security
and the date on which 


 


12

















 


each
original issue of Securities is to be authenticated. The Company at any time or
from time to time may, without the consent of the Holders, issue additional
Securities under this Indenture having the same ranking, interest rate,
maturity and other terms and with the same CUSIP as the Securities initially
issued hereunder in an unlimited aggregate principal amount, and entitled to
all of the benefits of this Indenture; provided that
such additional Securities must be part of the same issue as the Securities
initially hereunder for U.S. federal income tax purposes. Such additional
Securities shall, together with the Securities initially issued hereunder,
constitute a single series of Securities under this Indenture, including
without limitation in determining the necessary Holders who may take the
actions or consent to the taking of actions as specified in this Indenture.


 


(d)        Accrued interest on the Securities shall
be computed on the basis of a 360-day year composed of twelve 30-day
months.  The Person in whose name any
Security (or its predecessor) is registered on register of the Primary
Registrar at the close of business on any Regular Record Date with respect to
any Interest Payment Date shall be entitled to receive the interest payable on
such Interest Payment Date.  Interest shall
be payable at the office or agency of the Company maintained by the Company for
such purposes, which shall initially be the Corporate Trust Office.  The Company shall pay interest (i) on
any Certificated Securities (A) to Holders having an aggregate principal
amount of $2,000,000 or less, by check mailed to the Holders of these
Securities at their address as it appears in the register of the Primary
Registrar and (B) to Holders having an aggregate principal amount of more
than $2,000,000, either by check mailed to the Holders of these Securities or
upon application by a Holder to the Primary Registrar not later than the
relevant Regular Record Date, by wire transfer in immediately available funds
to that Holder’s account within the United States, which application shall
remain in effect until the Holder notifies, in writing, the Primary Registrar
to the contrary or (ii) on any Global Security by wire transfer of
immediately available funds to the account of the Depositary or its nominee.


 


(e)        Any Defaulted Amounts shall forthwith
cease to be payable to the Holder on the relevant payment date by virtue of its
having been such Holder but shall accrue interest per annum at the rate borne
by the Securities plus one percent, subject to the
enforceability thereof under applicable law, from, and including, such relevant
payment date to, but excluding, the date on which such Defaulted Amounts shall
have been paid by the Company, at its election in each case, as provided in
subsection (i) or (ii) below:


 


(i)           The Company may elect to make payment
of any Defaulted Amounts to the Persons in whose names the Securities (or their
respective predecessor Securities) are registered at the close of business on a
special record date for the payment of such Defaulted Amounts, which shall be
fixed in the following manner.  The
Company shall notify the Trustee in writing of the amount of the Defaulted
Amounts proposed to be paid on each Security and the date of the proposed
payment (which shall be not less than 25 days after the receipt by the Trustee
of such notice, unless the Trustee shall consent to an earlier date), and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount to be paid in respect of such Defaulted Amounts or
shall make arrangements satisfactory to the Trustee for such deposit on or
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Amounts as
in this clause provided.  Thereupon the
Company shall fix a special record date for the payment of such Defaulted 


 


13

















 


Amounts
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment, and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment.  The Company shall promptly notify the Trustee
of such special record date and the Trustee, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Amounts and the special record date therefor to be mailed, first-class postage
prepaid, to each Holder at its address as it appears in the register of the
Primary Registrar, not less than 10 days prior to such special record
date.  Notice of the proposed payment of
such Defaulted Amounts and the special record date therefor having been so
mailed, such Defaulted Amounts shall be paid to the Persons in whose names the
Securities (or their respective predecessor Securities) are registered at the
close of business on such special record date and shall no longer be payable
pursuant to the following subsection (ii) of this Section 2.02(e).


 


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


 


Section 2.03.  Registrar, Paying Agent and
Conversion Agent.  The Company
shall maintain one or more offices or agencies where Securities may be
presented for registration of transfer or for exchange (each, a “Registrar”), one or more offices or agencies where
Securities may be presented for payment (each, a “Paying Agent”),
one or more offices or agencies where Securities may be presented for
conversion (each, a “Conversion Agent”)
and one or more offices or agencies where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will at all times maintain a Paying Agent, Conversion Agent, Registrar
and an office or agency where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served in the Borough of
Manhattan, The City of New York. One of the Registrars (the “Primary Registrar”) shall keep a register of the Securities
and of their registration of transfer and exchange. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency.


 


The Company shall enter into an
appropriate agency agreement with any Agent not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the name
and address of any Agent not a party to this Indenture. If the Company fails to
maintain a Registrar, Paying Agent, Conversion Agent or agent for service of
notices and demands in any place required by this Indenture, or fails to give
the foregoing notice, the Trustee shall act as such. The Company or any
Affiliate of the Company may act as Paying Agent (except for the purposes of Section 5.01
and Article 9).


 


The Company hereby initially
designates the Trustee as Paying Agent, Primary Registrar, Securities Custodian
and Conversion Agent and each of the Corporate Trust Office of the 


 


14

















 


Trustee and the office or agency of
the Trustee in the Borough of Manhattan, The City of New York, as an office or
agency of the Company for each of the aforesaid purposes.


 


Section 2.04.  Paying Agent to Hold Money in
Trust.  Prior to 11:00 a.m.,
New York City time, on each due date of the principal of or interest on any
Securities, the Company shall deposit with a Paying Agent a sum sufficient to
pay such principal or interest so becoming due. A Paying Agent shall hold in
trust for the benefit of Holders or the Trustee all money held by the Paying
Agent for the payment of principal of or interest on the Securities, and shall
notify the Trustee of any default by the Company (or any other obligor on the
Securities) in making any such payment. If the Company or an Affiliate of the
Company acts as Paying Agent, it shall, before 11:00 a.m., New York City
time, on each due date of the principal of or interest on any Securities,
segregate the money and hold it as a separate trust fund for the benefit of the
Holders. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee, and the Trustee may at any time during the
continuance of any default, upon written request to a Paying Agent, require
such Paying Agent to pay forthwith to the Trustee all sums so held in trust by
such Paying Agent. Upon doing so, the Paying Agent (other than the Company)
shall have no further liability for the money.


 


Section 2.05.  Holder.  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 the Trustee shall otherwise
comply with TIA Section 312(a). If the Trustee is not the Primary
Registrar, the Company shall furnish to the Trustee at least seven Business
Days before each semiannual interest payment date, and at such other times as
the Trustee may request in writing, a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of Holders, and
the Company shall otherwise comply with TIA Section 312(a).


 


Section 2.06.  Transfer and Exchange.  (a)  Subject to compliance
with any applicable additional requirements contained in Section 2.12,
when a Security is presented to a Registrar with a request to register a
transfer thereof or to exchange such Security for an equal principal amount of
Securities of other authorized denominations, the Registrar shall register the
transfer or make the exchange as requested; provided, however, that every Security presented or surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by an
assignment form and, if applicable, a transfer certificate each in the form
included in Exhibit A, and in form satisfactory to the Registrar
duly executed by the Holder thereof or its attorney duly authorized in writing.
To permit registration of transfers and exchanges, upon surrender of any
Security for registration of transfer or exchange at an office or agency
maintained pursuant to Section 2.03, the Company shall execute and the
Trustee shall authenticate Securities of a like aggregate principal amount at
the Registrar’s request. Any exchange or registration of transfer shall be
without charge, except that the Company or the Registrar may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto, and provided, that this sentence shall not apply
to any exchange pursuant to Section 2.07, Section 2.10, Section 3.06,
Section 4.02(d) or Section 10.05.


 


Neither the Company, any Registrar
nor the Trustee shall be required to exchange or register a transfer of any
Securities or portions thereof in respect of which a Repurchase Exercise Notice
pursuant to Section 3.02(c) has been delivered and not withdrawn by
the Holder thereof (except, in the case of the purchase of a Security in part,
the portion thereof not to be purchased).


 


15






 










 


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


 


(b)        Any Registrar appointed pursuant to Section 2.03
shall provide to the Trustee such information as the Trustee may reasonably
require in connection with the delivery by such Registrar of Securities upon
transfer or exchange of Securities.


 


(c)        Each Holder agrees to indemnify the
Company, each Registrar and the Trustee against any liability that may result
from the registration of transfer, exchange or assignment of such Holder’s
Security in violation of any provision of this Indenture and/or applicable United
States federal or state securities law.


 


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


 


Section 2.07.  Replacement Securities.  If any mutilated Security is
surrendered to the Company, a Registrar or the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Security,
and there is delivered to the Company, the applicable Registrar and the Trustee
such security or indemnity as will be required by them to save each of them
harmless, then, in the absence of notice to the Company, such Registrar or the
Trustee that such Security has been acquired by a protected purchaser, the
Company shall execute, and upon its written request the Trustee shall
authenticate and deliver, in exchange for any such mutilated Security or in
lieu of any such destroyed, lost or stolen Security, a new Security of like
tenor and principal amount, bearing a number not contemporaneously outstanding.


 


In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and
payable, or is about to be repurchased by the Company pursuant to Article 3,
the Company in its discretion may, instead of issuing a new Security, pay or
repurchase such Security, as the case may be.


 


Upon the issuance of any new
Securities under this Section 2.07, 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 reasonable expenses (including the
reasonable fees and expenses of the Trustee or the Registrar) in connection
therewith.


 


Every new Security issued pursuant
to this Section 2.07 in lieu of any mutilated, destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Security shall
be at any time enforceable by anyone, and shall be entitled to all benefits of
this Indenture equally and proportionately with any and all other Securities
duly issued hereunder.


 


16

















 


The provisions of this Section 2.07
are (to the extent lawful) exclusive and shall preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.


 


Section 2.08.  Outstanding Securities.  Securities outstanding at any time
are all Securities authenticated by the Trustee, except for those canceled by
it, those converted pursuant to Article 4, those delivered to it for
cancellation or surrendered for transfer or exchange and those described in
this Section 2.08 as not outstanding.


 


If a Security is replaced pursuant
to Section 2.07, it ceases to be outstanding unless the Trustee receives
proof satisfactory to it that the replaced Security is held by a protected
purchaser.


 


If a Paying Agent (other than the
Company or an Affiliate of the Company) holds on the Maturity Date money
sufficient to pay the principal of and accrued interest on Securities (or
portions thereof) payable on that date, then on and after such Maturity Date
such Securities (or portions thereof, as the case may be) shall cease to be
outstanding and interest on them shall cease to accrue.


 


Subject to the restrictions
contained in Section 2.09, a Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.


 


Section 2.09.  Treasury Securities.  In determining whether the Holders
of the required principal amount of Securities have concurred in any notice,
direction, waiver or consent, Securities owned by the Company or any other
obligor on the Securities or by any Affiliate of the Company or of such other
obligor shall be disregarded, except that, for purposes of determining whether
the Trustee shall be protected in relying on any such notice, direction, waiver
or consent, only Securities that a Responsible Officer of the Trustee actually
knows are so owned shall be so disregarded. Securities so owned that have been
pledged in good faith shall not be disregarded if the pledgee establishes to
the satisfaction of the Trustee the pledgee’s right so to act with respect to
the Securities and that the pledgee is not the Company or any other obligor on
the Securities or any Affiliate of the Company or of such other obligor.


 


Section 2.10.  Temporary Securities.  Until definitive Securities are
ready for delivery, the Company may prepare and execute, and, upon receipt of a
Company Order, the Trustee shall authenticate and deliver, temporary
Securities. Temporary Securities shall be substantially in the form of
Certificated Securities but may have variations that the Company considers
appropriate for temporary Securities and as shall be reasonably acceptable to
the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee, upon receipt of a Company Order, shall authenticate and deliver
definitive Securities in exchange for temporary Securities. Holders of temporary
Securities shall be entitled to all the benefits of this Indenture.


 


Section 2.11.  Cancellation; Repurchase.  The Company shall cause all
Securities surrendered for the purpose of payment, repurchase, registration of
transfer or exchange or conversion, if surrendered to any Person other than the
Trustee (including any of the Company’s Agents, Subsidiaries or Affiliates), to
be delivered to the Trustee for cancellation. 
The Registrar, the Paying Agent and the Conversion Agent shall forward
to the Trustee or its agent any


 


17

















 


Securities surrendered to them for
registration of transfer, exchange, redemption, payment or conversion. The
Trustee and no one else shall promptly cancel, in accordance with its standard
procedures, all Securities surrendered for the purpose of payment, repurchase,
registration of transfer or exchange or conversion or cancellation and shall
dispose of canceled Securities (subject to the record retention requirements of
the Exchange Act), in accordance with its standard procedures, and no
Securities shall be authenticated in exchange thereof except as expressly
permitted by any of the provisions of this Indenture. The Company may not hold
or resell such Securities or issue new Securities to replace Securities that it
has purchased or otherwise acquired or that have been delivered to the Trustee
for cancellation.


 


The Company may, to the extent
permitted by law, and directly or indirectly (regardless of whether such
Securities are surrendered to the Company), repurchase Securities in the open
market, by tender offer or exchange offer, by private agreement through
counterparties or otherwise, whether by the Company or its Subsidiaries,
including by cash-settled swaps or other derivatives and, in each case, at any
price.  The Company shall cause any
Securities so purchased (other than Securities repurchased pursuant to
cash-settled swaps or other derivatives) to be surrendered to the Trustee for cancellation
in accordance with this Section 2.11, and they shall no longer be
considered outstanding under this Indenture upon their repurchase.  Any Securities held by the Company or one of
its Subsidiaries shall be disregarded for voting purposes in connection with
any notice, waiver, consent or direction requiring the vote or concurrence of
Holders.


 


Section 2.12.  Additional Transfer and
Exchange Requirements.  (a) 
A Global Security may not be transferred, in whole or in part, to any Person
other than the Depositary or a nominee or any successor thereof, and no such
transfer to any such other Person may be registered; provided
that the foregoing shall not prohibit any transfer of a Security that is issued
in exchange for a Global Security but is not itself a Global Security. No
transfer of a Security to any Person shall be effective under this Indenture or
the Securities unless and until such Security has been registered in the name
of such Person. Notwithstanding any other provisions of this Indenture or the
Securities, transfers of a Global Security, in whole or in part, shall be made
only in accordance with this Section 2.12.


 


(b)        The provisions of subsections (i), (ii),
(iii) and (iv) below shall apply only to Global Securities:


 


(i)            Notwithstanding any other provisions
of this Indenture or the Securities, a Global Security shall not be exchanged
in whole or in part for a Security registered in the name of any Person other
than the Depositary or one or more nominees thereof; provided
that a Global Security may be exchanged for Certificated Securities registered
in the names of any Person designated by the Depositary in the event that (A) the
Depositary has notified the Company that it is unwilling or unable to continue
as Depositary for such Global Security or the Depositary has ceased to be a “clearing
agency” registered under the Exchange Act, and a successor Depositary is not
appointed by the Company within 90 days or (B) an Event of Default has
occurred and is continuing and a beneficial owner requests that its Securities
be exchanged for Certificated Securities. Any Global Security exchanged
pursuant to clauses (A) above shall be so exchanged in whole and not in
part, and any Global Security exchanged pursuant to clause (B) above may
be exchanged in


 


18

















 


whole
or from time to time in part as directed by the Depositary. Any Security issued
in exchange for a Global Security or any portion thereof shall be a Global
Security; provided that any such Security so
issued that is registered in the name of a Person other than the Depositary or
a nominee thereof shall not be a Global Security.


 


(ii)           Securities issued in exchange for a
Global Security or any portion thereof shall be issued in definitive,
fully-registered book-entry form, without interest coupons, shall have an
aggregate principal amount equal to that of such Global Security or portion
thereof to be so exchanged, shall be registered in such names and be in such
authorized denominations as the Depositary shall designate and shall bear any applicable
legend provided for herein. Any Global Security to be exchanged in whole shall
be surrendered by the Depositary to the Trustee, as Registrar. With regard to
any Global Security to be exchanged in part, either such Global Security shall
be so surrendered for exchange or, if the Trustee is acting as Securities
Custodian for the Depositary or its nominee with respect to such Global
Security, the principal amount thereof shall be reduced, by an amount equal to
the portion thereof to be so exchanged, by means of an appropriate adjustment
made on the records of the Trustee. Upon any such surrender or adjustment, the
Trustee shall authenticate and deliver the Security issuable on such exchange
to or upon the order of the Depositary or an authorized representative thereof;
provided, however,
that any Global Security surrendered for exchange shall be duly endorsed or
accompanied by a written instrument of transfer in accordance with the proviso
to the first paragraph of Section 2.06(a).


 


(iii)          Subject to the provisions of
subsection (v) below, the registered Holder may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.


 


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


 


(v)           Neither Agent Members nor any other
Persons on whose behalf Agent Members may act shall have any rights under this
Indenture with respect to any Global Security registered in the name of the
Depositary or any nominee thereof, or under any such Global Security, and the
Depositary or such nominee, as the case may be, may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner
and holder of such Global Security for all purposes whatsoever. Notwithstanding
the foregoing, nothing 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 such
nominee, as the case may be, or impair, as between the Depositary, its Agent
Members and any other Person on whose behalf an Agent Member may act, the
operation of customary practices of such Persons governing the exercise of the
rights of a holder of any Security.


 


(c)        In the event that Certificated
Securities are issued in exchange for beneficial interests in Global Securities
and, thereafter, the events or conditions specified in Section


 


19

















 


2.12(b)(i) that
required such exchange shall cease to exist, the Company shall deliver notice
to the Trustee and to the Holders stating that Holders may exchange
Certificated Securities for interests in Global Securities by complying with
the procedures set forth in this Indenture and briefly describing such
procedures and the events or circumstances requiring that such notice be given.
Thereafter, if Certificated Securities are presented by a Holder to a Registrar
with a request:


 


(i)            to register the transfer of such
Certificated Securities to a Person who will take delivery thereof in the form
of a beneficial interest in a Global Security; or


 


(ii)           to exchange such Certificated
Securities for an equal principal amount of beneficial interests in a Global
Security, which beneficial interests will be owned by the Holder transferring
such Certificated Securities, the Registrar shall register the transfer or make
the exchange as requested by canceling such Certificated Securities and
causing, or directing the Securities Custodian to cause, the aggregate
principal amount of the applicable Global Security to be increased accordingly
and, if no such Global Security is then outstanding, the Company shall issue
and the Trustee, upon receipt of a Company Order, shall authenticate and
deliver a new Global Security; provided, however, that the Certificated Securities presented or
surrendered for registration of transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in accordance with the proviso to the first paragraph of Section 2.06(a).


 


Section 2.13.  CUSIP Numbers.  The Company in issuing the
Securities may use one or more “CUSIP” numbers (if then generally in use), and,
if so, the Trustee shall use “CUSIP” numbers in notices as a convenience to
Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice and that reliance may
be placed only on the other identification numbers printed on the Securities,
and any such notice or related action by the Company contemplated thereby shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the “CUSIP” numbers.


 


ARTICLE 3

NO REDEMPTION; REPURCHASE UPON A FUNDAMENTAL CHANGE


 


Section 3.01.  No Optional Redemption.  The Company shall not have the
option to redeem the Securities prior to the Maturity Date.  No sinking fund is provided for the
Securities.


 


Section 3.02.  Repurchase At Option of The
Holder Upon A Fundamental Change.  (a) 
Subject to the satisfaction of the requirements of this Article 3, if a
Fundamental Change occurs at any time prior to the Maturity Date, each Holder
shall have the right to require the Company to repurchase for cash their
Securities, or any portion of the principal amount thereof that is equal to
$1,000 or an integral multiple of $1,000 at a repurchase price (the “Fundamental Change Repurchase Price”) equal to 100% of the
principal amount of the Securities to be repurchased plus accrued and unpaid
interest, if any, to, but excluding, 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


 


20

















 


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 such Regular Record Date and the
Fundamental Change Repurchase Price shall be equal to 100% of the principal
amount of the Securities to be repurchased). 
The Company shall provide to the Holders of the Securities, the Trustee,
the Paying Agent and the Conversion Agent (if other than the Trustee) a notice (i) at
least 35 Scheduled Trading Days prior to the anticipated effective date of a
Fundamental Change or (ii) if the Company does not have knowledge of a
Fundamental Change at least 35 Scheduled Trading Days prior to the anticipated
effective date of such transaction, within two Business Days of the earlier of (x) the
date upon which the Company receives, or otherwise becomes aware, of the
anticipated effective date of such Fundamental Change and (y) the actual
effective date of such Fundamental Change.


 


(b)        In addition to the notice required
pursuant to Section 3.02(a), on or before the 15th Business Day after the
date on which a Fundamental Change becomes effective, the Company shall provide
to all Holders of the Securities, the Trustee and the Conversion Agent (if
other than the Trustee) a notice of the occurrence of the Fundamental Change
and of the resulting repurchase right (the “Fundamental
Change Repurchase Right Notice”). The Fundamental Change Repurchase
Right Notice shall state:


 


(i)            the event or events giving rise to
the Fundamental Change;


 


(ii)           if the Fundamental Change also
constitutes a Make-Whole Fundamental Change;


 


(iii)          the Conversion Rate and any
adjustments to the Conversion Rate;


 


(iv)          the effective date of the Fundamental
Change;


 


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


 


(vi)          the Fundamental Change Repurchase
Price;


 


(vii)         the Fundamental Change Repurchase Date;


 


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


 


(ix)           that the Securities with respect to
which a Repurchase Exercise Notice has been given by the Holder may be
converted only if the Holder withdraws the Repurchase Exercise Notice as
described in Section 3.02(d); and


 


(x)            the procedures that Holders must
follow to require the Company to repurchase their Securities and to withdraw
any Repurchase Exercise Notice.


 


Simultaneously with providing the
Fundamental Change Repurchase Right Notice, the Company shall issue a press release
and publish the information through a public medium customary for such press
releases.


 


21

















 


(c)        To exercise the repurchase right in
connection with a Fundamental Change, a Holder must deliver, prior to the close
of business, on the second Business Day immediately preceding the Fundamental
Change Repurchase Date, the Securities to be purchased to the Paying Agent,
duly endorsed for transfer, or effect book-entry transfer of the Securities to
the Paying Agent, together with a written notice exercising its right to
require the Company to repurchase its Securities or a portion thereof (a “Repurchase Exercise Notice”), substantially in the form
included in Exhibit A hereto, duly completed, to the Paying Agent. The
Repurchase Exercise Notice must state:


 


(i)            if the Securities are Certificated
Securities, the certificate numbers of the Securities to be delivered for
repurchase;


 


(ii)           the portion of the principal amount
of the Securities to be repurchased, which must be equal to $1,000 or an
integral multiple thereof; and


 


(iii)          that the Securities are to be
repurchased by the Company as of the Fundamental Change Repurchase Date
pursuant to the applicable
provisions of the Securities and this Indenture.


 


If the Securities are Global
Securities, the Repurchase Exercise Notice must comply with the Applicable
Procedures.


 


A Holder may withdraw any Repurchase
Exercise Notice (in whole or in part) by a written notice of withdrawal
delivered to the Paying Agent prior to the close of business on the second
Business Day prior to the Fundamental Change Repurchase Date. The notice of
withdrawal must state:


 


(i)            the principal amount of the
Securities for which the Repurchase Exercise Notice has been withdrawn;


 


(ii)           if Certificated Securities have been
issued, the certificate numbers of the withdrawn Securities; and


 


(iii)          the principal amount, if any, that
remains subject to the Repurchase Exercise Notice.


 


If the Securities are Global
Securities, the withdrawal notice must comply with the Applicable Procedures.


 


(d)        The Company must repurchase on a date
(the “Fundamental Change Repurchase Date”)
chosen by the Company that is no less than 20 and no more than 35 Business Days
after the date of the Fundamental Change Repurchase Right Notice with respect
to the occurrence of the relevant Fundamental Change, subject to extension to
comply with applicable law. To receive payment of the Fundamental Change
Repurchase Price, a Holder must either effect book-entry transfer or deliver
the Securities, together with necessary endorsements, to the office of the
Paying Agent after delivery of the Repurchase Exercise Notice. Holders shall
receive payment of the Fundamental Change Repurchase Price on the later of (i) the
Fundamental Change Repurchase Date and (ii) the time of book-entry
transfer or the delivery of the Securities. If the


 


22

















 


Paying
Agent holds money sufficient to pay the Fundamental Change Repurchase Price of
the Securities on the Fundamental Change Repurchase Date, then:


 


(i)            the Securities will cease to be
outstanding and interest, if any, will cease to accrue (whether or not
book-entry transfer of the Securities is made or whether or not the Securities
are delivered to the Paying Agent); and


 


(ii)           all other rights of the Holder will
terminate (other than the right to receive the Fundamental Change Repurchase
Price upon delivery or transfer of the Securities).


 


Section 3.03.  Compliance With Securities
Laws Upon Purchase of Securities.  (a) 
In connection with any offer to purchase the Securities under Section 3.02,
the Company shall comply with all tender offer rules applicable to the
Company under the Exchange Act. The Company shall (a) comply with the
provisions of Rule 13e-4 and Rule 14e-l (or any successor to either
such Rule), if applicable, under the Exchange Act, (b) file a Schedule TO
(or any successor or similar schedule, form or report), if required, under the
Exchange Act and (c) otherwise comply with all federal and state securities
laws in connection with such offer by the Company to purchase the Securities
upon a Fundamental Change, so as to permit the rights of the Holders and
obligations of the Company under Section 3.02 to be exercised in the time
and in the manner specified therein. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section 3.03,
the Company, shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached its obligations under this Section 3.03
by virtue of such conflict.


 


Section 3.04.  No Repurchase Upon
Acceleration.  No Securities
may be repurchased on any date at the option of Holders upon a Fundamental
Change if the principal amount of the Securities has been accelerated, and such
acceleration has not been rescinded, on or prior to such date (except in the
case of an acceleration resulting from a Default by the Company in the payment
of the Fundamental Change Repurchase Price with respect to such Securities).
The Paying Agent will promptly return to the respective Holders thereof any
Certificated Securities held by it during the acceleration of the Securities
(except in the case of an acceleration resulting from a Default by the Company
in the payment of the Fundamental Change Repurchase Price with respect to such
Securities), or any instructions for book-entry transfer of the Securities in
compliance with the procedures of the Depositary shall be deemed to have been
cancelled, and, upon such return or cancellation, as the case may be, the
Fundamental Change Repurchase Notice with respect thereto shall be deemed to
have been withdrawn.


 


Section 3.05.  Repayment to the Company.  To the extent that the aggregate
amount of cash deposited by the Company pursuant to Section 3.02 exceeds
the aggregate Fundamental Change Repurchase Price of the Securities or portions
thereof that the Company is obligated to purchase, then promptly after the
Fundamental Change Repurchase Date, the Trustee or a Paying Agent, as the case
may be, shall return any such excess cash to the Company.


 


Section 3.06.  Partial Repurchase.  Upon surrender of a Security that is to be
repurchased in part pursuant to Section 3.02, the Company shall execute
and the Trustee shall authenticate and deliver to the Holder a new Security in
an authorized denomination equal in principal amount to the unrepurchased
portion of the Security surrendered.


 


23

















 


ARTICLE 4

CONVERSION


 


Section 4.01.  Conversion Rights.  (a)  Subject to and upon
compliance with the provisions of this Article 4, each Holder of a
Security shall have the right, at such Holder’s option, to convert all or any
portion (if the portion to be converted is $1,000 principal amount or an
integral multiple thereof) of such Security (i) subject to satisfaction of
one or more of the conditions described in subsection (b) of this Section 4.01,
at any time prior to the close of business on the Business Day immediately
preceding the May 1, 2017 under the circumstances and during the periods
set forth in subsection (b) of this Section 4.01, and (ii) irrespective
of the conditions set forth in subsection (b) of this Section 4.01,
on or after May 1, 2017 and prior to the close of business on the Business
Day immediately preceding the Maturity Date, in each case at an initial
conversion rate of
[          ] shares of Common
Stock (subject to adjustment as provided in Section 4.05, the “Conversion Rate”) per $1,000 principal amount of Securities
(subject to the settlement provisions of Section 4.02, the “Conversion Obligation”).


 


(b)        (i)  Prior to the close of business
on the Business Day immediately preceding May 1, 2017, a Holder may
surrender all or a portion of its Securities for conversion during any calendar
quarter commencing after the calendar quarter ending on March 13, 2011
(and only during such calendar quarter), if the Last Reported Sale Price of the
Common Stock for at least 20 Trading Days (whether or not consecutive) during
the period of 30 consecutive Trading Days ending on the last Trading Day of the
immediately preceding calendar quarter is greater than or equal to 130% of the
Conversion Price on each applicable Trading Day.


 


(ii)           Prior to the close of business on the
Business Day immediately preceding May 1, 2017, a Holder of the Securities
may surrender its Securities for conversion during the five Business Day period
after any five consecutive Trading Day period (the “Measurement
Period”) in which the Trading Price per $1,000 principal amount of
the Securities, as determined following a request by a Holder of the Securities
in accordance with the procedures described below, for each Trading Day of the
Measurement Period was less than 98% of the product of the Last Reported Sale
Price of Common Stock and the Conversion Rate on each such Trading Day. The Bid
Solicitation Agent (if other than the Company) shall have no obligation to
determine the Trading Price of the Securities unless the Company has requested
such determination; and the Company shall have no obligation to make such
request (or, if the Company is acting as Bid Solicitation Agent, it shall have
no obligation to determine the Trading Price) unless a Holder of the Securities
requests in writing that the Company make such a determination and provides the
Company with reasonable evidence that the Trading Price per $1,000 principal
amount of the Securities would be less than 98% of the product of the Last
Reported Sale Price of Common Stock and the Conversion Rate.  At such time, the Company shall instruct the
Bid Solicitation Agent (if other than the Company) to determine, or if the
Company is acting as Bid Solicitation Agent, the Company shall determine, the
Trading Price per $1,000 principal amount of Securities beginning on the next Trading
Day and on each successive Trading Day until the Trading Price per $1,000
principal amount of Securities is greater than or equal to 98% of the product
of the Last Reported Sale Price of Common Stock and the Conversion Rate.  If the trading price condition has been met,
the Company shall notify the Holders, the Trustee and the Conversion Agent (if
other than the Trustee).


 


24

















 


If,
at any time after the trading price condition has been met, the Trading Price
per $1,000 principal amount of Securities is greater than or equal to 98% of
the product of the Last Reported Sale Price of Common Stock and the Conversion
Rate for such date, the Company will notify the Holders, the Trustee and the
Conversion Agent (if other than the Trustee).


 


(iii)          If, prior to the close of business on
the Business Day immediately preceding May 1, 2017, the Company elects to:


 


(A)             issue to all or substantially all
holders of Common Stock any rights, options or warrants entitling them, for a
period of not more than 60 calendar days after the announcement date of such
issuance, to subscribe for or purchase shares of Common Stock at a price per
share that is less than the average of the Last Reported Sale Prices of the
Common Stock for the five consecutive Trading Day period ending on, and
including, the Trading Day immediately preceding the date of announcement of
such issuance; or


 


(B)              distribute to all or substantially
all holders of Common Stock, the Company’s assets, debt securities or rights to
purchase the Company’s Securities, which distribution has a per share value, as
reasonably determined by the Board of Directors, exceeding 10% of the Last
Reported Sale Price of the Common Stock on the Trading Day preceding the date
of announcement of such distribution,


 


then, in either case, the Company
shall notify the Holders of the Securities at least 35 Scheduled Trading Days
prior to the Ex-Dividend Date for such issuance or distribution.  Once the Company has given such notice,
Holders may surrender their Securities for conversion at any time until the
earlier of the close of business on the Business Day immediately preceding the
Ex-Dividend Date for such issuance or distribution and the Company’s
announcement that such issuance or distribution will not take place, even if
the Securities are not otherwise convertible at such time.


 


(iv)          If a transaction or event that
constitutes a Fundamental Change or Make-Whole Fundamental Change occurs prior
to the close of business on the Business Day immediately preceding May 1,
2017, regardless of whether a Holder of the Securities has the right to require
the Company to repurchase the Securities pursuant to Section 3.02, or if
the Company is a party to a consolidation, merger, binding share exchange, or
transfer or lease of all or substantially all of the Company’s assets, pursuant
to which Common Stock would be converted into cash, securities or other assets,
the Securities may be surrendered for conversion at any time from or after the
date that is 35 Scheduled Trading Days prior to the anticipated effective date
of the transaction (or, if later, the Business Day after the Company gives
notice of such transaction) until 35 Trading Days after the actual effective
date of such transaction or, if such transaction also constitutes a Fundamental
Change, until the related Fundamental Change Repurchase Date.  The Company shall notify the Holders, the
Trustee and the Conversion Agent (if other than the Trustee) (i) as
promptly as practicable following the date the Company publicly announces such
transaction but in no event less than 35 Scheduled Trading Days prior to


 


25

















 


the
anticipated effective date of such transaction; or (ii) if the Company
does not have knowledge of such transaction at least 35 Scheduled Trading Days
prior to the anticipated effective date of such transaction, then within two
Business Days of the earlier of (x) the date upon which the Company
receives notice, or otherwise becomes aware, the anticipated effective date of
such transaction and (y) the actual effective date of such transaction.


 


Section 4.02.  Settlement Upon Conversion;
Conversion Procedures.  (a) 
Subject to this Section 4.02, Section 4.04 and Section 4.07,
upon conversion of any Security, the Company shall pay or deliver, as the case
may be, to the converting Holder, in respect of each $1,000 principal amount of
Securities being converted cash (“Cash Settlement”),
shares of Common Stock, together with cash, if applicable, in lieu of any
fractional share of Common Stock in accordance with subsection (i) of this
Section 4.02 (“Physical Settlement”)
or a combination of cash and shares of Common Stock, together with cash, if
applicable, in lieu of any fractional share of Common Stock in accordance with
subsection (i) of this Section 4.02 (“Combination
Settlement”), at its election, as set forth in this Section 4.02.


 


(i)            All conversions occurring on or
after May 1, 2017 shall be settled using the same Settlement Method.  Prior to May 1, 2017, the Company shall
use the same Settlement Method for all conversions occurring on the same
Conversion Date, but the Company shall not have any obligation to use the same
Settlement Method with respect to conversions that occur on different Trading
Days.  If, in respect of any Conversion
Date (or the period beginning on, but excluding, May 1, 2017 and ending
on, and including, the Business Day immediately preceding the Maturity Date, as
the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in
respect of such Conversion Date (or such period, as the case may be), the
Company, through the Trustee, shall deliver such Settlement Notice to
converting Holders no later than the close of business on the Trading Day
immediately following the relevant Conversion Date (or, in the case of any
conversions occurring on or after May 1, 2017, no later than May 1,
2017).  If the Company does not elect a
Settlement Method prior to the deadline set forth in the immediately preceding
sentence, the Company shall no longer have the right to elect Cash Settlement
or Physical Settlement and the Company shall be deemed to have elected
Combination Settlement in respect of its Conversion Obligation, and the
Specified Dollar Amount per $1,000 principal amount of Securities shall be
deemed to be $1,000.  Such Settlement
Notice shall specify the relevant Settlement Method and, in the case of an
election of Combination Settlement, the relevant Settlement Notice shall indicate
the Specified Dollar Amount.  If the
Company elects Combination Settlement but does not timely notify converting
Holders of the Specified Amount per $1,000 principal amount of Securities, such
Specified Dollar Amount will be deemed to be $1,000.


 


(ii)           The cash, shares of Common Stock or
combination of cash and shares of Common Stock in respect of any conversion of
Securities (the “Settlement Amount”) shall be
computed as follows:


 


(A)             if the Company elects to satisfy
its Conversion Obligation in respect of such conversion by Physical Settlement,
the Company shall deliver to


 


26

















 


the
converting Holder in respect of each $1,000 principal amount of Securities
being converted a number of shares of Common Stock equal to the Conversion
Rate;


 


(B)              if the Company elects to satisfy
its Conversion Obligation in respect of such conversion by Cash Settlement, the
Company shall pay to the converting Holder in respect of each $1,000 principal
amount of Securities being converted cash in an amount equal to the sum of the
Daily Conversion Values for each of the 25 consecutive Trading Days during the
related Observation Period; and


 


(C)              if the Company elects (or is
deemed to have elected) to satisfy its Conversion Obligation in respect of such
conversion by Combination Settlement, the Company shall pay or deliver, as the
case may be, in respect of each $1,000 principal amount of Securities being
converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts
for each of the 25 consecutive Trading Days during the related Observation
Period.


 


(iii)          The Daily Settlement Amounts (if
applicable) and the Daily Conversion Values (if applicable) shall be determined
by the Company promptly following the last day of the Observation Period.  Promptly after such determination of the
Daily Settlement Amounts or the Daily Conversion Values, as the case may be,
and the amount of cash payable in lieu of any fractional share, the Company shall
notify the Trustee and the Conversion Agent (if other than the Trustee) of the
Daily Settlement Amounts or the Daily Conversion Values, as the case may be,
and the amount of cash payable in lieu of fractional shares of Common
Stock.  The Trustee and the Conversion
Agent (if other than the Trustee) shall have no responsibility for any such
determination.  In addition, in no event
shall the Trustee or Conversion Agent be responsible for making any
calculations under this Indenture or for determining amounts to be paid or for
monitoring any Stock Price.  For the
avoidance of doubt, the Trustee and Conversion Agent shall rely conclusively on
the calculations and information provided to them by the Company as to the
Daily VWAP, Trading Price, Daily Conversion Value, Daily Settlement Amount and
Last Reported Sale Price.  Nor shall the
Trustee or Conversion Agent be charged with knowledge of or have any duties to
monitor any Measurement Period or Observation Period.


 


(b)        Subject to Section 4.02(e), before
any Holder of a Security shall be entitled to convert a Security as set forth
above, such Holder shall (i) in the case of a Certificated Security (A) complete
and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of
Conversion Notice attached to the Form of Security set forth in Exhibit A
hereto (a “Conversion Notice”) at the office
of the Conversion Agent and state in writing therein the principal amount of
Securities to be converted and the name or names (with addresses) in which such
Holder wishes the certificate or certificates for any shares of Common Stock to
be delivered upon settlement of the Conversion Obligation to be registered, (B) deliver
such Security, duly endorsed to the Company or in blank (and accompanied by
appropriate endorsement and transfer documents), to the Conversion Agent and (3) if
required, pay funds equal to interest payable on the next Interest Payment Date
to which such Holder is not entitled as set forth in subsection (g)


 


27

















 


of this Section 4.02
and (ii) in the case of a Global Security, comply with the Depositary’s
procedures for converting a beneficial interest in a Global Security and, if
required, pay funds equal to interest payable on the next Interest Payment Date
to which such Holder is not entitled as set forth in subsection (g) of
this Section 4.02.  The Trustee
(and, if different, the Conversion Agent) shall notify the Company of any
conversion pursuant to this Article 4 on the Conversion Date for such
conversion.  No Conversion Notice with
respect to any Securities may be surrendered by a Holder thereof if such Holder
has also delivered a Fundamental Change Repurchase Notice to the Company in
respect of such Securities and not validly withdrawn such Fundamental Change
Repurchase Notice in accordance with Section 3.02(c).


 


If more than one Security shall be
surrendered for conversion at one time by the same Holder, the Conversion
Obligation with respect to such Securities shall be computed on the basis of
the aggregate principal amount of the Securities (or specified portions thereof
to the extent permitted thereby) so surrendered.


 


(c)        A Security shall be deemed to have been
converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the
requirements set forth in subsection (b) above.  The Company shall pay or deliver, as the case
may be, the consideration due in respect of the Conversion Obligation on the
third Business Day immediately following the relevant Conversion Date, if the
Company elects Physical Settlement, or on the third Business Day immediately
following the last Trading Day of the Observation Period, in the case of any
other Settlement Method.  If any shares
of Common Stock are due to converting Holders, the Company shall issue or cause
to be issued, and deliver to the Conversion Agent or to such Holder, or such
Holder’s nominee or nominees, certificates or a book-entry transfer through the
Depositary for the full number of shares of Common Stock to which such Holder
shall be entitled in satisfaction of the Company’s Conversion Obligation.


 


(d)        In case any Security shall be
surrendered for partial conversion, the Company shall execute and the Trustee
shall authenticate and deliver to or upon the written order of the Holder of
the Security so surrendered a new Security or Securities in authorized
denominations in an aggregate principal amount equal to the unconverted portion
of the surrendered Security, without payment of any service charge by the
converting Holder but, if required by the Company or Trustee, with payment of a
sum sufficient to cover any transfer tax or similar governmental charge
required by law or that may be imposed in connection therewith as a result of
the name of the Holder of the new Securities issued upon such conversion being
different from the name of the Holder of the old Securities surrendered for
such conversion.


 


(e)        If a Holder submits a Security for
conversion, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of any shares of Common Stock upon the
conversion, unless the tax is due because the Holder requests any shares to be
issued in a name other than the Holder’s name, in which case the Holder shall
pay that tax.  The Conversion Agent may
refuse to deliver the certificates representing the shares of Common Stock
being issued in a name other than the Holder’s name until the Trustee receives
a sum sufficient to pay any tax that is due by such Holder in accordance with
the immediately preceding sentence.


 


28














 


(f)                                    Upon the conversion of an interest in a Global Security, the
Trustee, or the Securities Custodian at the direction of the Trustee, shall
make a notation on such Global Security as to the reduction in the principal
amount represented thereby.  The Company
shall notify the Trustee in writing of any conversion of Securities effected
through any Conversion Agent other than the Trustee.


 


(g)                                 Except as described below, the Company shall not make any
separate cash payment for accrued and unpaid interest, if any, upon conversion
of Securities.  The Company’s settlement
of the Conversion Obligation shall be deemed to satisfy in full its obligation
to pay the principal amount of the Security and accrued and unpaid interest, if
any, attributable to the period from, and including, the most recent Interest
Payment Date to, but excluding, the Conversion Date. As a result, accrued and
unpaid interest, if any, to, but excluding, the Conversion Date shall be deemed
to be paid in full rather than cancelled, extinguished or forfeited.  Upon a conversion of Securities into a
combination of cash and shares of Common Stock, accrued and unpaid interest
shall be deemed to be paid first out of the cash paid upon such conversion.  Notwithstanding the foregoing, if Securities
are submitted for conversion after the close of business on a Regular Record
Date and prior to the open of business on the immediately following Interest
Payment Date, Holders of such Securities as of the close of business on such
Regular Record Date shall receive the full amount of interest payable on such
Securities on such Interest Payment Date notwithstanding the conversion, and
Securities surrendered for conversion must be accompanied by funds equal to the
amount of interest payable on the principal amount of the Securities being
converted; provided that no such payment need be
made:


 


(i)                                     for conversions following the Regular Record Date
immediately preceding the Maturity Date;


 


(ii)                                  if the Company has specified a Fundamental Change Repurchase
Date that is after a Regular Record Date and on or prior to the corresponding
Interest Payment Date; or


 


(iii)                               to the extent of any Defaulted Amounts, if any Defaulted
Amounts exist at the time of conversion with respect to such Security.


 


As a result of the foregoing, if one
of the exceptions set forth in the proviso of the immediately preceding
sentence does not apply and a Holder surrenders its Securities for conversion
on a date that is not an Interest Payment Date, such Holder shall not receive
any interest on such Securities for the period from the Interest Payment Date
next preceding the Conversion Date for such Securities or for any later period,
and the Company shall not adjust the Conversion Rate to account for any accrued
but unpaid interest.


 


(h)                                 The Person in whose name the certificate for any shares of
Common Stock delivered upon conversion is registered shall be treated as a
stockholder of record as of the close of business on the relevant Conversion
Date (if the Company elects to satisfy the related Conversion Obligation by
Physical Settlement) or the last Trading Day of the relevant Observation Period
(if the Company elects, or is deemed to have elected, to satisfy the related
Conversion Obligation by Combination Settlement), as the case may be.  Upon a conversion of Securities, such Person
shall no longer be a Holder of such Securities surrendered for conversion.


 


29

















 


(i)                                     The Company shall not issue any fractional share of Common
Stock upon conversion of the Securities and shall instead pay cash in lieu of
any fractional share of Common Stock issuable upon conversion based on the
Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement)
or based on the Daily VWAP on the last Trading Day of the relevant Observation
Period (in the case of Combination Settlement). For each Security surrendered
for conversion, if the Company has elected (or is deemed to have elected)
Combination Settlement, the full number of shares that shall be issued upon
conversion thereof shall be computed on the basis of the aggregate Daily
Settlement Amounts for the applicable Observation Period and any fractional
shares remaining after such computation shall be paid in cash.


 


(j)                                     Each conversion shall be deemed to have been effected as to
any Security surrendered for conversion on the Conversion Date; provided, however, that
the Person in whose name any shares of Common Stock shall be issuable upon such
conversion shall become the holder of record of such shares as of the close of
business on the Conversion Date (in the case of Physical Settlement) or the
last Trading Day of the relevant Observation Period (if in the case of
Combination Settlement).


 


Section 4.03.  Company to Provide Stock.  The Company shall, prior to
issuance of any Securities hereunder, and from time to time as may be
necessary, reserve, out of its authorized but unissued Common Stock, a
sufficient number of shares of Common Stock to permit the conversion of all
outstanding Securities into shares of Common Stock (assuming that at the time
of computation of such number of shares, all such Securities would be converted
by a single Holder and that Physical Settlement is applicable).


 


All shares of Common Stock delivered
upon conversion of the Securities shall be newly issued shares, shall be duly
authorized, validly issued, fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim.


 


The Company shall endeavor promptly
to comply with all federal and state securities laws regulating the offer and
delivery of shares of Common Stock upon conversion of Securities, if any, and
will list or cause to have quoted such shares of Common Stock on each national
securities exchange, over-the-counter market or such other market on which the
Common Stock is then listed or quoted; provided, however, that if rules of such automated quotation
system or exchange permit the Company to defer the listing of such Common Stock
until the first conversion of the Securities into Common Stock in accordance
with the provisions of this Indenture, the Company covenants to list such
Common Stock issuable upon conversion of the Securities in accordance with the
requirements of such automated quotation system or exchange at such time.


 


Section 4.04.  Adjustment to Conversion Rate
Upon a Make-Whole Fundamental Change.  (a) 
If and only to the extent that a Holder converts its Securities in connection
with a Make-Whole Fundamental Change, the Company shall, under the
circumstances set forth in this Section 4.04, increase the Conversion Rate
for the Securities so surrendered for conversion by a number of additional
shares (the “Additional Shares”), as described
below.


 


30

















 


(b)                                 Upon surrender of Securities for conversion in connection
with a Make-Whole Fundamental Change, the Company shall, at its option, satisfy
its Conversion Obligation by Physical Settlement, Cash Settlement or
Combination Settlement in accordance with Section 4.02.  However, if the consideration for the Common
Stock in any Make-Whole Fundamental Change described in clause (c) of the
definition of Fundamental Change is composed entirely of cash, for any
conversion of the Securities following the Effective Date of such Make-Whole
Fundamental Change, the Conversion Obligation shall be calculated based solely
on the Stock Price for the transaction and shall be deemed to be an amount in
cash per $1,000 principal amount of converted Securities equal to the
Conversion Rate (including any adjustment described in this Section 4.04),
multiplied by such Stock Price.  In such event, the Conversion Obligation
shall be determined and paid to Holders in cash on the third Business Day
following the Conversion Date.  The
Company shall notify Holders of the Effective Date of any Make-Whole
Fundamental Change and issue a press release announcing such Effective Date no
later than five Business Days after such Effective Date.


 


(c)                                  The number of Additional Shares, if any, by which the
Conversion Rate shall be increased shall be determined by reference to the
table below, based on the date on which the Make-Whole Fundamental Change
occurs or becomes effective (the “Effective Date”)
and the price (the “Stock Price”)
paid (or deemed to be paid) per share of Common Stock in such Make-Whole
Fundamental Change. If holders of Common Stock receive only cash in a
Make-Whole Fundamental Change described in clause (c) of the definition of
Fundamental Change, the Stock Price shall be the cash amount paid per share of
Common Stock. Otherwise, the Stock Price shall be the average of the Last
Reported Sale Prices of the Common Stock on each of the five consecutive
Trading Days prior to, but excluding, the Effective Date of the Make-Whole
Fundamental Change.


 


(d)                                 A conversion of Securities by a Holder shall be deemed for
these purposes to be “in connection with” a Make-Whole Fundamental Change if
the Conversion Notice is received by the Conversion Agent on or after the
Effective Date of the Make-Whole Fundamental Change and prior to the close of
business on the Business Day immediately preceding the related Fundamental
Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that
would have been a Fundamental Change but for the carve-out in subsection (ii) of
clause (c) of the definition of Fundamental Change, the 35th Trading Day
following the actual Effective Date of the Make-Whole Fundamental Change).


 


(e)                                  The Stock Prices set forth in the first row of the following
table (i.e., the column headings) shall be adjusted
as of any date on which the Conversion Rate is adjusted pursuant to Section 4.05.
The adjusted Stock Prices shall equal the Stock Prices applicable immediately
prior to such adjustment, multiplied by 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
will be adjusted in the same manner, at the same time and for the same events
as the Conversion Rate as set forth in Section 4.05.


 


(f)                                    The following table sets forth the number of Additional
Shares to be received per $1,000 initial principal amount of Securities for
each Stock Price and Effective Date set forth below:


 


31

















 


	
   

  	
   

  	
  Stock Price

  	
   

  
	
  Effective Date

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  $

  	
   

  
	
  October [    ],
  2010

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  November 1,
  2011

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  November 1,
  2012

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  November 1,
  2013

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  November 1,
  2014

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  November 1,
  2015

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  November 1,
  2016

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  November 1,
  2017

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


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


 


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


 


(ii)                                  if the Stock Price is more than
$[      .    ] per share
(subject to adjustment in the same manner as the Stock Prices set forth in the
column headings of the table above), no Additional Shares shall be added to the
Conversion Rate; and


 


(iii)                               if the Stock Price is less than
$[    .    ] per share (subject to
adjustment in the same manner as the Stock Prices set forth in the column
headings of the table), no Additional Shares shall be added to the Conversion
Rate.


 


Notwithstanding
the foregoing, in no event shall the total number of shares of Common Stock
issuable upon conversion exceed [    .          ]
per $1,000 principal amount of Securities, subject to adjustment in the same
manner, at the same time and for the same events as the Conversion Rate as set
forth in Section 4.05.


 


Section 4.05.  Conversion Rate
Adjustments.  The Conversion
Rate shall be adjusted, without duplication, from time to time by the Company,
upon the occurrence of any of the following events, except that the Company
shall not make any adjustments to the Conversion Rate if Holders of the
Securities participate (other than in the case of a share split or share
combination), at the same time and upon the same terms as holders of the Common
Stock and solely as a result of holding the Securities, in any of the events
described in this Section 4.05, without having to convert their Securities
as if they held a number of shares of Common Stock equal to the Conversion
Rate, multiplied by the principal amount
(expressed in thousands) of Securities held by such Holder.


 


(a)                                  If the Company exclusively issues shares of Common Stock as
a dividend or distribution on shares of its Common Stock, or if the Company
effects a share split or share combination, the Conversion Rate shall be
adjusted based on the following formula:


 





 


32

















 


where,


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect
  immediately prior to the open of business on the Ex-Dividend Date of such
  dividend or distribution, or immediately prior to the open of business on the
  effective date of such share split or share combination, as applicable;

  
	
   

  	
   

  	
   

  
	
  CR'

  	
  =

  	
  the Conversion Rate in effect
  immediately after the open of business on such Ex-Dividend Date or effective
  date;

  
	
   

  	
   

  	
   

  
	
  OS0

  	
  =

  	
  the number of shares of Common
  Stock outstanding immediately prior to the open of business on such
  Ex-Dividend Date or effective date; and

  
	
   

  	
   

  	
   

  
	
  OS'

  	
  =

  	
  the number of shares of Common
  Stock outstanding immediately after giving effect to such dividend,
  distribution, share split or share combination.

  



 


Any adjustment made under this Section 4.05(a) shall
become effective immediately after the open of business on the Ex-Dividend Date
for such dividend or distribution, or immediately after the open of business on
the effective date for such share split or share combination, as
applicable.  If any dividend or
distribution of the type described in this Section 4.05(a) is
declared but not so paid or made, the Conversion Rate shall be immediately
readjusted, effective as of the date the Board of Directors determines not to
pay such dividend or distribution, to the Conversion Rate that would then be in
effect if such dividend or distribution had not been declared.


 


(b)                                 If the Company issues to all or substantially all holders of
its Common Stock any rights, options or warrants entitling them, for a period
of not more than 60 calendar days after the announcement date of such issuance,
to subscribe for or purchase shares of the Common Stock at a price per share
that is less than the average of the Last Reported Sale Prices of the Common
Stock for the five consecutive Trading Day period ending on, and including, the
Trading Day immediately preceding the date of announcement of such issuance,
the Conversion Rate shall be increased based on the following formula:


 





 


where,


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect
  immediately prior to the open of business on the Ex-Dividend Date for such
  issuance;

  
	
   

  	
   

  	
   

  
	
  CR'

  	
  =

  	
  the Conversion Rate in effect
  immediately after the open of business on such Ex-Dividend Date;

  
	
   

  	
   

  	
   

  
	
  OS0

  	
  =

  	
  the number of shares of Common
  Stock outstanding immediately prior to the open of business on such
  Ex-Dividend Date;

  
	
   

  	
   

  	
   

  
	
  X

  	
  =

  	
  the total number of shares of
  Common Stock issuable pursuant to such rights, options or warrants; and

  



 


33

















 


	
  Y

  	
  =

  	
  the number of shares of Common
  Stock equal to the aggregate price payable to exercise such rights, options
  or warrants, divided by the average of the
  Last Reported Sale Prices of the Common Stock over the five consecutive
  Trading Day period ending on, and including, the Trading Day immediately
  preceding the date of announcement of the issuance of such rights, options or
  warrants.

  



 


Any increase made under this Section 4.05(b) shall
be made successively whenever any such rights, options or warrants are issued
and shall become effective immediately after the open of business on the
Ex-Dividend Date for such issuance.  To
the extent that shares of the Common Stock are not delivered after the
expiration of such rights, options or warrants, the Conversion Rate shall be
decreased to the Conversion Rate that would then be in effect had the increase
with respect to the issuance of such rights, options or warrants been made on
the basis of delivery of only the number of shares of Common Stock actually
delivered.  If such rights, options or
warrants are not so issued, the Conversion Rate shall be decreased to the
Conversion Rate that would then be in effect if such Ex-Dividend Date for such
issuance had not occurred.


 


For purposes of this Section 4.05(b),
in determining whether any rights, options or warrants entitle the holders to
subscribe for or purchase shares of the Common Stock at less than such average
of the Last Reported Sale Prices of the Common Stock for the five consecutive
Trading Day period ending on, and including, the Trading Day immediately
preceding the date of announcement for such issuance, and in determining the
aggregate offering price of such shares of Common Stock, there shall be taken
into account any consideration received by the Company for such rights, options
or warrants and any amount payable on exercise or conversion thereof, the value
of such consideration, if other than cash, to be determined by the Board of
Directors.


 


(c)                                  If the Company distributes shares of its Capital Stock,
evidences of its indebtedness, other assets or property or rights, options or
warrants to acquire its Capital Stock or other securities, to all or
substantially all holders of the Common Stock, excluding (i) dividends,
distributions or issuances as to which an adjustment was effected pursuant to Section 4.05(a) or
Section 4.05(b), (ii) dividends or distributions paid exclusively in
cash as to which an adjustment was effected pursuant to Section 4.05(d), (iii) Spin-Offs
as to which the provisions set forth below in this Section 4.05(c) shall
apply and (iv) Non-Separate Rights (any of such shares of Capital Stock,
evidences of indebtedness, other assets or property or rights, options or
warrants to acquire Capital Stock or other securities of the Company, the “Distributed Property”), then the Conversion Rate shall be
increased based on the following formula:


 





 


where,


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect
  immediately prior to the open of business on the Ex-Dividend Date for such
  distribution;

  
	
   

  	
   

  	
   

  
	
  CR'

  	
  =

  	
  the Conversion Rate in effect
  immediately after the open of business on such Ex-Dividend Date;

  



 


34

















 


	
  SP0

  	
  =

  	
  the average of the Last Reported
  Sale Prices of the Common Stock over the five consecutive Trading Day period
  ending on the Trading Day immediately preceding the Ex-Dividend Date for such
  distribution; and

  
	
   

  	
   

  	
   

  
	
  FMV

  	
  =

  	
  the fair market value (as
  determined by the Board of Directors) of the Distributed Property with
  respect to each outstanding share of the Common Stock on the Ex-Dividend Date
  for such distribution.

  



 


Any increase made under the portion
of this Section 4.05(c) above shall become effective immediately
after the open of business on the Ex-Dividend Date for such distribution.  If such distribution is not so paid or made,
the Conversion Rate shall be decreased to the Conversion Rate that would then
be in effect if such dividend or distribution had not been declared.  Notwithstanding the foregoing, if “FMV” (as
defined above) is equal to or greater than “SP0”
(as defined above), in lieu of the foregoing increase, each Holder of a
Security shall receive, in respect of each $1,000 principal amount thereof, at
the same time and upon the same terms as holders of the Common Stock receive
the Distributed Property, the amount of Distributed Property such Holder would
have received if such Holder owned a number of shares of Common Stock equal to
the Conversion Rate in effect on the Ex-Dividend Date for the
distribution.  If the Board of Directors
determines the “FMV” (as defined above) of any distribution for purposes of
this Section 4.05(c) by reference to the actual or when-issued
trading market for any securities, it shall in doing so consider the prices in
such market over the same period used in computing the Last Reported Sale
Prices of the Common Stock over the five consecutive Trading Day period ending
on the Trading Day immediately preceding the Ex-Dividend Date for such
distribution.


 


With respect to an adjustment
pursuant to this Section 4.05(c) where there has been a payment of a
dividend or other distribution on the Common Stock of shares of Capital Stock
of any class or series, or similar equity interest, of or relating to a
Subsidiary or other business unit of the Company, that are, or, when issued,
will be, listed or admitted for trading on a U.S. national securities exchange
(a “Spin-Off”), the Conversion Rate shall
be increased based on the following formula:


 





 


where,


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect
  immediately prior to the end of the Valuation Period;

  
	
   

  	
   

  	
   

  
	
  CR’

  	
  =

  	
  the Conversion Rate in effect
  immediately after the end of the Valuation Period;

  
	
   

  	
   

  	
   

  
	
  FMV0

  	
  =

  	
  the average of the Last Reported
  Sale Prices of the Capital Stock or similar equity interest distributed to
  holders of the Common Stock applicable to one share of the Common Stock
  (determined by reference to the definition of Last Reported Sale Price as if
  references therein to Common Stock were to such Capital Stock or similar
  equity interest) over the first five consecutive Trading Day period after,
  and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and

  



 


35

















 


	
  MP0

  	
  =

  	
  the average of the Last Reported
  Sale Prices of the Common Stock over the Valuation Period.

  



 


The adjustment to the Conversion Rate under the
preceding paragraph shall occur on the last Trading Day of the Valuation
Period; provided that in respect of any
conversion during the Valuation Period, references in the portion of this Section
4.05(c) related to Spin-Offs to five Trading Days shall be deemed to be
replaced with such lesser number of Trading Days as have elapsed between the
Ex-Dividend Date of such Spin-Off and the Conversion Date in determining the
Conversion Rate.


 


For purposes of this Section 4.05(c) (and
subject in all respect to Section 4.09), rights, options or warrants
distributed by the Company, pursuant to a stockholder rights plan to all or
substantially all holders of its Common Stock entitling them to subscribe for
or purchase shares of the Company’s Capital Stock, including Common Stock
(either initially or under certain circumstances), which rights, options or
warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with
such shares of the Common Stock; (ii) are not exercisable; and (iii) are
also issued in respect of future issuances of the Common Stock, shall be deemed
not to have been distributed for purposes of this Section 4.05(c) (and no
adjustment to the Conversion Rate under this Section 4.05(c) will be required)
until the occurrence of the earliest Trigger Event, whereupon such rights,
options or warrants shall be deemed to have been distributed and an appropriate
adjustment (if any is required) to the Conversion Rate shall be made under this
Section 4.05(c).  If any such right,
option or warrant, including any such existing rights, options or warrants
distributed prior to the date of this Indenture, are subject to events, upon
the occurrence of which such rights, options or warrants become exercisable to
purchase different securities, evidences of indebtedness or other assets, then
the date of the occurrence of any and each such event shall be deemed to be the
date of distribution and Ex-Dividend Date with respect to new rights, options
or warrants with such rights (in which case the existing rights, options or
warrants shall be deemed to terminate and expire on such date without exercise
by any of the holders thereof).  In
addition, in the event of any distribution (or deemed distribution) of rights,
options or warrants, or any Trigger Event or other event (of the type described
in the immediately preceding sentence) with respect thereto that was counted
for purposes of calculating a distribution amount for which an adjustment to
the Conversion Rate under this Section 4.05(c) was made, (1) in
the case of any such rights, options or warrants that shall all have been
redeemed or purchased without exercise by any holders thereof, upon such final
redemption or purchase (x) the Conversion Rate shall be readjusted as if such
rights, options or warrants had not been issued and (y) the Conversion
Rate shall then again be readjusted to give effect to such distribution, deemed
distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or purchase price received by a
holder or holders of Common Stock with respect to such rights, options or
warrants (assuming such holder had retained such rights, options or warrants),
made to all holders of Common Stock as of the date of such redemption or purchase,
and (2) in the case of such rights, options or warrants that shall have
expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights, options and warrants had
not been issued.


 


For purposes of Section 4.05(a),
Section 4.05(b) and this Section 4.05(c), any dividend or
distribution to which this Section 4.05(c) is applicable that also
includes one or both of:


 


36

















 


(A)                              a dividend or distribution of shares of Common Stock to
which Section 4.05(a) is applicable (the “Clause A
Distribution”); or


 


(B)                                a dividend or distribution of rights, options or warrants to
which Section 4.05(b) is applicable (the “Clause B
Distribution”),


 


then (1) such dividend or
distribution, other than the Clause A Distribution and the Clause B
Distribution, shall be deemed to be a dividend or distribution to which this Section 4.05(c) is
applicable (the “Clause C Distribution”) and any
Conversion Rate adjustment required by this Section 4.05(c) with
respect to such Clause C Distribution shall then be made, and (2) the
Clause A Distribution and Clause B Distribution shall be deemed to immediately
follow the Clause C Distribution and any Conversion Rate adjustment required by
Section 4.05(a) and Section 4.05(b) with respect thereto
shall then be made, except that, if determined by the Company (I) the “Ex-Dividend
Date” of the Clause A Distribution and the Clause B Distribution shall be
deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any
shares of Common Stock included in the Clause A Distribution or Clause B
Distribution shall be deemed not to be “outstanding immediately prior to the
open of business on such Ex-Dividend Date or effective date” within the meaning
of Section 4.05(a) or “outstanding immediately prior to the open of
business on such Ex-Dividend Date” within the meaning of Section 4.05(b).


 


(d)                                 If the Company makes any cash dividend or distribution to
all or substantially all holders of the Common Stock, the Conversion Rate shall
be adjusted based on the following formula:


 





 


where,


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect
  immediately prior to the open of business on the Ex-Dividend Date for such
  dividend or distribution;

  
	
   

  	
   

  	
   

  
	
  CR'

  	
  =

  	
  the Conversion Rate in effect
  immediately after the open of business on the Ex-Dividend Date for such
  dividend or distribution;

  
	
   

  	
   

  	
   

  
	
  SP0

  	
  =

  	
  the Last Reported Sale Price of
  the Common Stock on the Trading Day immediately preceding the Ex-Dividend
  Date for such dividend or distribution; and

  
	
   

  	
   

  	
   

  
	
  C

  	
  =

  	
  the amount in cash per share the
  Company distributes to holders of its Common Stock.

  



 


Any increase pursuant to this Section 4.05(d) shall
become effective immediately after the open of business on the Ex-Dividend Date
for such dividend or distribution.  If
such dividend or distribution is not so paid, the Conversion Rate shall be
decreased, effective as of the date the Board of Directors determines not to
make or pay such dividend or distribution, to the Conversion Rate that would then
be in effect if such dividend or distribution had not been declared.  Notwithstanding the foregoing, if “C” (as
defined above) is equal to or greater than 


 


37

















 


“SP0”
(as defined above), in lieu of the foregoing increase, each Holder of a
Security shall receive, for each $1,000 principal amount of Securities, at the
same time and upon the same terms as holders of shares of the Common Stock, the
amount of cash that such Holder would have received if such Holder owned a
number of shares of Common Stock equal to the Conversion Rate on the
Ex-Dividend Date for such cash dividend or distribution.


 


(e)                                  If the Company or any of its Subsidiaries make a payment in
respect of a tender offer or exchange offer for the Common Stock, to the extent
that the cash and value of any other consideration included in the payment per
share of the Common Stock exceeds the Last Reported Sale Price of the Common
Stock on the Trading Day next succeeding the last date on which tenders or
exchanges may be made pursuant to such tender offer or exchange offer, as the
case may be, the Conversion Rate shall be increased based on the following
formula:


 





 


where,


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect
  immediately prior to the close of business on the Trading Day next succeeding
  the date such tender or exchange offer expires;

  
	
   

  	
   

  	
   

  
	
  CR'

  	
  =

  	
  the Conversion Rate in effect
  immediately after the close of business on the Trading Day next succeeding
  the date such tender or exchange offer expires;

  
	
   

  	
   

  	
   

  
	
  AC

  	
  =

  	
  the aggregate value of all cash
  and any other consideration (as determined by the Board of Directors) paid or
  payable for shares of Common Stock purchased in such tender or exchange
  offer;

  
	
   

  	
   

  	
   

  
	
  OS0

  	
  =

  	
  the number of shares of Common
  Stock outstanding immediately prior to the date such tender or exchange offer
  expires (prior to giving effect to the purchase of all shares of Common Stock
  accepted for purchase or exchange in such tender or exchange offer);

  
	
   

  	
   

  	
   

  
	
  OS'

  	
  =

  	
  the number of shares of Common
  Stock outstanding immediately after the date such tender or exchange offer
  expires (after giving effect to the purchase of all shares of Common Stock
  accepted for purchase or exchange in such tender or exchange offer); and

  
	
   

  	
   

  	
   

  
	
  SP'

  	
  =

  	
  the average of the Last Reported
  Sale Price of the Common Stock on the Trading Day next succeeding the date
  such tender or exchange offer expires.

  



 


The adjustment to the Conversion Rate under this Section 4.05(e) shall
occur at the close of business on the Trading Day next succeeding the date such
tender or exchange offer expires.


 


(f)                                    Notwithstanding this Section 4.05 or any other
provision of this Indenture or the Securities, if a Conversion Rate adjustment
becomes effective on any Ex-Dividend Date, and a Holder that has converted its
Securities on or after such Ex-Dividend Date and on or prior to the 


 


38

















 


related
Record Date would be treated as the record holder of the Common Stock as of the
related Conversion Date as described under Section 4.02(j) based on
an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding
the Conversion Rate adjustment provisions in this Section 4.05, the
Conversion Rate adjustment relating to such Ex-Dividend Date shall not be made
for such converting Holder. Instead, such Holder shall be treated as if such
Holder were the record owner of the shares of Common Stock on an unadjusted
basis and participate in the related dividend, distribution or other event
giving rise to such adjustment.


 


(g)                                 Except as stated herein, the Company shall not adjust the
Conversion Rate for the issuance of shares of its Common Stock or any
securities convertible into or exchangeable for shares of its Common Stock or
the right to purchase shares of its Common Stock or such convertible or
exchangeable securities.  In addition,
the Company shall not adjust the Conversion Rate for guarantees issued in
respect of any of its outstanding securities.


 


(h)                                 In addition to those adjustments required by subsections
(a), (b), (c), (d) and (e) of this Section 4.05, and to the
extent permitted by applicable law and subject to the applicable rules of
The NASDAQ Global Select Market, the Company from time to time may increase the
Conversion Rate by any amount for any period of at least 20 Business Days if
the Board of Directors has determined that such increase would be in the
Company’s best interest.  In addition,
the Company may (but is not required to) increase the Conversion Rate, as the
Board of Directors considers advisable, to avoid or diminish any income tax to
holders of Common Stock or rights to purchase Common Stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or from any
event treated as such for tax purposes. 
Whenever the Conversion Rate is increased pursuant to either of the
preceding two sentences, the Company shall mail to the Holder of each Security
at its last address appearing on the register of the Primary Registrar a notice
of the increase at least 15 days prior to the date the increased Conversion
Rate takes effect, and such notice shall state the increased Conversion Rate
and the period during which it will be in effect.


 


(i)                                     Notwithstanding anything to the contrary in this Section 4.05,
the Conversion Rate shall not be adjusted:


 


(i)                                     upon the issuance of any shares of Common Stock pursuant to
any present or future plan 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 plan;


 


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


 


(iii)                               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 (ii) of this subsection (i) and outstanding
as of the date the Securities were first issued;


 


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


 


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


 


39














 


(j)                          All calculations and other determinations in respect of the
Conversion Rate shall be made by the Company to the nearest 1/10,000th of a
share.


 


(k)                       Whenever the Conversion Rate is adjusted pursuant to this Section
4.05, the Company shall compute the adjusted Conversion Rate in accordance with
this Section 4.05 and shall prepare an Officers’ Certificate setting forth (i) the
adjusted Conversion Rate, (ii) the subsection of this Section 4.05 pursuant to
which such adjustment has been made, showing in reasonable detail the facts
upon which such adjustment is based, (iii) the calculation of such adjustment
and (iv) the date as of which such adjustment is effective, and such Officers’
Certificate shall promptly be delivered to the Trustee and each Conversion
Agent (which certificates shall be conclusive evidence of the accuracy of such
adjustment absent manifest error).  As
soon as practicable after each such adjustment, the Company shall deliver to
the Holders a notice stating that the Conversion Rate has been adjusted and
setting forth the adjusted Conversion Rate. Unless and until a Responsible
Officer of the Trustee shall receive an Officers’ Certificate with respect to
an adjustment of the Conversion Rate, the Trustee may assume without inquiry
that the Conversion Rate has not been adjusted and that the last Conversion
Rate of which it has knowledge remains in effect.  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 Securities desiring inspection thereof at its office
during normal business hours. 
Simultaneously with an adjustment of the Conversion Rate, the Company
shall disseminate a press release detailing the new Conversion Rate and other
relevant information.


 


(l)                           For purposes of this Section 4.05, the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company so long as the Company does not pay any dividend or
make any distribution on shares of Common Stock held in the treasury of the
Company, but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock.


 


Section 4.06.  Adjustments of Prices.  Whenever any provision of this
Indenture requires the Company to calculate the Last Reported Sale Prices, the
Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts over a
span of multiple days (including an Observation Period and the period for
determining the Stock Price for purposes of a Make-Whole Fundamental Change),
the Board of Directors shall make appropriate adjustments to each to account
for any adjustment to the Conversion Rate that becomes effective, or any event
requiring an adjustment to the Conversion Rate where the Ex-Dividend Date of
the event occurs, at any time during the relevant period.


 


Section 4.07.  Effect of
Recapitalizations, Reclassifications and Changes of the Common Stock.  (a)  In
the case of:


 


(i)                                     any recapitalization, reclassification or change of the
Common Stock (other than changes resulting from a subdivision or combination),


 


(ii)                                  any consolidation, merger or combination involving the
Company,


 


40

















 


(iii)                               any sale, lease or other transfer to a third party of the
consolidated assets of the Company and the Company’s Subsidiaries substantially
as an entirety or


 


(iv)                              any statutory share exchange,


 


in each case as a result of which
the Common Stock would be converted into, or exchanged for, stock, other
securities, other property or assets (including cash or any combination
thereof) (any such event, a “Merger Event”),
then, at and after the effective time of such Merger Event, the right to
convert each $1,000 principal amount of Securities shall be changed into a
right to convert such principal amount of Securities into the kind and amount
of shares of stock, other securities or other property or assets (including
cash or any combination thereof) that a holder of a number of shares of Common
Stock equal to the Conversion Rate immediately prior to such Merger Event would
have owned or been entitled to receive (the “Reference
Property”, with each “unit of Reference Property”
meaning the kind and amount of Reference Property that a holder of one share of
Common Stock is entitled to receive) upon such Merger Event and, prior to or at
the effective time of such Merger Event, the Company or the successor or
purchasing Person, as the case may be, shall execute with the Trustee a
supplemental indenture permitted under Section 10.01(f) providing for such
change in the right to convert each $1,000 principal amount of Securities; provided, however, that
at and after the effective time of the Merger Event (A) the Company shall
continue to have the right to determine the form of consideration to be paid or
delivered, as the case may be, upon conversion of Securities in accordance with
Section 4.02 and (B)(I) any amount payable in cash upon conversion of the
Securities in accordance with Section 4.02 shall continue to be payable in
cash, (II) any shares of Common Stock that the Company would have been required
to deliver upon conversion of the Securities in accordance with Section 4.02
shall instead be deliverable in the amount and type of Reference Property that
a holder of that number of shares of Common Stock would have been entitled to
receive in such Merger Event and (III) the Daily VWAP shall be calculated based
on the value of a unit of Reference Property. 
If the Merger Event causes the Common Stock to be converted into, or
exchanged for, the right to receive more than a single type of consideration
(determined based in part upon any form of stockholder election), then (i) the
Reference Property into which the Securities will be convertible shall be
deemed to be the weighted average of the types and amounts of consideration
received by the holders of Common Stock that affirmatively make such an
election, and (ii) the unit of Reference Property for purposes of the
immediately preceding paragraph shall refer to the consideration referred to in
clause (i) attributable to one share of Common Stock.  The Company shall notify Holders, the Trustee
and the Conversion Agent (if other than the Trustee) of the weighted average as
soon as practicable after the determination is made.


 


If the
holders receive only cash in such Merger Event, then for all conversions that
occur after the effective date of such Merger Event (x) the consideration due
upon conversion of each $1,000 principal amount of Securities shall be solely
cash in an amount equal to the Conversion Rate in effect on the Conversion Date
(as may be increased by any Additional Shares pursuant to Section 4.04), multiplied by the price paid per share of Common Stock in
such Merger Event and (y) the Company shall satisfy the Conversion Obligation
by paying cash to converting Holders on the third Business Day immediately
following the Conversion Date.


 


41

















 


Such
supplemental indenture described in the second immediately preceding paragraph
shall provide for adjustments that shall be as nearly equivalent as is possible
to the adjustments provided for in this Article 4.  If, in the case of any Merger Event, the Reference
Property includes shares of stock, securities or other property or assets
(including cash or any combination thereof) of a Person other than the
successor or purchasing corporation, as the case may be, in such Merger Event,
then such supplemental indenture shall also be executed by such other Person
and shall contain such additional provisions to protect the interests of the
Holders of the Securities as the Board of Directors shall reasonably consider
necessary by reason of the foregoing, including to the extent required by the
Board of Directors and practicable the provisions providing for the repurchase
rights set forth in Article 3.


 


(b)                       In the event the Company shall execute a supplemental
indenture pursuant to subsection (a) of this Section 4.07, the Company shall
promptly file with the Trustee an Officers’ Certificate briefly stating the
reasons therefor, the kind or amount of cash, securities or property or asset
that will comprise the Reference Property after any such Merger Event, any
adjustment to be made with respect thereto and that all conditions precedent
have been complied with, and shall promptly mail notice thereof to all
Holders.  The Company shall cause notice
of the execution of such supplemental indenture to be mailed to each Holder, at
its address appearing on the register of the Primary Registrar provided for in
this Indenture, within 20 days after execution thereof.  Failure to deliver such notice shall not
affect the legality or validity of such supplemental indenture.


 


(c)                        The Company shall not become a party to any Merger Event
unless its terms are consistent with this Section 4.07.  None of the foregoing provisions shall affect
the right of a holder of Securities to convert its Securities into cash, shares
of Common Stock or a combination of cash and shares of Common Stock, as
applicable, as set forth in Section 4.01 and Section 4.02 prior to the
effective date of such Merger Event.


 


(d)                       The above provisions of this Section 4.07 shall similarly
apply to successive Merger Events.


 


Section 4.08.  Cancellation of Converted
Securities.  All Certificated
Securities delivered for conversion shall be delivered to the Trustee 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 Security, the Trustee or the Securities Custodian, at
the direction of the Trustee, shall reduce the aggregate principal amount of
outstanding Securities represented by such Global Security to reflect the
conversion.


 


Section 4.09.  Stockholders Rights.  To the extent that the Company has
a stockholder rights plan in effect upon conversion of the Securities, each
share of Common Stock, if any, issued upon such conversion shall be entitled to
receive the appropriate number of rights, if any, and the certificates
representing the Common Stock issued upon such conversion shall bear such
legends, if any, in each case as may be provided by the terms of any such
stockholder rights plan, as the same may be amended from time to time (such
rights prior to separation from the Common Stock, “Non-Separate
Rights”). If at the time of conversion, however, the rights have
separated from the shares of Common Stock in accordance with the provisions of
the applicable stockholder rights plan so that the Holders would not be
entitled to receive any rights in respect 


 


42

















 


of Common Stock, if any, issuable
upon conversion of the Securities, the Conversion Rate shall be increased at
the time of separation as if the Company distributed to all or substantially
all holders of Common Stock shares of Capital Stock of the Company, evidences
of its indebtedness, other assets or property or rights, options or warrants to
acquire its Capital Stock or other securities as provided in Section 4.05(c),
subject to decrease in the event of the expiration, termination or redemption
of such rights.  A distribution of rights
pursuant to such a stockholder rights plan shall not trigger a Conversion Rate
adjustment pursuant to Section 4.05(c) if Holders of the Securities participate
in such distribution on an as-converted basis in accordance with the first
paragraph of Section 4.05.


 


Section 4.10.  Trustee’s Disclaimer.  The Trustee shall have no duty to
determine when an adjustment under this Article 4 should be made, how it should
be made or what such adjustment should be, but may accept as conclusive
evidence of that fact or the correctness of any such adjustment, and shall be
protected in relying upon, the Officers’ Certificate that the Company is
obligated to deliver to the Trustee pursuant to Section 4.05(k). The Trustee
makes no representation as to the validity or value of any securities or assets
issued upon conversion of Securities, and the Trustee shall not be responsible
for the Company’s failure to comply with any provisions of this Article 4.


 


The Trustee shall not be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture executed pursuant to Section 6.01, but may accept as
conclusive evidence of the correctness thereof, and shall be fully protected in
relying upon, the Officers’ Certificate with respect thereto which the Company
is obligated to file with the Trustee pursuant to Section 6.01.


 


ARTICLE
5

COVENANTS


 


Section 5.01.  Payment on the
Securities.  The Company shall
promptly make all payments in respect of the Securities on the dates and in the
manner provided in the Securities and this Indenture. Principal (including the
Fundamental Change Repurchase Price, if applicable) of and interest on the
Securities shall be considered paid on the date it is due, if the Paying Agent
(if other than the Company or an Affiliate thereof) holds as of 11:00 a.m., New
York City time, on the due date money, deposited by the Company or an Affiliate
thereof in immediately available funds, designated for and sufficient to pay
all principal (including the Fundamental Change Repurchase Price) and interest
then due on the Securities.


 


Payment of the principal of and
interest on the Securities shall be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York
(which shall initially be the office or agency of the Trustee in the Borough of
Manhattan, The City of New York); provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address appears in the Register; provided
further that a Holder with an aggregate principal amount in excess
of $2,000,000 will be paid by wire transfer in immediately available funds at
the election of such Holder if such Holder has provided wire transfer
instructions to the Company and the Trustee at least 10 Business Days prior to
the payment date.


 


43

















 


Section 5.02.  SEC Reports.  (a)  The Company shall file with the Trustee within
15 days after the same are required to be filed with the SEC, copies of any documents
or reports that the Company is required to file with the SEC pursuant to Section
13 or 15(d) of the Exchange Act (giving effect to any grace period provided by Rule
12b-25 under the Exchange Act). Any such document or report that the Company
files with the SEC via the EDGAR system shall be deemed to be filed with the
Trustee for purposes of this Section 5.02 at the time such documents are filed
via EDGAR. The Company shall at all times comply with TIA Section 314(a).


 


(b)                       Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee’s receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates).


 


Section 5.03.  Compliance Certificates.  (a)  The Company shall deliver to the Trustee
within 90 days after the end of each fiscal year of the Company (beginning with
the fiscal year ending on December 31, 2010) an Officers’ Certificate, stating
that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of his
or her knowledge, in such Officer’s capacity as an officer of the Company:


 


(i)                                     the Company has kept, observed, performed and fulfilled each
and every covenant contained in this Indenture and is not in default (without
regard to grace periods or notice requirements) in the performance or
observance of any of the terms, provisions and conditions of this Indenture,
or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto; and


 


(ii)                                  no event has occurred and remains in existence by reason of
which payments on account of the principal of, premium, if any, or interest on
the Securities is prohibited or if such event has occurred, a description of
the event and what action the Company is taking or proposes to take with
respect thereto.


 


(b)                       The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers’ Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes
to take with respect thereto.


 


Section 5.04.  Further Instruments and Acts.  Upon request of the Trustee, the
Company will execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper to carry out more effectively the
purposes of this Indenture.


 


Section 5.05.  Maintenance of Corporate
Existence.  Subject to Article
6, the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence.


 


44

















 


Section 5.06.  Stay, Extension and Usury
Laws.  The Company covenants
(to the extent that it may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law or other law which would prohibit or
forgive the Company from paying all or any portion of the principal of or
interest on the Securities as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and the Company (to the extent it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and
covenants that it will not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.


 


ARTICLE
6

CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER OR LEASE


 


Section 6.01.  Company May Consolidate, Etc,
Only on Certain Terms.  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 sell, convey, transfer or lease all or substantially all of its
properties and assets to another Person, unless:


 


(a)                       in case the Company shall consolidate with or merge into
another Person (in a transaction in which the Company is not the surviving
corporation) or sell, convey, transfer or lease all or substantially all of its
properties and assets to another Person, the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale, conveyance or transfer, or which leases, all or substantially all of
the properties and assets of the Company shall:


 


(i)                                     be a corporation or limited liability corporation organized
and validly existing under the laws of the United States of America, any State
thereof or the District of Columbia; provided that the property into which the
notes will be convertible will be the stock or other equity of an entity that
is a corporation for U.S. federal income tax purposes; and


 


(ii)                                  expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of and interest on all the Securities
and the performance or observance of every covenant of this Indenture on the
part of the Company to be performed or observed and the conversion rights shall
be provided for in accordance with Article 4, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee, by
the Person (if other than the Company) formed by such consolidation or into
which the Company shall have been merged or by the Person which shall have
acquired the Company’s assets;


 


(b)                       immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing; and


 


45

















 


(c)                        the Company has delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
comply with this Article 6 and that all conditions precedent herein provided
for relating to such transaction have been complied with.


 


Notwithstanding anything to the
contrary herein, the Company may merge with an Affiliate of it solely for the
purpose of reincorporating the Company in another jurisdiction in the United
States of America, any State thereof or the District of Columbia, and the
Company may convert into a limited liability corporation if the condition set
forth in the parenthetical of clause (a)(i) of this Section 6.01 shall be
satisfied assuming that references therein to Person shall be deemed to be
references to the Company.


 


Section 6.02.  Successor Substituted.  Upon any consolidation of the
Company with, or merger of the Company into, any other Person or any sale,
conveyance, transfer or lease of all of substantially all of the properties and
assets of the Company in accordance with Section 6.01, there shall be an
adjustment to the Conversion Rate and the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.


 


ARTICLE
7

DEFAULT AND REMEDIES


 


Section 7.01.  Events Of Default.  An “Event of
Default” shall occur if:


 


(1)                                 the Company fails to pay the principal of any Security when
due and payable at its stated maturity, upon any required repurchase, upon
declaration of acceleration or otherwise;


 


(2)                                 the Company fails to pay the interest on any Security when
due and payable and such failure continues for a period of 30 days;


 


(3)                                 the Company fails to convert any Security in accordance with
this Indenture upon exercise of a Holder’s conversion right and such failure
continues for 5 days;


 


(4)                                 the Company fails to provide timely notice pursuant to Section
3.02(a), Section 3.02(b), Section 4.01(b)(iii), Section 4.01(b)(iv) or Section 4.04(b),
in each case when due and such failure continues for 30 days;


 


(5)                                 the Company fails to comply with its obligations set forth
in Article 6;


 


(6)                                 the Company fails to perform any other agreement required of
it in this Indenture or the Securities and such failure continues for 60 days
after written notice is given in accordance with the immediately succeeding
paragraph;


 


46

















 


(7)                                 any indebtedness for money borrowed by the Company or any of
its Significant 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 $25,000,000 (or, at
such time as the Company’s senior unsecured indebtedness is rated BBB+ or
greater by Standard & Poor’s Ratings Services (“S&P”)
or Baa1 or greater by Moody’s Investors Service, Inc. (“Moody’s”),
in each case, with a stable or positive outlook (or if the Company’s senior unsecured
indebtedness is not rated at such time by S&P or Moody’s, the Company’s
issuer rating is BBB+ or greater from S&P or Baa1 or greater from Moody’s,
in each case, with a stable or positive outlook), in an aggregate principal
amount in excess of $50,000,000) is not paid at final maturity or upon
acceleration, and such indebtedness is not discharged, or such acceleration is
not cured or rescinded, within 30 days after written notice is given in
accordance with the immediately succeeding paragraph;


 


(8)                                 the Company or any Significant Subsidiary, pursuant to or
within the meaning of any Bankruptcy Law:


 


(A)                          commences a voluntary case or proceeding;


 


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


 


(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;
or


 


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


 


(A)                          is for relief against the Company or any Significant
Subsidiary in an involuntary case or proceeding;


 


(B)                          appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of the property of the Company or
any Significant Subsidiary; or


 


(C)                          orders the liquidation of the Company or any Significant
Subsidiary;


 


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


 


A default under clause (6) or clause
(7) above is not an Event of Default until the Trustee notifies the Company, or
the Holders of at least 25% in aggregate principal amount of the Securities
then outstanding notify the Company and the Trustee, in writing of the default,
and the Company does not cure the default within 60 days (in the case of clause
(6)) or 30 days (in the case of clause (7)) after receipt of such notice. The
notice given pursuant to this Section 7.01 must specify the default, demand
that it be remedied and state that the notice is a “Notice of Default.” When
any default under this Section 7.01 is cured, it ceases.


 


47

















 


The Trustee shall not be charged
with knowledge of any Event of Default unless written notice thereof shall have
been given to a Trust Officer at the Corporate Trust Office of the Trustee by
the Company, a Paying Agent, any Holder or any agent of any Holder.


 


Section 7.02.  Acceleration.  If an Event of Default (other than
an Event of Default specified in clause (7) or (8) of Section 7.01) occurs and
is continuing, the Trustee may, by notice to the Company, or the Holders of at
least 25% in aggregate principal amount of the Securities then outstanding may,
by notice to the Company and the Trustee, declare all unpaid principal to the
date of acceleration on the Securities then outstanding (if not then due and
payable) to be due and payable upon any such declaration, and the same shall
become and be immediately due and payable. If an Event of Default specified in
clause (7) or (8) of Section 7.01 occurs, all unpaid principal of the
Securities then outstanding shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder. After any acceleration, but before a
judgment or decree based on acceleration, the Holders of a majority in
aggregate principal amount of the Securities may, except with respect to the
nonpayment of principal or interest or with respect to the failure to pay
and/or deliver the consideration due upon conversion, rescind and annul such
acceleration by notice to the Trustee if (a) all existing Events of Default,
other than the non-payment of accelerated principal, have been cured or waived;
(b) to the extent the payment of such interest is lawful, interest (calculated
at the rate per annum borne by the Securities plus one percent) on overdue
installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid; (c) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction; and (d) all payments due to the Trustee and any predecessor
Trustee under Section 8.07 have been made. 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, but shall not be obligated to, pursue any
available remedy by proceeding at law or in equity to collect the payment of
the principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.


 


The Trustee may maintain a proceeding even if
it does not possess any of the Securities or does not produce any of them in
the proceeding. A delay or omission by the Trustee or any Holder in exercising
any right or remedy accruing upon an Event of Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy. All available remedies are
cumulative to the extent permitted by law.


 


Section 7.04.  Additional Interest.  (a)  Notwithstanding anything in this Indenture or
in the Securities to the contrary, to the extent the Company elects, the sole
remedy for an Event of Default during the first 180 days after the occurrence of
an Event of Default relating to (i) the Company’s failure to file with the
Trustee pursuant to Section 314(a)(1) of the TIA any documents or reports that
the Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act or (ii) the Company’s failure to comply with its obligations
as set forth in Section 5.02(a), shall after the occurrence of such an Event of
Default consist exclusively of the right to receive Additional Interest on the
Securities at a rate equal to 0.25% per annum of the principal amount of the
Securities outstanding for each day during which such Event of Default is
continuing during the 90-day period beginning on, and 


 


48

















 


including, the date on which such an
Event of Default first occurs; and 0.50% per annum of the principal amount of
the Securities outstanding for each day during which such Event of Default is
continuing during the 90-day period beginning on, and including, the 91st day
following, and including, the date on which such an Event of Default first
occurs.


 


(b)                       If the Company so elects, such Additional Interest shall be
payable in the same manner and on the same dates as the stated interest on the
Securities.  On the 181st day after such
Event of Default (if such Event of Default is not cured or waived prior to such
181st day), the Securities will be subject to acceleration as provided in Section
7.02.  This Section 7.04 shall not affect
the rights of Holders in the event of the occurrence of any other Event of
Default.  If the Company does not elect
to pay Additional Interest following an Event of Default in accordance with
this Section 7.04, the Securities shall be subject to acceleration as provided
in Section 7.02.  To elect to pay
Additional Interest as the sole remedy during the first 180 days after the
occurrence of an Event of Default relating to the failure to comply with the
reporting obligations in accordance with subsection (a) of this Section 7.04
and this subsection (b), the Company must notify all Holders of the Securities,
the Trustee and the Paying Agent of such election prior to the beginning of
such 180-day period.  Upon the Company’s
failure to timely give such notice, the Securities shall be immediately subject
to acceleration as provided in Section 7.02.


 


Section 7.05.  Waiver of Defaults and Events
of Default.  Subject to Section
7.08 and Section 9.02, the Holders of a majority in aggregate principal amount
of the Securities then outstanding by notice to the Trustee may waive an
existing default or Event of Default and its consequence, except (a) a default
or Event of Default in the payment of the principal of or interest on any
Security, (b) a failure by the Company to convert any Securities in accordance
with the provisions of the Securities and this Indenture or (c) any default or
Event of Default in respect of any provision of this Indenture or the
Securities that, under Section 10.02, cannot be modified or amended without the
consent of the Holder of each Security affected. When a default or Event of
Default is waived, it is cured and ceases.


 


Section 7.06.  Control by Majority.  The Holders of a majority in
aggregate principal amount of the outstanding Securities will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Securities. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, that the
Trustee, in its sole discretion, determines may be unduly prejudicial to the
rights of another Holder or the Trustee, or that may involve the Trustee in
personal liability unless the Trustee is offered reasonable indemnity
satisfactory to it; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction.


 


Section 7.07.  Limitations on Suits.  A Holder may not pursue any remedy
with respect to this Indenture or the Securities (except actions for the
enforcement of payment of the principal or interest on any Security on or after
the applicable due date or the right to convert the Securities in accordance
with Article 4) unless:


 


(1)                                 the Holder has previously given the Trustee written notice
of a continuing Event of Default;


 


49

















 


(2)                                 the Holders of at least 25% in aggregate principal amount of
the Securities then outstanding have made a written request and have offered to
the Trustee reasonable indemnity satisfactory to the Trustee to institute such
proceeding as Trustee; and


 


(3)                                 the Trustee has failed to institute such proceeding within
60 days after such notice, request and offer, and has not received from the
Holders of a majority in aggregate principal amount of the Securities then
outstanding a direction inconsistent with such request within 60 days after
such notice, request and offer.


 


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


 


Section 7.08. 
Rights of Holders to Receive Payment and to Convert.  Each
Holder shall have the right to receive payment or delivery, as the case may be,
of (a) the principal (including the Fundamental Change Repurchase Price) of, (b)
accrued and unpaid interest, if any, on, and (c) the consideration due upon
conversion of, its Securities, on or after the respective due dates expressed
or provided for in this Indenture, or to institute suit for the enforcement of
any such payment or delivery, as the case may be, and such right to receive
payment or delivery, as the case may be, on or after such respective dates
shall not be impaired or affected without the consent of such Holder.


 


Section 7.09.  Collection
Suit By Trustee.  If an Event of Default in the payment of principal or
interest specified in clause (1) or (2) of Section 7.01 occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or another obligor on the Securities for
the whole amount of principal and accrued interest remaining unpaid, together
with, to the extent that payment of such interest is lawful, interest on
overdue principal and on overdue installments of interest, in each case at the
rate per annum borne by the Securities plus one percent 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 7.10.  Trustee May
File Proofs of Claim.  The Trustee may 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 allowed in any judicial proceedings relative to the Company (or any
other obligor on the Securities), its creditors or its property and shall be
entitled and empowered to collect and receive any money or other property
payable or deliverable on any such claims and to distribute the same, 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, and to the extent that such
payment of the reasonable compensation, expenses, disbursements and advances in
any such proceedings shall be denied for any reason, payment of the same shall
be secured by a lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other property which the Holders 


 


50

















 


may be entitled to receive in such
proceedings, 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, on behalf of any Holder, to
authorize, accept or adopt any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.


 


Section 7.11.  Priorities.  If the Trustee collects any money
pursuant to this Article 7, it shall pay out the money in the following order:


 


FIRST, to the Trustee for amounts
due under Section 8.07;


 


SECOND, to Holders for amounts due
and unpaid on the Securities for principal and interest, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Securities 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 pursuant to this Section 7.11.


 


Section 7.12.  Undertaking For Costs.  In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant 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 7.12 does not apply
to a suit made by the Trustee, a suit by a Holder pursuant to Section 7.07, or
a suit by Holders of more than 10% in aggregate principal amount of the
Securities then outstanding.


 


ARTICLE
8

TRUSTEE


 


Section 8.01.  Duties of Trustee.  (a)  If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
as a prudent Person would exercise or use under the circumstances in the conduct
of his or her own affairs.


 


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


 


(i)                                     the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and


 


51

















 


(ii)                                  in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. The Trustee,
however, shall examine any certificates and opinions which by any provision
hereof are specifically required to be delivered to the Trustee 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 subsection (b) of
this Section 8.01;


 


(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 7.06.


 


(d)                       No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability unless the Company or
Holders shall have offered to the Trustee security and indemnity satisfactory
to it against such cost or liability. The Trustee shall be under no obligation
to exercise any of its rights and powers under this Indenture at the request of
any Holders, unless such Holder shall have offered to the Trustee security and
indemnity satisfactory to it against any loss, liability or expense.


 


(e)                        Every provision of this Indenture that in any way relates to
the Trustee is subject to subsections (a), (b), (c) and (d) of this Section 8.01.


 


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


 


Section 8.02.  Rights of Trustee.  Subject to Section 8.01:


 


(a)                       The Trustee may rely conclusively on any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.


 


(b)                       Before the Trustee acts or refrains from acting, it may
require an Officers’ Certificate or an Opinion of Counsel, which shall conform
to Section 11.04(b). The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officers’ Certificate or
Opinion of Counsel.


 


52














 


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


 


(d)                       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 conferred upon it by this Indenture.


 


(e)                        The Trustee may consult with counsel of its selection, and
the advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any such
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 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 pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to the Trustee
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction.


 


(g)                        The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company, personally or by
agent or attorney at the sole cost of the Company and shall incur no liability
or additional liability of any kind by reason of such inquiry or investigation.


 


(h)                       The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer has actual knowledge
thereof or unless written notice of any event which is in fact such a default
is received by the Trustee at the Corporate Trust Office, and such notice
references the Securities and this Indenture.


 


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


 


(j)                          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.


 


(k)                       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.


 


53

















 


Section 8.03.  Individual Rights of
Trustee.  The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or an Affiliate of the Company with the
same rights it would have if it were not Trustee. However, in the event that
the Trustee acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the SEC for permission to continue as trustee or
resign. Any Agent may do the same with like rights and duties. The Trustee is
also subject to Section 8.10 and 8.11.


 


Section 8.04.  Trustee’s Disclaimer.  The Trustee shall not be
responsible for and makes no representation as to the validity, priority or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company’s use of the proceeds from the Securities or any money paid to the
Company or upon the Company’s direction under any provision of this Indenture,
it shall not be responsible for the use or application of any money received by
any Paying Agent (other than the Trustee) and it shall not be responsible for
any statement or recital herein or any statement in the Securities or any other
document in connection with the sale of the Securities or pursuant to this
Indenture other than its certificate of authentication.


 


Section 8.05.  Notice of Default or Events of
Default.  If a Default or an
Event of Default occurs and is continuing and if it is known to the Trustee,
the Trustee shall mail to each Holder notice of the Default or Event of Default
within 90 days after it occurs. However, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith determines
that withholding notice is in the interests of Holders, except in the case of a
Default or an Event of Default in (a) payment of the principal of or interest
on any Security or (b) payment or delivery, as the case may be, of the
consideration due upon conversion.


 


Section 8.06.  Reports by Trustee to
Holders.  If a report is
required by TIA Section 313, within 60 days after each May 15, beginning with
the May 15 following the date of this Indenture, and for so long as Securities
remain outstanding, the Trustee shall mail to each Holder a brief report dated
as of such May 15 that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months preceding
the reporting date, no report need be transmitted). The Trustee also shall
comply with TIA Section 313(b)(2) and (c).


 


A copy of each report at the time of
its mailing to Holders shall be mailed to the Company and filed with the SEC
and each stock exchange, if any, on which the Securities are listed. The
Company shall promptly notify the Trustee whenever the Securities become listed
on any stock exchange or listed or admitted to trading on any quotation system
and any changes in the stock exchanges or quotation systems on which the
Securities are listed or admitted to trading and of any delisting thereof.


 


Section 8.07.  Compensation and Indemnity.  The Company shall pay to the
Trustee from time to time such compensation (as agreed to from time to time by
the Company and the Trustee in writing) for its services (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust). The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, expenses and advances incurred
or made by it in addition to the compensation for its services. Such expenses
may include the reasonable compensation, disbursements and expenses of the
Trustee’s agents and counsel.


 


54

















 


The Company shall indemnify each of
the Trustee and any predecessor Trustee against any and all losses, liabilities,
damages, claims or expenses incurred by it arising out of or in connection with
the acceptance or administration of its duties under this Indenture, including
the costs and expenses (including taxes, other than taxes based upon, measured
by or determined by the income of the Trustee) of enforcing this Indenture
against the Company (including this Section 8.07) and defending itself against
any claim (whether asserted by the Company or any Holder or any other Person)
or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The Trustee, upon receiving written notice thereof,
shall notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company
of its obligations hereunder. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its written consent, which
consent shall not be unreasonably withheld.


 


The Company need not reimburse the
Trustee for any expense or indemnify it against any loss or liability incurred
by it resulting from its negligence or bad faith.


 


To secure the Company’s payment
obligations in this Section 8.07, the Trustee shall have a senior claim to
which the Securities are hereby made subordinate on all money or property held
or collected by the Trustee, except such money or property held in trust to pay
the principal of, interest on, and amounts due upon conversion of, the
Securities.


 


When the Trustee incurs expenses or
renders services after an Event of Default specified in clause (7) or (8) of Section
7.01 occurs, the expenses and the compensation for the services (including the
fees and expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law. The obligations of the
Company under this Section 8.07 shall survive the termination or satisfaction
and discharge of this Indenture or the resignation or removal of the Trustee
for any reason.


 


Section 8.08.  Replacement of Trustee.  The Trustee may resign by so
notifying the Company in writing. The Holders of a majority in aggregate
principal amount of the Securities then outstanding may remove the Trustee by
so notifying the Trustee and the Company in writing and may, with the Company’s
written consent, appoint a successor Trustee. The Company may remove the Trustee
if:


 


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


 


(2)                                 the Trustee is adjudged a bankrupt or an insolvent or relief
is entered with respect to the Trustee under any Bankruptcy Law;


 


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


 


(4)                                 the Trustee becomes incapable of acting.


 


If the Trustee resigns or is removed
or if a vacancy exists in the office of Trustee for any reason, the Company
shall promptly appoint a successor Trustee. The resignation or removal of a 


 


55

















 


Trustee shall not be effective until
a successor Trustee shall have delivered the written acceptance of its
appointment as described below.


 


If a successor Trustee does not take
office within 60 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of 10% in principal amount of the
Securities then outstanding may petition any court of competent jurisdiction
for the appointment of a successor Trustee at the expense of the Company.


 


If the Trustee fails to comply with Section
8.10, any Holder who has been a Holder for at least six months may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.


 


A successor Trustee shall deliver a
written acceptance of its appointment to the retiring Trustee and to the
Company. Immediately after that, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee (provided
that all sums owing to the Trustee hereunder have been paid) and be released
from its obligations (exclusive of any liabilities that the retiring Trustee
may have incurred while acting as Trustee) hereunder, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder.


 


A retiring Trustee shall not be
liable for the acts or omissions of any successor Trustee after its succession.


 


Notwithstanding 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, Etc.  If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all of its corporate
trust assets (including the administration of this Indenture) to, another
corporation, by sale or otherwise, the resulting, surviving or transferee
corporation, without any further act, shall be the successor Trustee, provided such transferee corporation shall qualify and be
eligible under Section 8.10. Such successor Trustee shall promptly mail notice
of its succession to the Company and each Holder.


 


Section 8.10.  Eligibility;
Disqualification.  The Trustee
shall always satisfy the requirements of paragraphs (1), (2) and (5) of TIA Section
310(a). The Trustee (or its parent holding company) shall have a combined
capital and surplus of at least $50,000,000. If at any time the Trustee shall
cease to satisfy any such requirements, it shall resign immediately in the
manner and with the effect specified in this Article 8. The Trustee shall be
subject to the provisions of TIA Section 310(b). Nothing herein shall prevent
the Trustee from filing with the SEC the application referred to in the
penultimate paragraph of TIA Section 310(b).


 


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


 


56

















 


ARTICLE
9

SATISFACTION AND DISCHARGE OF INDENTURE


 


Section 9.01.  Satisfaction And Discharge Of
Indenture.  This Indenture
shall upon request of the Company contained in an Officers’ Certificate cease
to be of further effect, and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when (a) (i) all Securities theretofore authenticated and delivered
(other than Securities that have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.07) have been delivered to the
Trustee for cancellation; or (ii) the Company has deposited with the Trustee or
delivered to Holders, as applicable, after the Securities have become due and
payable, whether at the Maturity Date, any Fundamental Change Repurchase Date,
upon conversion or otherwise, cash, shares of Common Stock or a combination
thereof, as applicable, solely to satisfy the Company’s Conversion Obligation,
sufficient to pay all of the outstanding Securities and all other sums due and
payable under this Indenture by the Company; and (b) the Company has delivered
to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.


 


Notwithstanding the satisfaction and
discharge of this Indenture, the obligations of the Company to the Trustee
under Section 8.07 shall survive and, if money shall have been deposited with
the Trustee pursuant to paragraph (a)(ii) of this Section 9.01, the provisions
of Section 9.02 and Section 9.04 shall survive until the Securities have been
paid in full.


 


Section 9.02.  Application of Trust
Money.  Subject to the provisions
of Section 9.03, the Trustee or a Paying Agent shall hold in trust, for the
benefit of the Holders, all money and shares of Common Stock deposited with it
pursuant to Section 9.01 and shall apply the deposited money and shares of
Common Stock in accordance with this Indenture and the Securities to the
payment or delivery, as the case may be, of the principal of, and interest on,
and the consideration due upon conversion of, the Securities; provided that such money and shares of Common Stock need not
be segregated from other funds except to the extent required by law.


 


Section 9.03.  Repayment to Company.  The Trustee and each Paying Agent
shall promptly pay to the Company upon request any excess money or shares of
Common Stock (i) deposited with them pursuant to Section 9.01 and (ii) held by
them at any time.


 


The Trustee and each Paying Agent
shall pay to the Company upon request any money or shares of Common Stock held
by them for the payment or delivery, as the case may be, of principal, interest
or amounts due upon conversion that remains unclaimed for two years after a
right to such money or shares of Common Stock has matured; provided,
however, that the Trustee or such Paying
Agent, before being required to make any such payment or delivery, may at the
expense of the Company cause to be mailed to each Holder entitled to such money
or shares of Common Stock notice that such money or shares of Common Stock
remains unclaimed and that after a date specified therein, which shall be at
least 30 days from the date of such mailing, any unclaimed balance of such
money or shares of Common Stock then remaining will be repaid or delivered to
the Company. After payment or delivery to the Company, Holders entitled to
money or share of Common Stock must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another
Person. In the absence 


 


57

















 


of a written request from the
Company to return unclaimed funds or shares to the Company, the Trustee shall
from time to time deliver all unclaimed funds or shares to or as directed by
applicable escheat authorities, as determined by the Trustee in its sole
discretion, in accordance with the customary practices and procedures of the
Trustee. Any unclaimed funds or shares held by the Trustee pursuant to this Section
9.03 shall be held uninvested and without any liability for interest.


 


Section 9.04.  Reinstatement.  If the Trustee or any Paying Agent
is unable to apply any money or shares of Common Stock in accordance with Section
9.02 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 9.01 until such time as the Trustee or
such Paying Agent is permitted to apply all such money or shares of Common Stock
in accordance with Section 9.02; provided, however, that if the Company has made any payment or
delivery, as the case may be, of the principal of, interest on, or amounts due
upon conversion of, any Securities because of the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
to receive any such payment or delivery from the money or shares of Common
Stock held by the Trustee or such Paying Agent.


 


ARTICLE
10

AMENDMENTS, SUPPLEMENTS AND WAIVERS


 


Section 10.01.  Without Consent of
Holders.  The Company and the
Trustee may amend or supplement this Indenture or the Securities without notice
to, or the consent of, any Holder:


 


(a)                       to cure any ambiguity, defect or inconsistency that does not
adversely affect Holders;


 


(b)                       to provide for the assumption by a successor corporation of
the Company’s obligations under this Indenture pursuant to Article 6;


 


(c)                        to add guarantees with respect to the Securities;


 


(d)                       to secure the Company’s obligations with respect to the
Securities;


 


(e)                        to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power conferred upon the Company;


 


(f)                         to make any other change that does not adversely affect the
rights of any Holder;


 


(g)                        to comply with any requirement of the SEC in connection with
the qualification of this Indenture under the TIA; and


 


(h)                       conform the provisions of this Indenture to the “Description
of Notes” section in the preliminary prospectus relating to the offering and
sale of the Securities, as supplemented by the related pricing term sheet.


 


58

















 


Upon the request of the Company
accompanied by a resolution of its Board of Directors authorizing the execution
of any such amended or supplemental indenture, and upon receipt by the Trustee
of the documents described in Section 10.02, the Trustee shall join with the
Company in the execution of any amended or supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee
shall not be obligated to enter into such amended or supplemental indenture
that affects its own rights, duties or immunities under this Indenture or
otherwise.


 


Section 10.02.  With Consent of Holders.  The Company and the Trustee may
amend or supplement this Indenture or the Securities with the written consent
of the Holders of at least a majority in aggregate principal amount of the Securities
then outstanding. The Holders of at least a majority in aggregate principal
amount of the Securities then outstanding may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Securities
without notice to any Holder. However, notwithstanding the foregoing but
subject to Section 10.04, without the written consent of each Holder affected,
an amendment, supplement or waiver, including a waiver pursuant to Section 7.05,
may not:


 


(a)                       change the stated maturity of the principal of, or interest
on, any Security;


 


(b)                       reduce the principal amount of or interest on any Security;


 


(c)                        reduce the amount of principal payable upon acceleration of
the maturity of any Security;


 


(d)                       change the place or currency of payment of principal of, or
interest on, any Security;


 


(e)                        impair the right to institute suit for the enforcement of
any payment on, or with respect to, any Security;


 


(f)                         modify the provisions with respect to the Company’s
obligation to repurchase Securities pursuant to Article 3 upon a Fundamental
Change in a manner adverse to Holders;


 


(g)                        change the ranking of the Securities;


 


(h)                       adversely affect the right of Holders to convert Securities
other than as provided in or under Article 4 of this Indenture:


 


(i)                           reduce the percentage in principal amount of outstanding
Securities required for modification or amendment of this Indenture;


 


(j)                          reduce the percentage in principal amount of outstanding
Securities necessary for waiver of compliance with certain provisions of this
Indenture or the waiver of certain defaults under this Indenture; or


 


(k)                       modify provisions of this Section 10.02 or Section 7.05 in a
manner adverse to the Holders.


 


59

















 


It shall not be necessary for the
consent of the Holders under this Section 10.02 to approve the particular form
of any proposed amendment, supplement or waiver, but it shall be sufficient if
such consent approves the substance thereof.


 


Upon the request of the Company
accompanied by a resolution of its Board of Directors authorizing the execution
of any such amended or supplemental indenture, and upon the filing with the
Trustee of evidence satisfactory to the Trustee of the consent of the Holders
as aforesaid, and upon receipt by the Trustee of the documents described in Section
11.04, the Trustee shall join with the Company in the execution of such amended
or supplemental indenture unless such amended or supplemental indenture
directly affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental indenture.


 


After an amendment, supplement or
waiver under this Section 10.02 becomes effective, the Company shall mail to
the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such amendment, supplement or waiver.


 


Section 10.03.  Compliance With Trust
Indenture Act.  Every
amendment to or supplement of this Indenture or the Securities shall comply
with the TIA as in effect at the date of such amendment or supplement.


 


Section 10.04.  Revocation and Effect of
Consents.  Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder’s
Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to its Security
or portion of a Security if the Trustee receives the notice of revocation
before the date the amendment, supplement or waiver becomes effective.


 


After an amendment, supplement or
waiver becomes effective, it shall bind every Holder, unless it makes a change
described in any of clauses (a) through (k) of Section 10.02. In that case the
amendment, supplement or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder’s Security.


 


Section 10.05.  Notation on or Exchange of
Securities.  The Trustee may
place an appropriate notation about an amendment, supplement or waiver on any
Security thereafter authenticated. The Company in exchange for all Securities
may issue and the Trustee shall, upon receipt of a Company Order, authenticate
new Securities that reflect the amendment, supplement or waiver.  Failure to make the appropriate notation or
issue a new Security shall not affect the validity and effect of such
amendment, supplement or waiver.


 


Section 10.06.  Trustee to Sign Amendments, Etc.  The Trustee shall sign any
amendment or supplemental indenture authorized pursuant to this Article 10 if
the amendment or supplemental indenture does not adversely affect the rights,
duties, liabilities or immunities of 


 


60

















 


the Trustee. If it does, the Trustee
may, in its sole discretion, but need not sign it. In signing or refusing to
sign such amendment or supplemental indenture, the Trustee shall be provided
with and, subject to Section 8.01, shall be fully protected in relying upon in
addition to the documents required by Section 11.04, an Officers’ Certificate
and an Opinion of Counsel stating that such amendment or supplemental indenture
is authorized or permitted by this Indenture. The Company may not sign an
amendment or supplement indenture until the Board of Directors approves it.


 


Section 10.07.  Effect of Supplemental
Indentures.  Upon the
execution of any supplemental indenture under this Article 10, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.


 


ARTICLE
11

MISCELLANEOUS


 


Section 11.01.  Trust Indenture Act
Controls.  If any provision of
this Indenture limits, qualifies or conflicts with the duties imposed by TIA Section
318(c), such imposed duties shall control.


 


Section 11.02.  Notices.  Any notice or communication to the
Company or the Trustee under this Indenture shall be given in writing and
delivered in Person or by first-class mail (registered or certified, return
receipt requested), facsimile transmission (confirmed by delivery in Person or
by first-class mail (registered or certified, return receipt requested)) or
guaranteed overnight courier, as follows:


 


If to the Company, to:


 


Cubist Pharmaceuticals, Inc.


65 Hayden Avenue


Lexington, Massachusetts 02421


Facsimile No.: (781) 861-1150


Attention: Chief Financial Officer


 


With a copy to:


 


Ropes & Gray LLP


Prudential Tower


800 Boylston Street


Boston, Massachusetts 02199


Facsimile No.: (617) 951-7150


Attention: Paul M. Kinsella, Esq.


 


If to the Trustee, to:


 


61

















 


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


470 Atlantic Avenue, 4th Floor


Boston, Massachusetts 02210


Facsimile No.: (617) 273-8001


Attention: Corporate Trust Administration


 


All notices and communications
(other than those sent to Holders) shall be deemed to have been duly given at
the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, if mailed by first-class mail (registered or
certified, return receipt requested); upon acknowledgment of receipt, if
transmitted by facsimile; and the next Business Day after timely delivery to
the courier, if sent by guaranteed overnight courier.


 


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


 


Any notice or communication mailed
to a Holder shall be mailed by first-class mail or delivered by guaranteed
overnight courier or by other electronic means to it at its address shown on
the register kept by the Primary Registrar. Any notice or communication shall
also be so mailed to any Person described in TIA Section 313(c), to the extent
required by the TIA.


 


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 to a Holder is
mailed in the manner provided above, it is duly given, whether or not the
addressee receives it.


 


If the Company mails a notice or
communication to Holders, it shall mail a copy to the Trustee and each Agent at
the same time.


 


Section 11.03.  Communications by Holders With
Other Holders.  Holders may
communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Securities. The Company, the Trustee,
the Registrar and any other Person shall have the protection of TIA Section 312(c).


 


Section 11.04.  Certificate and Opinion as to
Conditions Precedent.


 


(a)                       Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company shall furnish to
the Trustee at the request of the Trustee:


 


(i)                                     an Officers’ Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers, all conditions
precedent (including any 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


 


(ii)                                  an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel, all
such conditions precedent (including any covenants, compliance with which
constitutes a condition precedent) have been complied with.


 


62

















 


(b)                       Each Officers’ Certificate and Opinion of Counsel with
respect to compliance with a condition or covenant provided for in this
Indenture shall include:


 


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


 


(ii)                                  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;


 


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


 


(iv)                              a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with;


 


provided,
however, that with respect to matters of
fact an Opinion of Counsel may rely on an Officers’ Certificate or certificates
of public officials.


 


Section 11.05.  Record Date for Vote or Consent
of Holders.  The Company (or,
in the event deposits have been made pursuant to Section 9.01, the Trustee) may
set a record date for purposes of determining the identity of Holders entitled
to vote or consent to any action by vote or consent authorized or permitted
under this Indenture, which record date shall not be more than 30 days prior to
the date of the commencement of solicitation of such action. Notwithstanding
the provisions of Section 10.04, if a record date is fixed, those Persons who
were Holders of Securities at the close of business on such record date (or
their duly designated proxies), and only those Persons, shall be entitled to
take such action by vote or consent or to revoke any vote or consent previously
given, whether or not such Persons continue to be Holders after such record
date.


 


Section 11.06.  Rules By Trustee, Paying
Agent, Registrar And Conversion Agent.  The
Trustee may make reasonable rules (not inconsistent with the terms of this
Indenture) for action by or at a meeting of Holders. Any Registrar, Paying
Agent or Conversion Agent may make reasonable rules for its functions.


 


Section 11.07.  Legal Holidays.  If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.


 


Section 11.08.  Governing Law.  THIS INDENTURE AND THE SECURITIES,
AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS
INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.


 


63

















 


Section 11.09.  No Adverse Interpretation of
Other Agreements.  This
Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary of the Company. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.


 


Section 11.10.  No Personal Liability of
Directors, Officers, Employees or Stockholders. 
No past, present or future director, officer, employee,
incorporator or stockholder of the Company, as such, shall have any liability
for any obligations of the Company under the Securities, this Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Securities.


 


Section 11.11.  Successors.  All agreements of the Company in
this Indenture and the Securities shall bind its successor. All agreements of
the Trustee in this Indenture shall bind its successor.


 


Section 11.12.  Multiple Counterparts.  The parties may sign multiple
counterparts of this Indenture. Each signed counterpart shall be deemed an
original, but all of them together represent the same agreement.


 


Section 11.13.  Separability.  In case any provisions in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.


 


Section 11.14.  Tax Treatment.  The Company agrees, and by
acceptance of beneficial ownership in the Securities each beneficial holder of
the Securities will be deemed to have agreed, for United States federal income
tax purposes to treat the Securities as indebtedness that is not subject to the
contingent payment debt instrument regulations under Treas. Reg. Sec. 1.1275-4.


 


Section 11.15.  Table of Contents, Headings, Etc.  The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.


 


Section 11.16.  Force Majeure.  In no event shall the Trustee be
responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work
stoppages, 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, communications or computer (software and hardware)
services; provided that the Trustee shall use
reasonable efforts consistent with accepted practices in the banking industry
to resume performance as soon as practicable under the circumstances.


 


Section 11.17.  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 


 


64

















 


PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.


 


[SIGNATURE PAGE FOLLOWS]


 


65

















 


IN WITNESS WHEREOF, the parties
hereto have hereunto set their hands as of the date and year first above
written.


 


	
   

  	
  CUBIST PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


	
   

  	
  THE BANK
  OF NEW YORK MELLON

  TRUST COMPANY, N.A., AS

  TRUSTEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


66














 


EXHIBIT A


 


[FORM OF
FACE OF SECURITY]


 


[UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY 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 DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND,
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.](1)


 






(1) 
This bracketed text should be included only if the
Security is a Global Security.


 


A-1

















 


CUBIST
PHARMACEUTICALS, INC.


 


[  .    ]%
CONVERTIBLE SENIOR NOTES DUE 2017


 


	
  No. [    ]

  	
  [Initially](2) $

  



 


CUSIP No.: [              ]


 


Cubist Pharmaceuticals, Inc., a
Delaware corporation (the “Company”, which
term shall include any successor corporation under the Indenture referred to on
the reverse hereof), promises to pay to [Cede & Co.](3) [            ], or registered assigns, the
principal sum [of                    Dollars ($                  )] [as set forth in the “Schedule of
Exchanges of Securities” attached hereto](4) on November 1, 2017, and interest
thereon as set forth below.


 


This Security shall bear interest at
the rate of [  .    ]% per year from [                ], 20[    ], or from the most recent date to which
interest had been paid or provided for to, but excluding, the next scheduled
Interest Payment Date until November 1, 2017. 
Interest is payable semi-annually in arrears on each May 1 and November
1, commencing on May 1, 2010, to Holders of record at the close of business on
the preceding April 15 and October 15 (whether or not such day is a Business
Day), respectively.  Additional Interest
will be payable as set forth in Section 7.04 of the within-mentioned Indenture,
and any reference to interest on, or in respect of, any Security therein shall
be deemed to include Additional Interest if, in such context, Additional
Interest is, was or would be payable pursuant to Section 7.04 and any express
mention of the payment of Additional Interest in any provision therein shall
not be construed as excluding Additional Interest in those provisions thereof
where such express mention is not made. 
Interest will be computed on the basis of a 360-day year of twelve
30-day months.


 


Any Defaulted Amounts shall accrue
interest per annum at the rate borne by the Securities plus
one percent, subject to the enforceability thereof under applicable law, from,
and including, the relevant payment date to, but excluding, the date on which
such Defaulted Amounts shall have been paid by the Company, at its election, in
accordance with Section 2.02(e) of the Indenture.


 


The Company shall pay the principal
of and interest on this Security so long as such Security is a Global Security,
in immediately available funds to the Depositary or its nominee, as the case
may be, as the registered Holder of such Security.  As provided in and subject to the provisions
of the Indenture, the Company shall pay the principal of any Securities (other
than Securities that are Global Securities) at the office or agency designated
by the Company for that purpose.  The
Company has initially designated the Trustee as Paying Agent, Primary
Registrar, Securities Custodian and Conversion Agent and each of the Corporate
Trust Office of the 


 






(2) This
bracketed text should be included only if the Security is a Global Security.


 


(3) 
This bracketed text should be included only if the
Security is a Global Security.


 


(4) 
This bracketed text should be included only if the
Security is a Global Security.


 


A-2

















 


Trustee and the office or agency of
the Trustee in the Borough of Manhattan, The City of New York, as an office or
agency of the Company for each of the aforesaid purposes.


 


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


 


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


 


[SIGNATURE PAGE FOLLOWS]


 


A-3

















 


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


 


	
   

  	
  CUBIST PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


	
   

  	
  Attest:

  
	
   

  	
   

  
	
   

  	
  TRUSTEE’S
  CERTIFICATE OF

  AUTHENTICATION

  
	
   

  	
   

  
	
   

  	
  This is one of the
  Securities referred to

  in the within-mentioned Indenture.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK
  OF NEW YORK TRUST

  COMPANY, N.A., AS TRUSTEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


A-4

















 


[FORM OF
REVERSE OF SECURITY]


 


CUBIST
PHARMACEUTICALS, INC.

[  .     
]% CONVERTIBLE SENIOR NOTES DUE 2017


 


This Security is one of a duly
authorized issuance of Securities of the Company, designated as its [  .    ]%
Convertible Senior Notes due 2017[    ]
(the “Securities”), limited in aggregate
principal amount of up to $[                 
] [(or such greater amount necessary to reflect the exercise by the
Underwriters of their option to purchase additional Securities in compliance
with the Underwriting Agreement, dated October [    ],
2010, among the Company and the Underwriters (the “Underwriting
Agreement”) but not to exceed $[                  ] in aggregate principal
amount)] all issued or to be issued under and pursuant to an Indenture dated as
of October [    ], 2010 (the “Indenture”), between the Company and The Bank of New York
Mellon Trust Company, N.A. (the “Trustee”), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the Holders of the
Securities.  Additional Securities may be
issued in an unlimited aggregate principal amount, subject to certain
conditions specified in the Indenture.


 


In case an Event of Default, as
defined in the Indenture, shall have occurred and be continuing, the principal
of, and interest on, all Securities may be declared, by either the Trustee or
Holders of at least 25% in aggregate principal amount of Securities then
outstanding, and upon said declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions and certain exceptions
set forth in the Indenture.


 


Subject to the terms and conditions
of the Indenture, the Company will make all payments and deliveries in respect
of the Fundamental Change Repurchase Price and the principal amount on the
Maturity Date, as the case may be, to the Holder who surrenders a Security to a
Paying Agent to collect such payments in respect of the Security.  The Company will pay cash amounts in money of
the United States that at the time of payment is legal tender for payment of
public and private debts.


 


The Indenture contains provisions
permitting the Company and the Trustee in certain circumstances, without the
consent of the Holders of the Securities, and in certain other circumstances,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time outstanding, evidenced as in the
Indenture provided, to execute supplemental indentures modifying the terms of
the Indenture and the Securities as described therein.  It is also provided in the Indenture that,
subject to certain exceptions, the Holders of a majority in aggregate principal
amount of the Securities at the time outstanding may on behalf of the Holders
of all of the Securities waive any past Default or Event of Default under the
Indenture and its consequences.


 


No reference herein to the Indenture
and no provision of this Securities or of the Indenture shall alter or impair
the obligation of the Company, which is absolute and unconditional, to pay the
principal (including the Fundamental Change Repurchase Price, if applicable) of
and accrued and unpaid interest on this Security at the place, at the respective
times, at the rate and in the lawful money herein prescribed.


 


A-5

















 


The Securities are issuable in
registered form without coupons in denominations of $1,000 principal amount and
integral multiples thereof.  At the
office or agency of the Company referred to on the face hereof, and in the
manner and subject to the limitations provided in the Indenture, Securities may
be exchanged for a like aggregate principal amount of Securities of other
authorized denominations, without payment of any service charge but, if
required by the Company or Trustee, with payment of a sum sufficient to cover
any transfer or similar tax that may be imposed in connection therewith as a
result of the name of the Holder of the new Securities issued upon such
exchange of Securities being different from the name of the Holder of the old
Securities surrendered for such exchange.


 


The Securities are not subject to
redemption through the operation of any sinking fund or otherwise.


 


Upon the occurrence of a Fundamental
Change, the Holder has the right, at such Holder’s option, to require the
Company to repurchase for cash all of such Holder’s Securities or any portion
thereof (in principal amounts of $1,000 or integral multiples thereof) on the
Fundamental Change Repurchase Date at a price equal to the Fundamental Change
Repurchase Price.


 


Subject to the provisions of the
Indenture, the Holder hereof has the right, at its option, during certain
periods and upon the occurrence of certain conditions specified in the
Indenture, prior to the close of business on the Business Day immediately
preceding the Maturity Date, to convert any of its Securities or portion
thereof that is $1,000 or an integral multiple thereof, into cash, shares of
Common Stock or a combination of cash and shares of Common Stock, as
applicable, at the Conversion Rate specified in the Indenture, as adjusted from
time to time as provided in the Indenture.


 


All terms used in this Security but
not specifically defined herein are defined in the Indenture and are used
herein as so defined.


 


In the case of any conflict between
the provisions of this Security and the Indenture, the provisions of the
Indenture shall control.


 


THIS SECURITY, AND ANY CLAIM,
CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SECURITY, SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF
NEW YORK 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.


 


The Company will furnish to any
Holder, upon written request and without charge, a copy of the Indenture.
Requests may be made to: Cubist Pharmaceuticals, Inc., 65 Hayden Avenue,
Lexington, MA 02421, Attention: Investor Relations.


 


A-6














 


ABBREVIATIONS AND DEFINITIONS


 


Customary abbreviations may be used
in the name of the 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)


 


UGMA (= Uniform Gifts to Minors
Act).


 


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


 


A-7

















 


ASSIGNMENT
FORM


 


To assign this Security, fill in the
form below:


 


I or we assign and transfer this
Security to:


 


	
   

  	
   

  
	
  (Insert assignee’s social security
  or tax I.D. number)

  	
   

  



 


 


 


 


	
   

  	
   

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

  	
   

  



 


and irrevocably appoint


 


	
   

  	
   

  
	
  agent to transfer this Security on
  the books of the Company. The agent may substitute another to act for him or
  her.

  	
   

  



 


	
  Date:

  	
   

  	
  Your Signature:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Sign exactly as your name appears on the
  other side of this Security)

  
	
   

  	
   

  	
   

  
	
  * Signature guaranteed by:

  	
   

  	
   

  



 


 


	
  By:

  	
   

  	
   

  



 






*                                         The signature must be guaranteed by an institution which is a member
of one of the following recognized signature guaranty programs: (i) the
Securities Transfer Agent Medallion Program (STAMP); (ii) the New York Stock
Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion Program
(SEMP); or (iv) such other guaranty program acceptable to the Trustee.


 


A-8

















 


CONVERSION NOTICE


 


To convert this Security into cash, shares of
Common Stock or a combination of cash and shares of Common Stock, as
applicable, check the box: o


 


To convert only part of this Security, state
the principal amount to be converted (which must be $1,000 or a integral
multiple of $1,000): $


 


If you want the stock certificate made out in
another Person’s name, fill in the form below:


 


	
   

  	
   

  
	
  (Insert assignee’s social security or tax
  I.D. number)

  	
   

  



 


 


 


 


	
   

  	
   

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

  	
   

  



 


 


	
  Date:

  	
   

  	
  Your Signature:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Sign exactly as your name appears
  on the other side of this Security)

  
	
   

  	
   

  	
   

  
	
  * Signature guaranteed by:

  	
   

  	
   

  



 


 


	
  By:

  	
   

  	
   

  



 






*                                         The signature must be guaranteed by an institution which is
a member of one of the following recognized signature guaranty programs: (i)
the Securities Transfer Agent Medallion Program (STAMP); (ii) the New York
Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion
Program (SEMP); or (iv) such other guaranty program acceptable to the Trustee.


 


A-9

















 


REPURCHASE EXERCISE NOTICE UPON A
FUNDAMENTAL CHANGE


 


To: 
Cubist Pharmaceuticals, Inc.


 


The undersigned registered owner of this
Security hereby irrevocably acknowledges receipt of a notice from Cubist
Pharmaceuticals, Inc. (the “Company”) as to
the occurrence of a Fundamental Change with respect to the Company and requests
and instructs the Company to repurchase the entire principal amount of this
Security, or the portion thereof (which is $1,000 or an integral multiple
thereof) below designated, in accordance with the terms of the Indenture referred
to in this Security at the Fundamental Change Repurchase Price, to the
registered Holder hereof.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Signature(s)

  



 


 


	
   

  	
   

  	
   

  	
  Signature(s) must be guaranteed by a
  qualified guarantor institution with membership in an approved signature
  guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange Act
  of 1934.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Signature Guaranty

  



 


 


Principal amount to be repurchased
(in an integral multiple of $1,000, if less than all):


 


NOTICE: The signature to the
foregoing Election must correspond to the name as written upon the face of the
Security in every particular, without alteration or any change whatsoever.


 


A-10

















 


SCHEDULE OF
EXCHANGES OF SECURITES(5)


 


The following exchanges, repurchases
or conversions of a part of this Global Security have been made:


 


	
  Date of Exchange,

  Repurchase or

  Conversion

  	
   

  	
  Amount of Decrease

  in Principal Amount

  of this Global

  Security

  	
   

  	
  Amount of Increase

  in Principal Amount

  of this Global

  Security

  	
   

  	
  Principal Amount of

  this Global Security

  Following Such

  Decrease or

  Increase

  	
   

  	
  Signature of

  Authorized

  Signatory of

  Securities Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






(5) 
This schedule should be included only if the Security
is a Global Security.