Exhibit
4.1


 




 


 





CUBIST PHARMACEUTICALS, INC.


2.50% CONVERTIBLE SENIOR
NOTES DUE 2017


 






 


INDENTURE


DATED AS OF OCTOBER 25, 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

  	
  14

  
	
  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

  	
  42

  
	
   

  
	
  ARTICLE 5

  
	
  COVENANTS

  
	
   

  
	
  Section 5.01. Payment on the Securities

  	
  43

  
	
  Section 5.02. SEC Reports

  	
  43

  
	
  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

  	
  44

  
	
   

  
	
  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

  	
  47

  
	
  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

  	
  50

  
	
  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

  	
  53

  
	
  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

  	
  56

  
	
  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

  	
  64

  
	
  Section 11.08. Governing Law

  	
  64

  
	
  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

  	
  65

  



 


iii

















 


EXHIBIT


 


	
  Exhibit A

  	
  Form of Security

  	
  A-1

  



 


iv

















 


INDENTURE, dated as of October 25,
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 2.50% 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(c).  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 who 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, including any vice
president, assistant vice president, assistant secretary, assistant treasurer
or any other officer of the Trustee who customarily performs functions similar
to those performed by the Persons who at the time shall be such officers,
respectively, or to whom 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 DTC, 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.


 


“Specified
Dollar Amount” means the maximum cash amount per $1,000 principal
amount of Securities to be received upon conversion as specified in the Settlement
Notice related to any converted Securities.


 


“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


 


7

















 


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 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.


 


“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)

  



 


8

















 


	
  “Conversion
  Notice”

  	
   

  	
  4.02(b)

  
	
  “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(c)

  
	
  “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)

  
	
  “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 $450,000,000 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 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


 


12

















 


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
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


 


13

















 


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 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


 


14

















 


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 the 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 the 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 the
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 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).


 


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.


 


15

















 


(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.


 


Neither the Trustee nor any Agent
shall have any responsibility for any actions taken or not taken by the
Depositary.


 


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, exchange, 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 clause (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 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


 


20

















 


Record Date and on or prior to the
corresponding Interest Payment Date, in which case the Company shall pay the
full amount of accrued and unpaid interest payable on such Interest Payment
Date to the Holder of record at the close of business on 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.


 


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 following 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), and 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 subsections (b) through (e) 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 subsections (b) through (e) of
this Section 4.01, and (ii) irrespective of the conditions set forth
in subsections (b) through (e) 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 34.2759 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)        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 31, 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.


 


(c)        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).  If,
at any time after the trading price condition has been met,


 


24

















 


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 shall notify the Holders, the
Trustee and the Conversion Agent (if other than the Trustee).


 


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


 


(i)            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


 


(ii)           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.


 


(e)        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 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,


 


25

















 


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
with respect to the period beginning on, and including, 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 (upon request of the Company), 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 be prepared by the Company and 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 Dollar 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 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;


 


26
















 


(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.


 


(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 (C) 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 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


 


27

















 


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 Company or its stock transfer 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 Company or its
representative receives a sum sufficient to pay any tax that is due by such
Holder in accordance with the immediately preceding sentence.


 


(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


 


28

















 


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.


 


(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.


 


(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).


 


29

















 


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.


 


(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 set forth in clause (f) 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


 


30

















 


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:


 


	
   

  	
   

  	
  Stock Price

  	
   

  
	
  Effective Date

  	
   

  	
  $23.34

  	
   

  	
  $25.00

  	
   

  	
  $27.50

  	
   

  	
  $30.00

  	
   

  	
  $35.00

  	
   

  	
  $40.00

  	
   

  	
  $45.00

  	
   

  	
  $50.00

  	
   

  	
  $60.00

  	
   

  	
  $75.00

  	
   

  	
  $100.00

  	
   

  	
  $125.00

  	
   

  	
  $150.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  October 25,
  2010

  	
   

  	
  8.5690

  	
   

  	
  8.2648

  	
   

  	
  6.9160

  	
   

  	
  5.8900

  	
   

  	
  4.4625

  	
   

  	
  3.5407

  	
   

  	
  2.9082

  	
   

  	
  2.4518

  	
   

  	
  1.8406

  	
   

  	
  1.3017

  	
   

  	
  0.8149

  	
   

  	
  0.5423

  	
   

  	
  0.3698

  	
   

  
	
  November 1,
  2011

  	
   

  	
  8.5690

  	
   

  	
  8.2174

  	
   

  	
  6.7735

  	
   

  	
  5.6891

  	
   

  	
  4.2103

  	
   

  	
  3.2823

  	
   

  	
  2.6628

  	
   

  	
  2.2264

  	
   

  	
  1.6576

  	
   

  	
  1.1696

  	
   

  	
  0.7349

  	
   

  	
  0.4911

  	
   

  	
  0.3357

  	
   

  
	
  November 1,
  2012

  	
   

  	
  8.5690

  	
   

  	
  8.1391

  	
   

  	
  6.5847

  	
   

  	
  5.4335

  	
   

  	
  3.8997

  	
   

  	
  2.9707

  	
   

  	
  2.3716

  	
   

  	
  1.9623

  	
   

  	
  1.4469

  	
   

  	
  1.0195

  	
   

  	
  0.6442

  	
   

  	
  0.4327

  	
   

  	
  0.2968

  	
   

  
	
  November 1,
  2013

  	
   

  	
  8.5690

  	
   

  	
  7.9777

  	
   

  	
  6.2983

  	
   

  	
  5.0754

  	
   

  	
  3.4934

  	
   

  	
  2.5783

  	
   

  	
  2.0150

  	
   

  	
  1.6462

  	
   

  	
  1.2023

  	
   

  	
  0.8485

  	
   

  	
  0.5408

  	
   

  	
  0.3656

  	
   

  	
  0.2518

  	
   

  
	
  November 1,
  2014

  	
   

  	
  8.5690

  	
   

  	
  7.6682

  	
   

  	
  5.8505

  	
   

  	
  4.5560

  	
   

  	
  2.9486

  	
   

  	
  2.0792

  	
   

  	
  1.5800

  	
   

  	
  1.2727

  	
   

  	
  0.9247

  	
   

  	
  0.6583

  	
   

  	
  0.4247

  	
   

  	
  0.2892

  	
   

  	
  0.2001

  	
   

  
	
  November 1,
  2015

  	
   

  	
  8.5690

  	
   

  	
  7.1537

  	
   

  	
  5.1691

  	
   

  	
  3.8030

  	
   

  	
  2.2163

  	
   

  	
  1.4523

  	
   

  	
  1.0641

  	
   

  	
  0.8487

  	
   

  	
  0.6236

  	
   

  	
  0.4529

  	
   

  	
  0.2962

  	
   

  	
  0.2031

  	
   

  	
  0.1414

  	
   

  
	
  November 1,
  2016

  	
   

  	
  8.5690

  	
   

  	
  6.3882

  	
   

  	
  4.1315

  	
   

  	
  2.6756

  	
   

  	
  1.2195

  	
   

  	
  0.6945

  	
   

  	
  0.4974

  	
   

  	
  0.4077

  	
   

  	
  0.3154

  	
   

  	
  0.2347

  	
   

  	
  0.1548

  	
   

  	
  0.1069

  	
   

  	
  0.0750

  	
   

  
	
  November 1,
  2017

  	
   

  	
  8.5690

  	
   

  	
  5.7241

  	
   

  	
  2.0877

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  



 


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;


 


31

















 


(ii)           if the Stock Price is more than $150.00 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 $23.34 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 42.8449 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:


 





 


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.

  



 


32

















 


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 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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  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


 


33

















 


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;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  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.


 


34
















 


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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  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


 


35

















 


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:


 


(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


 


36

















 


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 “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 makes 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


 


37

















 


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 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 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


 


38

















 


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.


 


(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’


 


39

















 


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,


 


(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


 


40

















 


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 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.  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.


 


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


 


41

















 


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 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


 


42

















 


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 and the Conversion Agent (if other than the Trustee) shall have no
responsibility for determination of the Daily Settlement Amounts (if
applicable) or the Daily Conversion Values (if applicable).  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.


 


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 an 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, it being understood that as long as the Securities are Global
Securities, payment will be made by wire transfer to DTC.


 


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


 


43

















 


(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 120 days after the end of each fiscal year during which any Securities
were outstanding, an Officers’ Certificate stating whether or not the signer
thereof knows of any Default or Event of Default that occurred during such
fiscal year. Such Officers’ Certificate shall contain a certification from the
principal executive officer, principal financial officer or principal
accounting officer of the Company that a review has been conducted of the
activities of the Company and the Company’s performance under this Indenture
and that the Company has complied with all conditions and covenants under this
Indenture. For purposes of this Section 5.03, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture. If the officer of the Company signing such
Officers’ Certificate has knowledge of such a Default or Event of Default, the
Officers’ Certificate shall describe any such Default or Event of Default and
its status.


 


(b)        The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith, and in any event within five
days, 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.


 


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.


 


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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 Securities shall be convertible shall 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


 


(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 the Company 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 proviso of clause (a)(i) of
this Section 6.01 shall be satisfied.


 


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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 or 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(d), Section 4.01(e) 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;


 


(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;


 


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(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.


 


The Trustee shall not be charged
with knowledge of any Event of Default unless written notice thereof shall have
been actually received by a Responsible 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 (8) or (9) 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 (8) or (9) of Section 7.01 occurs,
all unpaid principal of the Securities then outstanding shall ipso facto become and be


 


47

















 


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 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 payable
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


 


48

















 


accordance with this Section 7.04,
or if it so elects but fails to pay the Additional Interest when due, the
Securities shall be immediately 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;


 


(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.


 


49

















 


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 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:


 


50

















 


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


 


(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).


 


51

















 


(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.


 


(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


 


52

















 


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.


 


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.


 


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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.


 


The Company shall indemnify each of
the Trustee and any predecessor Trustee against any and all losses,
liabilities, damages, claims or expenses (including taxes, other than taxes
based upon, measured by or determined by the income of the Trustee) 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 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


 


54

















 


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
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.


 


55
















 


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.


 


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


 


56

















 


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 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.


 


57

















 


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.


 


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


 


58

















 


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.


 


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.


 


59

















 


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 10.06
and 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 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


 


60

















 


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


 


If to the Trustee, to:


 


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


525 William Penn Place, 38th Floor


Pittsburgh, Pennsylvania 15259


 


61

















 


Facsimile No.: (412) 234-7535


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.


 


The Trustee agrees to accept and act
upon instructions or directions from the Company pursuant to this Indenture
sent by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods (including pdf files). 
If the Company elects to give the Trustee e-mail or facsimile
instructions (or instructions by a similar electronic method) and the Trustee
in its discretion elects to act upon such instructions, the Trustee’s
understanding of such instructions shall be deemed controlling.  The Trustee shall not be liable for any
losses, costs or expenses arising directly or indirectly from the Trustee’s
reliance upon and compliance with such instructions notwithstanding such
instructions conflict or are inconsistent with a subsequent written
instruction.  The Company upon providing
electronic instructions agrees to assume all risks arising out of the use of
such electronic methods to submit instructions and directions to the Trustee,
including without limitation the risk of the Trustee acting on unauthorized
instructions, and the risk or interception and misuse by third parties.


 


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:


 


62

















 


(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.


 


(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.


 


63

















 


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.


 


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


 


64

















 


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 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:

  	
  /s/ David W.J. McGirr 

  
	
   

  	
   

  	
  Name: David W.J. McGirr 

  
	
   

  	
   

  	
  Title: Senior Vice President &
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Raymond K. O'Neil

  
	
   

  	
   

  	
  Name: Raymond K. O'Neil

  
	
   

  	
   

  	
  Title: Senior Associate

  



 


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.


 


2.50%
CONVERTIBLE SENIOR NOTES DUE 2017


 




	
  No. [    ]

  	
   

  	
  [Initially](2) $                 

  






 


CUSIP No.: 229678 AD9


 


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
($                  )]
[or such lesser amount 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 2.50% 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, 2011, 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 Trustee and the office or agency 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
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:

  



 


 


Attest:


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Dated: [              ],
  20[    ]

  	
   

  



 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


 


This is
one of the Securities referred to in the within-mentioned Indenture.


 


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

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  



 


A-4

















 


[FORM OF
REVERSE OF SECURITY]


 


CUBIST
PHARMACEUTICALS, INC.


2.50%
CONVERTIBLE SENIOR NOTES DUE 2017


 


This Security is one of a duly
authorized issuance of Securities of the Company, designated as its 2.50%
Convertible Senior Notes due 2017 (the “Securities”),
limited in aggregate principal amount of up to $450,000,000, all issued or to
be issued under and pursuant to an Indenture dated as of October 25, 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 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.  In case an Event of Default
occurs as a result of certain events of bankruptcy, insolvency or
reorganization of the Company, the principal of all 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,


 


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.


 


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 


 


A-5

















 


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, prior to the close
of business on the Business Day immediately preceding May 1, 2017 only
upon the occurrence of certain conditions specified in the Indenture, and on or
after May 1, 2017 until the close of business on the Business Day immediately
preceding the Maturity Date regardless of the occurrence of such conditions, 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 shall not be valid
until an authorized signatory of the Trustee manually signs the certificate of
authentication on this Security.


 


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


 


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 SECURITIES(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

  
	
  <S>

  	
   

  	
  <C>

  	
   

  	
  <C>

  	
   

  	
  <C>

  	
   

  	
  <C>

  



 






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