Exhibit 4.1





Exhibit 4.1




EXECUTION COPY




 





LIZ CLAIBORNE, INC.




AND




THE BANK OF NEW YORK MELLON,




as Trustee




INDENTURE




Dated as of June 24, 2009




6% Convertible Senior Notes due 2014




 




 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 1
	 
	Definitions; Interpretations
	 
	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	2	 
	Section 1.02. References to Interest
	 	 	13	 
	 
	 	 	 	 
	ARTICLE 2
	 
	Issue, Description, Execution, Registration and Exchange of Notes
	 
	 
	 	 	 	 
	Section 2.01. Designation and Amount
	 	 	14	 
	Section 2.02. Form of Notes
	 	 	14	 
	Section 2.03. Date and Denomination of Notes; Payments of Interest
	 	 	15	 
	Section 2.04. Execution, Authentication and Delivery of Notes
	 	 	16	 
	Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions
on Transfer; Depositary; Automatic Exchange
	 	 	17	 
	Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes
	 	 	24	 
	Section 2.07. Temporary Notes
	 	 	25	 
	Section 2.08. Cancellation of Notes Paid, Etc.
	 	 	25	 
	Section 2.09. CUSIP Numbers
	 	 	26	 
	Section 2.10. Additional Notes; Purchases
	 	 	26	 
	 
	 	 	 	 
	ARTICLE 3
	 
	[Intentionally Omitted]
	 
	 
	 	 	 	 
	ARTICLE 4
	 
	Satisfaction and Discharge
	 
	 
	 	 	 	 
	Section 4.01. Satisfaction and Discharge
	 	 	26	 
	 
	 	 	 	 
	ARTICLE 5
	 
	Particular Covenants of the Company
	 
	 
	 	 	 	 
	Section 5.01. Payment of Principal and Interest
	 	 	27	 
	Section 5.02. Maintenance of Office or Agency
	 	 	27	 
	Section 5.03. Appointments to Fill Vacancies in Trustee’s Office
	 	 	28	 
	Section 5.04. Provisions as to Paying Agent
	 	 	28	 
	Section 5.05. Existence
	 	 	29	 
	Section 5.06. Rule 144A Information Requirement and Annual Reports
	 	 	29	 
	Section 5.07. Stay, Extension and Usury Laws
	 	 	30	 
	Section 5.08. Compliance Certificate; Statements as to Defaults
	 	 	30	 






 


i









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 6
	 
	Lists of Noteholders and Reports by the Company and the Trustee
	 
	 
	 	 	 	 
	Section 6.01. Lists of Noteholders
	 	 	31	 
	Section 6.02. Preservation and Disclosure of Lists
	 	 	31	 
	Section 6.03. Reports by Trustee
	 	 	31	 
	 
	 	 	 	 
	ARTICLE 7
	 
	Defaults and Remedies
	 
	 
	 	 	 	 
	Section 7.01. Events of Default
	 	 	32	 
	Section 7.02. Payments of Notes on Default; Suit Therefor
	 	 	35	 
	Section 7.03. Application of Monies Collected by Trustee
	 	 	36	 
	Section 7.04. Proceedings by Noteholders
	 	 	37	 
	Section 7.05. Proceedings by Trustee
	 	 	38	 
	Section 7.06. Remedies Cumulative and Continuing
	 	 	38	 
	Section 7.07. Direction of Proceedings and Waiver of Defaults by
Majority of Noteholders
	 	 	38	 
	Section 7.08. Notice of Defaults
	 	 	39	 
	Section 7.09. Undertaking to Pay Costs
	 	 	39	 
	 
	 	 	 	 
	ARTICLE 8
	 
	Concerning the Trustee
	 
	 
	 	 	 	 
	Section 8.01. Duties and Responsibilities of Trustee
	 	 	40	 
	Section 8.02. Reliance on Documents, Opinions, Etc.
	 	 	42	 
	Section 8.03. No Responsibility for Recitals, Etc.
	 	 	43	 
	Section 8.04. Trustee, Paying Agents, Conversion Agents or Registrar May Own
Notes
	 	 	43	 
	Section 8.05. Monies to Be Held in Trust
	 	 	43	 
	Section 8.06. Compensation and Expenses of Trustee
	 	 	44	 
	Section 8.07. Officers’ Certificate as Evidence
	 	 	44	 
	Section 8.08. Conflicting Interests of Trustee
	 	 	45	 
	Section 8.09. Eligibility of Trustee
	 	 	45	 
	Section 8.10. Resignation or Removal of Trustee
	 	 	45	 
	Section 8.11. Acceptance by Successor Trustee
	 	 	46	 
	Section 8.12. Succession by Merger, Etc.
	 	 	47	 
	Section 8.13. Limitation on Rights of Trustee as Creditor
	 	 	48	 
	Section 8.14. Trustee’s Application for Instructions from the Company
	 	 	48	 
	 
	 	 	 	 
	ARTICLE 9
	 
	Concerning the Noteholders
	 
	 
	 	 	 	 
	Section 9.01. Action by Noteholders
	 	 	48	 
	Section 9.02. Proof of Execution by Noteholders
	 	 	48	 
	Section 9.03. Who Are Deemed Absolute Owners
	 	 	49	 
	Section 9.04. Company-Owned Notes Disregarded
	 	 	49	 
	Section 9.05. Revocation of Consents; Future Holders Bound
	 	 	50	 






 


ii









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 10
	 
	[Intentionally Omitted]
	 
	 
	 	 	 	 
	ARTICLE 11
	 
	Supplemental Indentures
	 
	 
	 	 	 	 
	Section 11.01. Supplemental Indentures Without Consent of Noteholders
	 	 	50	 
	Section 11.02. Supplemental Indentures With Consent of Noteholders
	 	 	51	 
	Section 11.03. Effect of Supplemental Indentures
	 	 	52	 
	Section 11.04. Notation on Notes
	 	 	53	 
	Section 11.05. Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee
	 	 	53	 
	 
	 	 	 	 
	ARTICLE 12
	 
	Consolidation, Merger, Sale of Assets
	 
	 
	 	 	 	 
	Section 12.01. When Company May Merge or Transfer Assets
	 	 	53	 
	Section 12.02. Successor to Be Substituted
	 	 	54	 
	Section 12.03. Opinion Of Counsel To Be Given Trustee
	 	 	54	 
	 
	 	 	 	 
	ARTICLE 13
	 
	Immunity of Incorporators, Shareholders, Officers and Directors
	 
	 
	 	 	 	 
	Section 13.01. Indenture and Notes Solely Corporate Obligations
	 	 	55	 
	 
	 	 	 	 
	ARTICLE 14
	 
	Special Interest
	 
	 
	 	 	 	 
	Section 14.01. Special Interest
	 	 	55	 
	 
	 	 	 	 
	ARTICLE 15
	 
	Conversion of Notes
	 
	 
	 	 	 	 
	Section 15.01. Right to Convert
	 	 	57	 
	Section 15.02. Conversion Procedures
	 	 	59	 
	Section 15.03. Payment Upon Conversion
	 	 	60	 
	Section 15.04. Adjustment of Conversion Rate
	 	 	63	 
	Section 15.05. Adjustment of Average Prices
	 	 	71	 
	Section 15.06. Adjustments Upon Make-whole Fundamental Changes
	 	 	72	 
	Section 15.07. Effect of Recapitalization, Reclassification,
Consolidation, Merger or Sale
	 	 	73	 
	Section 15.08. Taxes on Shares Issued
	 	 	75	 
	Section 15.09. Reservation of Shares; Shares to be Fully Paid;
Compliance With Governmental Requirements; Listing of Common Stock
	 	 	75	 
	Section 15.10. Responsibility of Trustee
	 	 	76	 
	Section 15.11. Notice to Holders Prior to Certain Actions
	 	 	76	 
	Section 15.12. Stockholder Rights Plan
	 	 	77	 
	Section 15.13. Conversion Rate Cap
	 	 	78	 
	Section 15.14. Company Determination Final
	 	 	78	 






 


iii









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 16
	 
	Offer to Purchase Notes Upon a Fundamental Change
	 
	 
	 	 	 	 
	Section 16.01. Offer to Purchase Notes Upon a Fundamental Change
	 	 	78	 
	Section 16.02. Withdrawal of Fundamental Change Purchase Notice
	 	 	81	 
	Section 16.03. Deposit of Fundamental Change Purchase Price
	 	 	81	 
	Section 16.04. Restrictions on Purchases
	 	 	81	 
	Section 16.05. Notes Purchased in Part
	 	 	81	 
	Section 16.06. Covenant to Comply With Securities Laws Upon Purchase of
Notes
	 	 	82	 
	Section 16.07. Repayment to the Company
	 	 	82	 
	 
	 	 	 	 
	ARTICLE 17
	 
	Miscellaneous Provisions
	 
	 
	 	 	 	 
	Section 17.01. Provisions Binding on Company’s Successors
	 	 	82	 
	Section 17.02. Official Acts by Successor
	 	 	82	 
	Section 17.03. Addresses for Notices, Etc.
	 	 	82	 
	Section 17.04. Governing Law
	 	 	83	 
	Section 17.05. Evidence of Compliance with Conditions Precedent; Certificates
and Opinions of Counsel to Trustee
	 	 	83	 
	Section 17.06. Legal Holidays
	 	 	84	 
	Section 17.07. No Security Interest Created
	 	 	84	 
	Section 17.08. Trust Indenture Act
	 	 	84	 
	Section 17.09. Benefits of Indenture
	 	 	84	 
	Section 17.10. Table of Contents, Headings, Etc.
	 	 	84	 
	Section 17.11. Authenticating Agent
	 	 	85	 
	Section 17.12. Execution in Counterparts
	 	 	86	 
	Section 17.13. Severability
	 	 	86	 
	Section 17.14. Waiver of Jury Trial
	 	 	86	 
	Section 17.15. Consent to Jurisdiction; Consent to Service of Process
	 	 	86	 
	Section 17.16. Force Majeure
	 	 	87	 
	Section 17.17. Currency Indemnity
	 	 	87	 
	Section 17.18. Calculations
	 	 	88	 
	Section 17.19. U.S.A. Patriot Act
	 	 	88	 
	 
	 	 	 	 
	EXHIBIT:
	 	 	 	 
	 
	 	 	 	 
	Exhibit A Form of Note
	 	 	A-1	 





 


iv









 





INDENTURE dated as of June 24, 2009 between Liz Claiborne, Inc., a Delaware corporation, as
issuer (hereinafter sometimes called the “Company,” as more fully set forth in Section 1.01) and
The Bank of New York Mellon, a New York banking corporation, as trustee (hereinafter sometimes
called the “Trustee,” as more fully set forth in Section 1.01).



W I T N E S S E T H:




WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issue of its
6% Convertible Senior Notes due 2014 (hereinafter sometimes called the “Notes”), initially in an
aggregate principal amount of $90,000,000, and in order to provide the terms and conditions upon
which the Notes are to be authenticated, issued and delivered, the Company has duly authorized the
execution and delivery of this Indenture; and



WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note, the
Form of Conversion Notice, the Form of Fundamental Change Purchase Notice and the Form of
Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter
provided; and



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



NOW, THEREFORE, THIS INDENTURE WITNESSETH:



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


 


 









 





ARTICLE 1

Definitions; Interpretations




Section 1.01. Definitions. The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective meanings specified in
this Section 1.01. All other terms used in this Indenture that are defined in the Trust Indenture Act or that are by reference therein
defined in the Securities Act (except as herein otherwise expressly provided or unless the context
otherwise requires) shall have the meanings assigned to such terms in said Trust Indenture Act and
in said Securities Act as in force at the date of the execution of this Indenture. The words
“herein,” “hereof,” “hereunder,” and words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision. The terms defined in this Article
include the plural as well as the singular. Unless otherwise noted, references to “U.S. Dollars”
or “$” shall mean the currency of the United States.



“Additional Interest” means Supplementary Interest and Special interest.



“Additional Shares” shall have the meaning specified in Section 15.06(a).



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



“Automatic Exchange” shall have the meaning specified in Section 2.05(g).



“Automatic Exchange Date” shall have the meaning specified in Section 2.05(g).



“Bid Solicitation Agent” means the financial institution appointed by the Company to solicit
bids for the Trading Price of the Notes in accordance with Section 15.01(a)(ii). The Company shall
initially act as the Bid Solicitation Agent.



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



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



“Business Day” means any day other than a Saturday, a Sunday or a day on which the Federal
Reserve Bank of New York is authorized or required by law or executive order to close or be closed.



“Cash Amount” shall have the meaning specified in Section 15.03(a).


 


2









 





“Capital Stock” means, for any entity, any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
stock issued by that entity.



“Cash Settlement” shall have the meaning specified in Section 15.03(a).



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



“Combination Settlement” shall have the meaning specified in Section 15.03(a).



“Commission” means the Securities and Exchange Commission.



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



“Common Stock” means common stock of the Company, par value $1.00, at the date of this
Indenture.



“Company” means Liz Claiborne, Inc., a Delaware corporation, and subject to the provisions of
Article 12, shall include its successors and assigns.



“Company Order” means a written order of the Company, signed by (a) the Company’s Chief
Executive Officer, Chief Financial Officer, President, Executive Vice President or any Vice
President (whether or not designated by a number or numbers or word or words added before or after
the title “Vice President”) and (b) any such other officer designated in clause (a) of this
definition or the Company’s Treasurer or Assistant Treasurer or Secretary or any Assistant
Secretary, and delivered to the Trustee.



“Continuing Director” means a director who either was a member of the Board of Directors on
June 18, 2009 or who becomes a member of the Board of Directors subsequent to that date and whose
election, appointment or nomination for election by the stockholders of the Company is duly
approved by a majority of the Continuing Directors on the Board of Directors at the time of such
approval, either by a specific vote or by approval of the proxy statement issued by the Company on
behalf of the entire Board of Directors in which such individual is named as nominee for director.
Solely for purposes of this definition, the phrase “or a committee of such board duly authorized to
act for it hereunder” of the definition of Board of Directors shall be disregarded.



“Conversion Agent” shall have the meaning specified in Section 5.02.



“Conversion Date” shall have the meaning specified in Section 15.02(b).


 


3









 





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



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



“Conversion Rate” means, initially 279.6421 shares of Common Stock per $1,000 principal amount
of Notes, subject to adjustment as set forth herein.



“Conversion Rate Cap” shall have the meaning specified in Section 15.13.



“Corporate Trust Office” means the principal office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the date hereof shall be The Bank
of New York Mellon, 101 Barclay Street, Floor 8 West, New York, New York 10286, Attention:
Corporate Finance Group or such other address as the Trustee may designate from time to time by
notice to the Noteholders and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as such successor Trustee may designate from time to time by notice
to the Noteholders and the Company).



“Custodian” means The Bank of New York Mellon, as custodian for The Depository Trust Company,
with respect to the Global Notes, or any successor entity thereto.



“Daily Cash Amount” shall have the meaning set forth in Section 15.03(d).



“Daily Conversion Value” means, in respect of each $1,000 principal amount of Notes and for
each of the thirty (30) consecutive Trading Days during the Observation Period for such Notes,
31/3% of the product of (i) the Conversion Rate on such Trading Day and (ii) the Daily VWAP of
Common Stock on such Trading Day.



“Daily Settlement Amount” shall have the meaning set forth in Section 15.03(d).



“Daily VWAP” means, for each of the thirty (30) consecutive Trading Days during the
Observation Period, the per share volume-weighted average price as displayed under the heading
“Bloomberg VWAP” on Bloomberg page “LIZ.N <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 such purpose by the Company). The Daily VWAP will
be determined without regard to after hours trading or any other trading outside of the regular trading session trading hours.


 


4









 





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



“Defaulted Interest” means any interest on any Note that is payable, but is not punctually
paid or duly provided for, on any June 15 or December 15.



“Depositary” means, with respect to the Global Notes, the Person specified in Section 2.05 as
the Depositary with respect to such Global Notes, until a successor shall have been appointed and
become such pursuant to the applicable provisions of this Indenture, and thereafter, “Depositary”
shall mean or include such successor.



“DTC” shall have the meaning specified in Section 2.05(d).



“Effective Date” shall have the meaning specified in Section 15.06(b).



“Event of Default” shall have the meaning specified in Section 7.01.



“Ex-Dividend Date” means the first date on which the shares of the Common Stock (or other
security) trade on the applicable exchange or in the applicable market, regular way, without the
right to receive the issuance or distribution in question.



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



“Fair Market Value” means the amount that a willing buyer would pay to a willing seller in an
arms’ length transaction, as determined by the Board of Directors.



“Form of Assignment and Transfer” shall mean the “Form of Assignment and Transfer” attached as
Attachment 3 to the Form of Note attached hereto as Exhibit A.



“Form of Conversion Notice” shall mean the “Form of Conversion Notice” attached as Attachment
1 to the Form of Note attached hereto as Exhibit A.



“Form of Fundamental Change Purchase Notice” shall mean the “Form of Fundamental Change
Purchase Notice” attached as Attachment 2 to the Form of Note attached hereto as Exhibit A.


 


5









 





“Fundamental Change” means the occurrence after the original issuance of the Notes of any of
the following events:




(a) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act,
other than the Company, its Subsidiaries or the employee benefit plans of the Company or
any such Subsidiary of the Company, has become the direct or indirect “beneficial owner,”
as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common Equity
representing more than 50% of the voting power of the Company’s Common Equity; or




(b) consummation of (i) any recapitalization, reclassification or change of the
Common Stock (other than changes resulting from a subdivision or combination) as a result
of which the Common Stock would be converted into, or exchanged for, stock, other
securities, other property or assets or (ii) any share exchange, consolidation or merger
of the Company pursuant to which the Common Stock will be converted into cash, securities
or other property or any sale, lease or other transfer in one transaction or a series of
transactions of all or substantially all of the consolidated assets of the Company and its
Subsidiaries, taken as a whole, to any Person other than one of the Company’s
Subsidiaries; provided, however, that a transaction where the holders of all classes of
the Company’s Common Equity immediately prior to such transaction that is a share
exchange, consolidation or merger own, directly or indirectly, more than 50% of all
classes of Common Equity of the continuing or surviving corporation or transferee or the
parent thereof immediately after such event shall not be a Fundamental Change; or




(c) Continuing Directors cease to constitute at least a majority of the Board of
Directors.




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




(e) the Common Stock (or other common stock, American depositary receipts or American
depositary shares underlying the Notes) ceases to be listed or quoted on a national
securities exchange in the United States.



provided, however, that a Fundamental Change as a result of clause (a) or (b) above will not
be deemed to have occurred if at least 90% of the consideration received or to be received by the
holders of the Company’s Common Stock, excluding cash payments for fractional shares, in connection
with the transaction or transactions constituting the Fundamental Change consists of shares of
Publicly Traded Securities and as a result of such transaction or transactions the Notes become
convertible into such Publicly Traded Securities in accordance with Section 15.07, excluding cash
payments for fractional shares (subject to the provisions set forth under Section 15.07).


 


6









 





“Fundamental Change Company Notice” shall have the meaning specified in Section 16.01(b).



“Fundamental Change Purchase Date” shall have the meaning specified in Section 16.01(a).



“Fundamental Change Purchase Expiration Time” shall have the meaning specified in Section
16.01(a)(i).



“Fundamental Change Purchase Notice” shall have the meaning specified in Section 16.01(a)(i).



“Fundamental Change Purchase Price” shall have the meaning specified in Section 16.01(a).



“Global Note” shall have the meaning specified in Section 2.05(b).



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



“Interest Payment Date” means each June 15 and December 15 of each year, beginning on December
15, 2009; provided, however, that if any Interest Payment Date falls on a date that is not a
Business Day, such payment of interest will be postponed until the next succeeding Business Day,
and no interest or other amount will be paid as a result of such postponement.



“Initial Purchasers” means J.P. Morgan Securities Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and SunTrust Capital Markets, Inc..



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



“Last Reported Sale Price” of the Common Stock or any other security on any date means:




(i) 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. securities exchange on which the Common Stock or such other
security is traded; or




(ii) if the Common Stock or such other security is not listed for trading on a U.S.
national or regional securities exchange on the relevant date, the last quoted bid price
for the Common Stock or such other security in the over-the-counter market on the relevant
date as reported by Pink Sheets LLC or a similar organization; or




(iii) if the Common Stock or such other security is not so quoted, the average of the
mid-point of the last bid and ask prices for the Common Stock or such other security on
the relevant date from each of at least three nationally recognized independent investment
banking firms selected by the Company for this purpose.


 


7









 





The Last Reported Sale Price of the Common Stock or such other security shall be determined
without reference to extended or after-hours trading. For the purposes of determining whether the
conversion condition described under Section 15.01(a)(i) is satisfied, if, during the thirty (30)
consecutive Trading-Day period applicable for calculating the Last Reported Sale Price of the
Common Stock or such other security, an event occurs requiring an adjustment of the Conversion Rate
that is not yet reflected in the price of the Common Stock or such other security on the applicable
Trading Day, the Last Reported Sale Price shall be calculated for such period in a manner
determined by the Company to appropriately reflect the impact of such event on the price of the
Common Stock or such other security during such period.



“Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental
Change pursuant to clause (a) or (b) as described in the definition thereof (determined after
giving effect to any exceptions or exclusions to such definition, but without regard to the proviso
in clause (b) of such definition). For the avoidance of doubt, any transaction(s) or event(s)
described in clause (a) or (b) of the definition of Fundamental Change will not constitute a
Make-Whole Fundamental Change if at least 90% of the consideration received or to be received by
the holders of the Company’s Common Stock, excluding cash payments for fractional shares, in
connection with the transaction or transactions constituting the Fundamental Change consists of
shares of Publicly Traded Securities and as a result of such transaction or transactions the Notes
become convertible into such Publicly Traded Securities in accordance with Section 15.07, excluding
cash payments for fractional shares (subject to the provisions set forth under Section 15.03).



“Market Disruption Event” means (i) a failure by the primary United States national or
regional securities exchange or market on which the Common Stock is listed or admitted to trading
to open for trading during its regular trading session or (ii) 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 June 15, 2014.



“Maximum Conversion Rate” shall have the meaning specified in Section 15.06(c).


 


8









 





“Measurement Period” shall have the meaning specified in Section 15.01(a)(i).



“Merger Event” shall have the meaning specified in Section 15.07.



“Note” or “Notes” shall mean any note or notes, as the case may be, authenticated and
delivered under this Indenture.



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



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



“Noteholder,” “Holder” or “holder,” as applied to any Note, or other similar terms (but
excluding the term “beneficial holder”), shall mean any person in whose name at the time a
particular Note is registered on the Note Register.



“Observation Period” with respect to any converted Note means:



(i) if the relevant Conversion Date occurs prior to March 15, 2014 and a Cash Settlement or a
Combination Settlement applies to such conversion, the thirty (30) consecutive Trading-Day period
beginning on and including the second Trading Day after such Conversion Date; and



(ii) if the relevant Conversion Date occurs on or after March 15, 2014, and regardless of the
Settlement Method, the thirty (30) consecutive Trading Days beginning on, and including, the
32nd Scheduled Trading Day immediately preceding the Maturity Date.



“Offering Memorandum” means the final offering memorandum dated June 18, 2009 relating to the
offering and sale of the Notes pursuant to the Purchase Agreement.



“Officer” means, with respect to the Company, the President, the Chief Executive Officer, the
Treasurer, any Assistant Treasurer, the Secretary, any Assistant Secretary, any Executive or Senior
Vice President or any Vice President (whether or not designated by a number or numbers or word or
words added before or after the title “Vice President”).



“Officers’ Certificate,” when used with respect to the Company, means a certificate signed by
two Officers of the Company that is delivered to the Trustee. Each such certificate (other than
delivered pursuant to Section 5.08 of this Indenture) shall include the statements provided for in
Section 17.05 if and to the extent required by the provisions of such Section.



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



“Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an
employee of or counsel to the Company, or other counsel
acceptable to the Trustee, that is delivered to the Trustee. Each such opinion shall include
the statements provided for in Section 17.05 if and to the extent required by the provisions of
such Section and may be subject to customary assumptions, exceptions and qualifications.


 


9









 





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




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




(b) Notes, or portions thereof, for the payment or purchase of which monies in the
necessary amount shall have been deposited in trust with the Trustee or with any Paying
Agent (other than the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent); provided that, if any such
Note is purchased, the Holder thereof shall have delivered a Fundamental Change Purchase
Notice in accordance with Section 16.01;




(c) Notes that have been paid pursuant to Section 2.06 or Notes in lieu of which, or
in substitution for which, other Notes shall have been authenticated and delivered
pursuant to the terms of Section 2.06 unless proof satisfactory to the Trustee is
presented that any such Notes are held by protected purchasers in due course; and




(d) Notes converted pursuant to Article 15.



“Paying Agent” shall have the meaning specified in Section 5.02.



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



“Physical Settlement” shall have the meaning specified in Section 15.03(a).



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



“Publicly Traded Securities” means shares of common stock, American depositary receipts or
American depositary shares traded on a national securities
exchange in the United States or which will be so traded or quoted when issued or exchanged in
connection with a Fundamental Change.


 


10









 





“Purchase Agreement” means that certain Purchase Agreement, dated as of June 18, 2009, among
the Company and the Initial Purchasers.



“record date” shall have the meaning specified in Section 15.04(f).



“Reference Property” shall have the meaning specified in Section 15.07.



“Resale Restriction Termination Date” shall have the meaning specified in Section 2.05(d).



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



“Restricted Global Note” shall mean a Global Note that is a Restricted Security.



“Restricted Securities” shall have the meaning specified in Section 2.05(d).



“Restricted Transfer Default” shall have the meaning specified in Section 14.01(a).



“Rule 144” means Rule 144 as promulgated under the Securities Act.



“Rule 144A” means Rule 144A as promulgated under the Securities Act.



“Schedule TO” means a Tender Offer Statement under Section 14(d)(1) or 13(e)(1) of the
Exchange Act.



“Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the primary
United States 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.



“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.



“Settlement Method” means, with respect to a conversion of Notes, a Physical Settlement, Cash
Settlement or Combination Settlement with which such
conversion is settled under this Indenture, as elected (or deemed elected) by the Company.


 


11









 





“Significant Subsidiary” means any Subsidiary of the Company that would be a “significant
subsidiary” of the Company within the meaning of Rule 1-02(w) under Regulation S-X promulgated by
the Commission.



“Special Interest” shall have the meaning specified in Section 14.01(a).



“Specified Dollar Amount” means the amount of cash per $1,000 principal amount of converted
Note specified in the Settlement Notice related to such converted Note.



“Spin-off” shall have the meaning specified in Section 15.04(c).



“Stock Price” shall have the meaning specified in Section 15.06(b).



“Subsidiary” means, with respect to 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 (i) such Person; (ii) such
Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such
Person.



“Successor Company” shall have the meaning specified in Section 12.01(a).



“Supplementary Interest” shall have the meaning specified in Section 7.01(c).



“Trading Day” means, except as provided in Section 15.03(g) hereof, a day on which (i) trading
in the Common Stock generally occurs on the New York Stock Exchange or, if the Common Stock is not
then listed on the New York Stock Exchange, on the principal other United States national or
regional securities exchange on which the Common Stock is then listed or, if the Common Stock is
not then listed on a United States national or regional securities exchange, on the principal other
market on which the Common Stock is then traded; (ii) a Last Reported Sale Price for the Common
Stock is available on such securities exchange or market; and (iii) if the Common Stock is listed
on a national securities exchange, during the half-hour period ending on the scheduled close of
trading on such day there is no material suspension or limitation on trading (by reason of
movements in price exceeding limits permitted by such national securities exchange or otherwise) in
the Common Stock or in any options, contracts or future contracts relating to the Common Stock. If
the Common Stock (or other security for which a closing sale price must be determined) is not so listed or
traded, “Trading Day” means a “Business Day.”


 


12









 





“Trading Price” of the Notes on any date of determination means the average of the secondary
market bid quotations obtained by the Bid Solicitation Agent for $2 million principal amount of the
Notes 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 $2 million principal amount of the Notes from a
nationally recognized securities dealer, then the Trading Price per $1,000 principal amount of
Notes will be deemed to be less than 98% of the product of the Last Reported Sale Price of the
Common Stock and the applicable Conversion Rate.



“transfer” shall have the meaning specified in Section 2.05(d).



“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at
the date of execution of this Indenture, except as provided in Section 11.03 and Section 15.07;
provided, however, that in the event the Trust Indenture Act of 1939 is amended after the date
hereof, the term “Trust Indenture Act” shall mean, to the extent required by such amendment, the
Trust Indenture Act of 1939, as so amended.



“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder.



“United States” means the United States of America.



“Unrestricted Global Note” shall mean a Global Note that is not a Restricted Security.



Section 1.02. References to Interest. Any reference to the payment of interest on, or in
respect of, any Note in this Indenture shall be deemed to include mention of the payment of
Supplementary Interest (if applicable) and Special Interest (if applicable) if, in such context,
Supplementary Interest and Special Interest, as applicable, was, or would be, payable pursuant to
Section 7.01 and Section 14.01, respectively. An express mention of the payment of Supplementary
Interest (if applicable) or Special Interest (if applicable) in any provision hereof shall not be
construed as excluding Special Interest or Supplementary Interest, as applicable, in those
provisions hereof where such express mention is not made.


 


13









 





ARTICLE 2

Issue, Description, Execution, Registration and Exchange of Notes




Section 2.01. Designation and Amount. The Notes shall be designated as the “6% Convertible
Senior Notes due 2014.” The aggregate principal amount of Notes that may be authenticated and
delivered under this Indenture is initially limited to $90,000,000, subject to Section 2.10 and
except for Notes authenticated and delivered upon registration or transfer of, or in exchange for,
or in lieu of other Notes pursuant to Section 2.05 and Section 2.06.



Section 2.02. Form of Notes. The Notes and the Trustee’s certificate of authentication to
be borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, which
are incorporated in and made a part of this Indenture.



Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends or endorsements as the officers executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities exchange or automated quotation
system on which the Notes may be listed or designated for issuance, or to conform to usage or to
indicate any special limitations or restrictions to which any particular Notes are subject.



The Global Note shall represent such principal amount of the outstanding Notes as shall be
specified therein and shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be increased or reduced to reflect
purchases, conversions, transfers, exchanges or issuances of additional Notes permitted hereby.
Any endorsement of the Global Note to reflect the amount of any increase or decrease in the amount
of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in such manner and upon instructions given by the Holder of such Notes in
accordance with this Indenture. Payment of principal (including any Fundamental Change Purchase
Price) of, and accrued and unpaid interest, if any, on, the Global Note shall be made to the Holder
of such Note on the date of payment, unless a record date or other means of determining Holders
eligible to receive payment is provided for herein.



The terms and provisions contained in the form of Note attached as Exhibit A hereto shall
constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable,
the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. In the event of any conflict or inconsistency
between the terms and provisions of the Note and the terms and provisions of this Indenture,
the terms and provisions of this Indenture shall control.


 


14









 





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



The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register
at the close of business on any Interest 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 of the Paying Agent, which shall initially be the Corporate Trust Office of
the Trustee as the Company’s Paying Agent and Note Registrar. The Company shall pay interest on any
Notes in certificated form by check mailed to the address of the Person entitled thereto as it
appears in the Note Register (or upon written application by such Person to the Trustee and Paying
Agent (if different from the Trustee) not later than the relevant Interest Record Date, by wire
transfer in immediately available funds to such Person’s account within the United States, if such
Person is entitled to interest on an aggregate principal amount in excess of $5,000,000, which
application shall remain in effect until the Noteholder notifies, in writing, the Trustee and
Paying Agent to the contrary) or on any Global Note by wire transfer of immediately available funds
to the account of the Depositary or its nominee.



Any Defaulted Interest shall forthwith cease to be payable to the Noteholder on the relevant
Interest Record Date by virtue of its having been such Noteholder, and such Defaulted Interest
shall be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:



(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Notes (or their respective Predecessor Notes) are registered at the close of business on
a special record date for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Note and the date of the proposed payment (which shall be not
less than twenty-five (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 Interest
or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of
the proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the Company shall fix a
special record date for the payment of such Defaulted Interest which



 


15









 






shall be not more than fifteen (15) days and not less than ten (10)
days prior to the date of the proposed payment, and not less than ten (10) days after the receipt
by the Trustee of the notice of the proposed payment. The Company shall promptly notify the
Trustee in writing of such special record date and the Trustee, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special
record date therefor to be mailed, first-class postage prepaid, to each Holder at its address as it
appears in the Note Register, not less than ten (10) days prior to such special record date.
Notice of the proposed payment of such Defaulted Interest and the special record date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the
Notes (or their respective Predecessor Notes) are registered at the close of business on such
special record date and shall no longer be payable pursuant to the following clause (2) of this
Section 2.03.



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



Section 2.04. Execution, Authentication and Delivery of Notes. The Notes shall be signed in
the name and on behalf of the Company by the manual or facsimile signature of any Officer.



At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Notes executed by the Company to the Trustee for authentication, together with
a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Notes, without any further action by
the Company hereunder.



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


 


16









 





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



Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer;
Depositary; Automatic Exchange. (a) The Company shall cause to be kept at the Corporate Trust
Office a register (the register maintained in such office or in any other office or agency of the
Company designated pursuant to Section 5.02 being herein sometimes collectively referred to as the
“Note Register”) in which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Notes and of transfers of Notes. Such register shall be in
written form or in any form capable of being converted into written form within a reasonable period
of time. The Trustee is hereby appointed “Note Registrar” for the purpose of registering Notes and
transfers of Notes as herein provided. The Company may appoint a new Note Registrar without prior
notice to Noteholders. The Company may appoint one or more co-registrars in accordance with Section
5.02.



Upon surrender for registration of transfer of any Note to the Note Registrar or any
co-registrar, and satisfaction of the requirements for such transfer set forth in this Section
2.05, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized denominations and of
a like aggregate principal amount and bearing such restrictive legends as may be required by this
Indenture.



Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at any such office or agency
maintained by the Company pursuant to Section 5.02. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that
the Noteholder making the exchange is entitled to receive, bearing registration numbers not
contemporaneously outstanding.



All Notes presented or surrendered for registration of transfer or for exchange, purchase or
conversion shall (if so required by the Company, the Trustee, the Note Registrar or any
co-registrar) be duly endorsed, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and duly executed, by the Noteholder thereof or its
attorney-in-fact duly authorized in writing.


 


17









 





No service charge shall be charged by the Company, the Trustee or the Notes Registrar to the
Noteholder for any exchange or registration of transfer of
Notes, but the Noteholder may be required by the Company, the Trustee, the Notes Registrar or
otherwise to pay a sum sufficient to cover any tax, assessments or other governmental charges that
may be imposed in connection therewith as a result of the name of the Noteholder of the new Notes
issued upon such exchange or registration of transfer of Notes being different from the name of the
Noteholder of the old Notes presented or surrendered for such exchange or registration of transfer.



None of the Company, the Trustee, the Note Registrar or any co-registrar shall be required to
exchange or register a transfer of (i) any Notes surrendered for conversion or, if a portion of any
Note is surrendered for conversion, such portion thereof surrendered for conversion or (ii) any
Notes, or a portion of any Note, surrendered for purchase (and not withdrawn) in accordance with
Article 16 hereof.



All Notes issued upon any registration of transfer or exchange of Notes in accordance with
this Indenture shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture as the Notes surrendered upon such registration
of transfer or exchange. For greater certainty, all Notes issued upon any registration of transfer
or exchange of Notes will be issued as evidence of the same continuing indebtedness of the Company
under this Indenture and in no circumstances is the Company obligated under the Indenture to repay
the principal amount of the exchanged Notes by virtue of the registration of a transfer or
exchange.



(b) So long as the Notes are eligible for book-entry settlement with the Depositary, unless
otherwise required by law, all Notes shall be represented by one or more Notes in global form
(each, a “Global Note”) registered in the name of the Depositary or the nominee of the Depositary.
The transfer and exchange of beneficial interests in a Global Note that does not involve the
issuance of a definitive Note shall be effected through the Depositary (but not the Trustee or the
Custodian) in accordance with this Indenture (including the restrictions on transfer set forth
herein) and the procedures of the Depositary therefor.



(c) [Intentionally Omitted]



(d) Every Note that bears or is required under this Section 2.05(d) to bear the legend set
forth in this Section 2.05(d) (together with any share of Common Stock issued upon conversion of
the Notes and required to bear the legend set forth in Section 2.05(e), collectively, the
“Restricted Securities”) shall be subject to the restrictions on transfer set forth in this Section
2.05(d) (including the legend set forth below), and the holder of each such Restricted Security, by
such holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer. As used
in this Section 2.05(d) and Section 2.05(e), the term “transfer” encompasses any sale, pledge,
transfer or other disposition whatsoever of any Restricted Security.


 


18









 





Until the date (the “Resale Restriction Termination Date”) that is the later of (1) the date
that is one year after the last date of original issuance of the Notes, or such other period of
time as permitted by Rule 144 or any successor provision thereto, and (2) such later date, if any,
as may be required by applicable laws, any certificate evidencing such Note (and all securities
issued in exchange therefor or substitution thereof, other than shares of Common Stock, if any,
issued upon conversion thereof which shall bear the legend set forth in Section 2.05(e), if
applicable) shall bear a legend in substantially the following form (unless such Notes have been
transferred pursuant to a registration statement that has become or been declared effective under
the Securities Act and that continues to be effective at the time of such transfer, pursuant to the
exemption from registration provided by Rule 144 or any similar provision then in force under the
Securities Act, or unless otherwise agreed by the Company in writing, with written notice thereof
to the Trustee):



THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:




(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED
INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT
IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND




(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT
IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE
LAW, EXCEPT:




(A) TO LIZ CLAIBORNE, INC. (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, OR




(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER
THE SECURITIES ACT, OR


 


19









 






(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER
THE SECURITIES ACT, OR




(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.



PRIOR TO ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE
RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY
REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE
WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE
AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.



No transfer of any Note prior to the Resale Restriction Termination Date will be registered by
the Note Registrar unless the applicable box on the Form of Assignment and Transfer has been
checked.



Notwithstanding anything to the contrary contained in this Indenture or the Note, such Note
(or security issued in exchange or substitution therefor) as to which such restrictions on transfer
shall have expired in accordance with their terms may, upon surrender of such Note for exchange to
the Note Registrar in accordance with the provisions of this Section 2.05, be exchanged for a new
Note or Notes, of like tenor and aggregate principal amount, which shall not bear the restrictive
legend required by this Section 2.05(d).



Notwithstanding any other provisions of this Indenture (other than the provisions set forth in
this Section 2.05(d)), a Global Note may not be transferred as a whole or in part except (i) by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary and (ii) for transfers of portions of a Global
Note in certificated form made upon request of a member of, or a participant in, the Depositary
(for itself or on behalf of a beneficial owner) by written notice given to the Trustee by or on
behalf of the Depositary in accordance with customary procedures of the Depositary and in
compliance with this Section 2.05(d).



The Depositary shall be a clearing agency registered under the Exchange Act. The Company
initially appoints The Depository Trust Company (“DTC”) to
act as Depositary with respect to the Global Note. Initially, the Global Notes shall be
issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary,
and deposited with the Trustee as custodian for DTC.


 


20









 





If (i) the Depositary notifies the Company at any time that the Depositary is unwilling or
unable to continue as depositary for the Global Notes and a successor depositary is not appointed
within ninety (90) days, (ii) the Depositary ceases to be registered as a clearing agency under the
Exchange Act and a successor depositary is not appointed within ninety (90) days or (iii) an Event
of Default with respect to the Notes has occurred and is continuing, upon the request of the
beneficial owner of the Notes, the Company will execute, and the Trustee, upon receipt of an
Officers’ Certificate and a Company Order for the authentication and delivery of Notes, will
authenticate and deliver Notes in definitive form to each such beneficial owner of the related
Notes (or a portion thereof) in an aggregate principal amount equal to the principal amount of such
Global Note, in exchange for such Global Note, and upon delivery of the Global Note to the Trustee
such Global Note shall be canceled.



Definitive Notes issued in exchange for all or a part of the Global Note pursuant to this
Section 2.05(d) shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such definitive
Notes to the Persons in whose names such definitive Notes are so registered.



At such time as all interests in a Global Note have been converted, canceled, purchased or
transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee in accordance
with standing procedures and instructions existing between the Depositary and the Custodian. At
any time prior to such cancellation, if any interest in a Global Note is exchanged for definitive
Notes, converted, canceled, purchased or transferred to a transferee who receives definitive Notes
therefor or any definitive Note is exchanged or transferred for part of such Global Note, the
principal amount of such Global Note shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Custodian, be appropriately reduced or
increased, as the case may be, and an endorsement shall be made on such Global Note, by the Trustee
or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.



None of the Company, the Trustee nor any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.


 


21









 





(e) (i) Until the Resale Restriction Termination Date, any stock certificate representing
shares of Common Stock issued upon conversion of such Note shall bear a legend in substantially the
following form (unless the Note or such shares of Common Stock have been transferred pursuant to a registration statement that
has become or been declared effective under the Securities Act and that continues to be effective
at the time of such transfer or pursuant to the exemption from registration provided by Rule 144
under the Securities Act or any similar provision then in force under the Securities Act, or such
shares of Common Stock have been issued upon conversion of Notes that have been transferred
pursuant to a registration statement that has become or been declared effective under the
Securities Act and that continues to be effective at the time of such transfer or pursuant to the
exemption from registration provided by Rule 144 under the Securities Act, or unless otherwise
agreed by the Company with written notice thereof to the Trustee and any transfer agent for the
Common Stock):



THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE ACQUIRER:




(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED
INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT
IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND




(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT
IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE
LAW, EXCEPT:




(A) TO LIZ CLAIBORNE, INC. (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, OR




(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER
THE SECURITIES ACT, OR




(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER
THE SECURITIES ACT, OR


 


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(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.



PRIOR TO ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE
RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY
REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE
WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE
AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.



Any such shares of Common Stock as to which such restrictions on transfer shall have expired
in accordance with their terms may, upon surrender of the certificates representing such shares of
Common Stock for exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of
Common Stock, which shall not bear the restrictive legend required by this Section 2.05(e)(i).



(f) Any Note or share of Common Stock issued upon the conversion or exchange of a Note that is
purchased or owned by the Company or any Affiliate thereof may not be resold by the Company or such
Affiliate unless registered under the Securities Act or resold pursuant to an exemption from the
registration requirements of the Securities Act in a transaction that results in such Notes or
shares of Common Stock, as the case may be, no longer being “restricted securities” (as defined
under Rule 144).



(g) Beneficial interests in a Restricted Global Note will be automatically exchanged into
beneficial interests in an Unrestricted Global Note without any action required by or on behalf of
the Holder (the “Automatic Exchange”) on the date that is specified by the Company and on or after
the Resale Restriction Termination Date (the “Automatic Exchange Date”). The Restricted Global
Note from which beneficial interests are transferred pursuant to an Automatic Exchange shall be
cancelled following the Automatic Exchange. The Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount
of beneficial interests transferred pursuant to the Automatic Exchange. The Company shall comply
with the procedures of the Depositary in effecting the Automatic Exchange.


 


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



The Trustee or the authenticating agent, if applicable, may authenticate any such substituted
Note and deliver the same upon the receipt of such security or indemnity as the Trustee, the
Company and, if applicable, the authenticating agent may require. Upon the issuance of any
substitute Note, the Company or the Trustee may require the payment by the Holder of a sum
sufficient to cover any tax, assessment or other governmental charge that may be imposed in
relation thereto and any other expenses connected therewith. In case any Note that has matured or
is about to mature or has been tendered for purchase upon a Fundamental Change or is about to be
converted into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as
applicable, shall become mutilated or be destroyed, lost or stolen, the Company may, in its sole
discretion, instead of issuing a substitute Note, pay or authorize the payment of or convert or
authorize the conversion of the same (without surrender thereof except in the case of a mutilated
Note), as the case may be, if the applicant for such payment or conversion shall furnish to the
Company, to the Trustee and, if applicable, to the authenticating agent, such security or indemnity
as may be required by them to save each of them harmless for any loss, liability, cost or expense
caused by or connected with such substitution, and, in every case of destruction, loss or theft,
evidence satisfactory to the Company, the Trustee and, if applicable, any Paying Agent or
Conversion Agent evidence of their satisfaction of the destruction, loss or theft of such Note and
of the ownership thereof.



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


 


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For greater certainty, every substitute Note issued pursuant to the provisions of this Section
2.06 by virtue of the fact that any Note is mutilated, destroyed, lost or stolen will be issued as
evidence of the same continuing indebtedness of the Company under this Indenture and in no
circumstances is the Company obligated under the Indenture to repay the principal amount of the
substituted Note by virtue of such mutilation, destruction or loss.



Section 2.07. Temporary Notes. Pending the preparation of Notes in certificated form, the
Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon
written request of the Company, authenticate and deliver temporary Notes (printed or lithographed).
Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of
the Notes in certificated form but with such omissions, insertions and variations as may be
appropriate for temporary Notes, all as may be determined by the Company. Every such temporary
Note shall be executed by the Company and authenticated by the Trustee or such authenticating agent
upon the same conditions and in substantially the same manner, and with the same effect, as the
Notes in certificated form. Without unreasonable delay, the Company will execute and deliver to
the Trustee or such authenticating agent Notes in certificated form (other than any Global Note)
and thereupon any or all temporary Notes (other than any Global Note) may be surrendered in
exchange therefor, at each office or agency maintained by the Company pursuant to Section 5.02 and
the Trustee or such authenticating agent shall authenticate and deliver in exchange for such
temporary Notes an equal aggregate principal amount of Notes in certificated form. Such exchange
shall be made by the Company at its own expense and without any charge therefor. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject
to the same limitations under this Indenture as Notes in certificated form authenticated and
delivered hereunder.



For greater certainty, each Note issued pursuant to the provisions of this Section 2.07 in
exchange for a temporary Note will be issued as evidence of the same continuing indebtedness of the
Company under this Indenture and in no circumstances is the Company obligated under the Indenture
to repay the principal amount of the temporary Note by virtue of the exchange.



Section 2.08. Cancellation of Notes Paid, Etc. All Notes surrendered for the purpose of
payment, purchase, conversion, exchange or registration of transfer, shall, if surrendered to the
Company or any Paying Agent or any Note Registrar or any Conversion Agent, be surrendered to the
Trustee and promptly canceled by it, or, if surrendered to the Trustee, shall be promptly canceled
by it, and no Notes shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee shall dispose of canceled Notes in accordance with
its customary procedures and, after such disposition, shall deliver a written confirmation of such
disposition to the Company, upon the Company’s written request. If the Company shall acquire any
of the Notes, such acquisition shall not operate as satisfaction of the indebtedness represented by
such Notes unless and until the same are delivered to the Trustee for cancellation.


 


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Section 2.09. CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if
then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in all notices issued to
Noteholders 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 Notes or on
such notice and that reliance may be placed only on the other identification numbers printed on the
Notes. The Company will promptly notify the Trustee in writing of any change in the “CUSIP”
numbers.



Section 2.10. Additional Notes; Purchases. The Company may, without the consent of the
Noteholders and notwithstanding Section 2.01, issue additional Notes hereunder with the same terms,
and if permissible as a “qualified reopening” for U.S. federal income tax purposes, with the same
CUSIP number as the Notes initially issued hereunder in an unlimited aggregate principal amount,
which will form the same series with the Notes initially issued hereunder. Prior to the issuance of
any such additional Notes, the Company shall deliver to the Trustee a Company Order, an Officers’
Certificate and an Opinion of Counsel, such Officers’ Certificate and Opinion of Counsel to cover
such matters as the Trustee shall reasonably request. The Company may also from time to time
purchase the Notes in open market purchases or negotiated transactions without prior notice to
Noteholders. Any Notes purchased by the Company shall be deemed to be no longer outstanding under
this Indenture.



ARTICLE 3

[Intentionally Omitted]




ARTICLE 4

Satisfaction and Discharge




Section 4.01. Satisfaction and Discharge. 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 Notes theretofore authenticated and delivered (other than (x)
Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.06 and (y) Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 5.04(d)) have been delivered to the Trustee for cancellation; or
(ii) the Company has deposited with the Trustee or delivered to Noteholders, as applicable, after the
Notes have become due and payable, whether at the Maturity Date, any Fundamental Change Purchase
Date, upon conversion (following, for the avoidance of doubt, the Observation Period) or otherwise,
cash, shares of Common Stock or a combination thereof, as applicable (solely to satisfy the
Company’s conversion obligation, if applicable), sufficient to pay all of the outstanding Notes 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 8.06 shall survive.



 


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ARTICLE 5

Particular Covenants of the Company




Section 5.01. Payment of Principal and Interest. The Company covenants and agrees that it
will cause to be paid the principal (including the Fundamental Change Purchase Price) of, and
accrued and unpaid interest, if any, on, each of the Notes at the places, at the respective times
and in the manner provided herein and in the Notes.



Section 5.02. Maintenance of Office or Agency. The Company will maintain an office or
agency where the Notes may be surrendered for registration of transfer or exchange or for
presentation for payment or purchase (“Paying Agent”) or for conversion (“Conversion Agent”) and
where notices and demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office.



The Company may also from time to time designate co-registrars in one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency. The terms “Paying Agent” and
“Conversion Agent” include any such additional or other offices or agencies, as applicable.



The Company hereby initially designates the Trustee as the Paying Agent, Note Registrar,
Custodian and Conversion Agent and the Corporate Trust Office
of the Trustee in New York City, New York as an office or agency of the Company for each of
the aforesaid purposes.


 


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Section 5.03. Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 8.10, a Trustee, so that there shall at all times be a Trustee hereunder.



Section 5.04. Provisions as to Paying Agent. (a) If the Company shall appoint a Paying
Agent other than the Trustee, the Company will cause such Paying Agent to execute and deliver to
the Trustee an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 5.04:




(i) that it will hold all sums held by it as such agent for the payment of the
principal (or the Fundamental Change Purchase Price, if applicable) of, and accrued and
unpaid interest on, the Notes in trust for the benefit of the Holders;




(ii) that it will give the Trustee prompt written notice of any failure by the
Company to make any payment of the principal (or such Fundamental Change Purchase Price,
as the case may be) of, and accrued and unpaid interest on, the Notes when the same shall
be due and payable; and




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



The Company shall, on or before each due date of the principal (or the Fundamental Change
Purchase Price, if applicable) of, or accrued and unpaid interest on, the Notes, deposit with the
Paying Agent a sum sufficient to pay such principal (or such Fundamental Change Purchase Price, as
the case may be) or accrued and unpaid interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee in writing of any failure to take such action; provided
that if such deposit is made on the due date, such deposit must be received by the Paying Agent by
11:00 a.m., New York City time, on such date.



(b) If the Company shall act as its own Paying Agent, it will, on or before each due date of
the principal (or the Fundamental Change Purchase Price, as the case may be) of, and accrued and
unpaid interest on, the Notes, set aside, segregate and hold in trust for the benefit of the
Holders a sum sufficient to pay such principal (or such Fundamental Change Purchase Price, as the
case may be) and accrued and unpaid interest so becoming due and will promptly notify the Trustee
in writing of any failure to take such action and of any failure by the Company to make any payment
of the principal (or such Fundamental Change Purchase Price, as the case may be) of, and accrued
and unpaid interest on, the
Notes when the same shall become due and payable. The Company may change the Paying Agent
without prior notice to the Noteholders.


 


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(c) Anything in this Section 5.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust by the Company or any Paying
Agent hereunder as required by this Section 5.04, such sums to be held by the Trustee upon the
trusts herein contained and upon such payment by the Company or any Paying Agent to the Trustee,
the Company or such Paying Agent shall be released from all further liability with respect to such
sums.



(d) Any money deposited with the Trustee or any Paying Agent (pursuant to Section 8.05), or
then held by the Company, in trust for the payment of the principal (or the Fundamental Change
Purchase Price, If applicable) of, and accrued and unpaid interest on, any Note and remaining
unclaimed for two years after such principal (or such Fundamental Change Purchase Price, as the
case may be) and interest has become due and payable shall be paid to the Company on request of the
Company contained in an Officers’ Certificate, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Company cause to be issued a press release, to
the effect that such money remains unclaimed and that, after a date specified therein, which shall
not be less than thirty (30) days from the date of such press release, any unclaimed balance of
such money then remaining will be repaid to the Company.



Section 5.05. Existence. Subject to Article 12, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate existence.



Section 5.06. Rule 144A Information Requirement and Annual Reports. (a) At any time the
Company is not subject to Sections 13 or 15(d) of the Exchange Act, the Company shall, so long as
any of the Notes or any share of Common Stock issuable upon conversion thereof shall, at such time,
constitute “restricted securities” within the meaning of Rule 144(a)(3), promptly provide to the
Trustee and shall, upon written request, provide to any Holder, beneficial owner or prospective
purchaser of such Notes or any share of Common Stock issued upon conversion of such Notes, the
information required to be delivered pursuant to Rule 144A(d)(4) to facilitate the resale of such
Notes or shares of Common Stock pursuant to Rule 144A.



(b) The Company shall deliver to the Trustee within 15 calendar days after the same is
required to be filed with the Commission (giving effect to any
grace period provided by Rule 12b-25 under the Exchange Act), copies of documents or reports,
if any, that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act. Any such document or report that the Company files with the Commission through
the Commission’s EDGAR system shall be deemed delivered to the Trustee for purposes of this Section
5.06(b) at the time such documents are filed or furnished via the Commission’s EDGAR system.


 


29









 





(c) Delivery of the reports, information and documents described in clause (b) above 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 conclusively rely exclusively on an Officers’ Certificate).



Section 5.07. 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 that would
prohibit or forgive the Company from paying all or any portion of the principal of or interest on
the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that
may affect the covenants or the performance of this Indenture; and the Company (to the extent it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not, by resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.



Section 5.08. Compliance Certificate; Statements as to Defaults. The Company shall deliver
to the Trustee within one hundred twenty (120) days after the end of each fiscal year of the
Company (beginning with the fiscal year ending on January 3, 2010) an Officers’ Certificate that
complies with Section 314(a)(4) of the Trust Indenture Act.



In addition, the Company shall deliver to the Trustee, as soon as possible, and in any event
within thirty (30) days after the Company becomes aware of the occurrence of any Event of Default
or Default, an Officers’ Certificate setting forth the details of such Event of Default or Default,
its status and the action that the Company is taking or proposes to take with respect thereto.


 


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ARTICLE 6

Lists of Noteholders and Reports by the Company and the Trustee




Section 6.01. Lists of Noteholders. The Company covenants and agrees that it will furnish
or cause to be furnished to the Trustee, semi-annually, not more than fifteen (15) days after each
June 15 and December 15 in each year beginning
with December 15, 2009, and at such other times as the Trustee may request in writing, within
thirty (30) days after receipt by the Company of any such request (or such lesser time as the
Trustee may reasonably request in order to enable it to timely provide any notice to be provided by
it hereunder), a list in such form as the Trustee may reasonably require of the names and addresses
of the Noteholders as of a date not more than fifteen (15) days (or such other date as the Trustee
may reasonably request in order to so provide any such notices) prior to the time such information
is furnished, except that no such list need be furnished so long as the Trustee is acting as Note
Registrar.



Section 6.02. Preservation and Disclosure of Lists. (a) The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as to the names and addresses of the
Noteholders contained in the most recent list furnished to it as provided in Section 6.01 or
maintained by the Trustee in its capacity as Note Registrar, if so acting. The Trustee may destroy
any list furnished to it as provided in Section 6.01 upon receipt of a new list so furnished.



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



(c) Every Noteholder, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of Noteholders
made pursuant to the Trust Indenture Act.



Section 6.03. Reports by Trustee. (a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty (60) days after each May
15 following the date of this Indenture, deliver to Holders a brief report, dated as of such May
15, that complies with the provisions of such Section 313(a).



(b) A copy of each such report shall, at the time of such transmission to Noteholders, be
filed by the Trustee with each stock exchange and automated quotation system upon which the Notes
are listed and with the Company. The Company will notify the Trustee in writing within a
reasonable time when the Notes are listed on any stock exchange or automated quotation system and
when any such listing is discontinued.


 


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ARTICLE 7

Defaults and Remedies




Section 7.01. Events of Default.



(a) Each of the following events shall be an “Event of Default” with respect to the Notes:




(i) default in the payment of interest, including any Additional Interest, if any, on
any Note when due and payable and the default continues for a period of thirty (30) days;




(ii) default in the payment of the principal amount of any Note when due and payable
on the Maturity Date, upon a repurchase at the option of the Holders pursuant to Article
16, upon declaration or otherwise;




(iii) failure by the Company to comply with its obligation to convert the Notes in
accordance with this Indenture upon exercise of a Holder’s conversion right and such
conversion default is not cured or such conversion is not rescinded within five (5)
Business Days;




(iv) failure by the Company to give a Fundamental Change Company Notice or notice of
a specified corporate transaction to Holders required pursuant to Section 15.01(a)(iii)
and Section 15.01(a)(iv), in each case when due;




(v) failure by the Company to comply with its obligations under Article 12;




(vi) failure by the Company for sixty (60) days after written notice from the Trustee
or the Holders of at least 25% in principal amount of the Notes then outstanding has been
received by the Company to comply with any of its other agreements contained in the Notes
or this Indenture;




(vii) default by the Company or any Subsidiary with respect to any mortgage,
agreement or other instrument under which there may be outstanding, or by which there may
be secured or evidenced, any indebtedness for money borrowed in excess of $30 million in
the aggregate of the Company and/or any such Subsidiary, whether such indebtedness now
exists or shall hereafter be created (A) resulting in such indebtedness becoming or being
declared due and payable prior to the stated maturity thereof, and such acceleration shall
not be rescinded or annulled, or such indebtedness shall not have been discharged, within
a period of ten (10) days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Notes then outstanding, a written notice specifying
such event of default and requiring that such acceleration be rescinded or annulled or
such indebtedness to be discharged or (B) constituting a failure to pay the principal or
interest of any such debt when due and payable at its stated maturity, upon required
repurchase, upon declaration or otherwise;


 


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(viii) (A) the entry by a court having jurisdiction in the premises of a decree or
order for relief in respect of the Company or any of its Significant Subsidiaries in an
involuntary case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law, (B) the entry by a court having
jurisdiction in the premises of a decree or order adjudging the Company or any Significant
Subsidiary as bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the Company or
any Significant Subsidiary under any applicable federal or state law or (C) the
appointment by a court having jurisdiction in the premises of a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the Company or
any Significant Subsidiary, or ordering the winding up or liquidation of a Significant
Subsidiary’s affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of sixty (60) consecutive
days;




(ix) the commencement by the Company or by a Significant Subsidiary of a voluntary
case or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief
in respect of the Company or of a Significant Subsidiary in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or the consent by it
to the filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of a Significant Subsidiary or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the admission by it
in writing of its inability to pay its debts generally as they become due, or the taking
of corporate action by the Company or by a Significant Subsidiary in furtherance of any
such action; or




(x) a final judgment for the payment of $30 million or more (excluding any amounts
covered by insurance) rendered against the Company or any Subsidiary, which judgment is
not discharged or stayed within sixty (60) days after (i) the date on which the right to
appeal thereof has expired if no such appeal has commenced or (ii) the date on which all
rights to appeal have been extinguished.


 


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(b) If an Event of Default occurs and is continuing, the Trustee by notice to the Company, or
the Holders of at least 25% in aggregate principal amount of the Notes then outstanding by notice
to the Company and the Trustee,
may, and the Trustee at the request of such Holders shall, declare 100% of the principal of
and accrued and unpaid interest, including Additional Interest, if any, on all the Notes to be due
and payable. Upon such a declaration, such principal and accrued and unpaid interest, including any
Additional Interest, if any, will be due and payable immediately. If an Event of Default specified
in Section 7.01(a)(viii) or Section 7.01(a)(ix) occurs, 100% of the principal of and accrued and
unpaid interest, including Additional Interest, if any, on the Notes will automatically become due
and payable.



(c) Notwithstanding anything to the contrary in the Indenture, to the extent elected by the
Company, the sole remedy for an Event of Default relating to (i) the Company’s failure to file with
the Trustee pursuant to Section 314(a)(1) of the Trust Indenture Act any documents or reports that
it is required to file with the Commission 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 under Section 5.06(b), will
after the occurrence of such an Event of Default consist exclusively of the right to receive
additional interest (the “Supplementary Interest”) on the Notes at a rate equal to 0.50% per annum
of the principal amount of the Notes outstanding for each day during the 180-day period beginning
on, and including, the occurrence of such an Event of Default during which such Event of Default is
continuing (in addition to any Special Interest that may accrue as a result of a registration
default as described under Article 14). If the Company makes such an election, such Supplementary
Interest will be payable in the same manner and on the same dates as the stated interest payable on
the Notes. On the one-hundred-eighty-first (181st) day after the occurrence of such Event of
Default (if the Event of Default relating to the Company’s obligations referred to in clauses (i)
and (ii) of this Section 7.01(c) is not cured or waived prior to such one-hundred-eighty-first
(181st) day), the Notes will be subject to acceleration as provided in Section 7.01(b). A Holder’s
right to receive Supplementary Interest for an Event of Default relating to the Company’s failure
to comply with its obligations referred to in clauses (i) and (ii) of this Section 7.01(c) will not
affect the rights of the Holders in the event of an occurrence of any other Event of Default. In
the event the Company does not timely elect to pay the Supplementary Interest following an Event of
Default in accordance with this paragraph, the Notes will be subject to acceleration as provided in
Section 7.01(b). To make such election to pay Supplementary Interest as the sole remedy during the
first one-hundred-eighty (180) days after the occurrence of an Event of Default referred to in
clauses (i) and (ii) of this Section 7.01(c), the Company must notify the Holders and 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 Notes will be immediately subject to acceleration
as provided in Section 7.01(b).


 


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Section 7.02. Payments of Notes on Default; Suit Therefor. If an Event of Default described
in clause (i) or (ii) of Section 7.01(a) shall have occurred, the Company shall, upon demand of the
Trustee, pay to it, for the benefit of the Holders, the whole amount then due and payable on the
Notes for principal and interest with interest on any overdue principal and interest at the rate borne by the Notes at
such time, and, in addition thereto, such further amount as shall be sufficient to cover any
amounts due to the Trustee under Section 8.06. If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute
such proceeding to judgment or final decree and may enforce the same against the Company or any
other obligor upon the Notes and collect the monies adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon the Notes, wherever
situated.



In the event there shall be pending proceedings for the bankruptcy or for the reorganization
of the Company or any other obligor on the Notes under title 11 of the United States Code, or any
other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or taken possession of
the Company or such other obligor, the property of the Company or such other obligor, or in the
event of any other judicial proceedings relative to the Company or such other obligor upon the
Notes, or to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section 7.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal and accrued and unpaid interest in respect of the Notes, and, in case of any
judicial proceedings, to file such proofs of claim and other papers or documents and to take such
other actions as it may deem 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 of the Noteholders allowed in such judicial proceedings
relative to the Company or any other obligor on the Notes, its or their creditors, or its or their
property, and to collect and receive any monies or other property payable or deliverable on any
such claims, and to distribute the same after the deduction of any amounts due the Trustee under
Section 8.06; and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
custodian or similar official is hereby authorized by each of the Noteholders to make such payments
to the Trustee, as administrative expenses, and, in the event that the Trustee shall consent to the
making of such payments directly to the Noteholders, to pay to the Trustee any amount due it for
reasonable compensation, expenses, advances and disbursements, including agents and counsel fees,
and including any other amounts due to the Trustee under Section 8.06 hereof, incurred by it up to
the date of such distribution. To the extent that such payment of reasonable compensation,
expenses, advances and disbursements out of the estate in any such proceedings shall be denied for
any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and
all distributions, dividends, monies, securities and other property that the Holders may be
entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or
otherwise.


 


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Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment
or composition affecting the Noteholder or the rights of any Noteholder, or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such proceeding.



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



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



Section 7.03. Application of Monies Collected by Trustee. Any monies collected by the
Trustee pursuant to this Article 7 with respect to the Notes shall be applied in the following
order, at the date or dates fixed by the Trustee for the distribution of such monies, upon
presentation of the several Notes, and stamping thereon the payment, if only partially paid, and
upon surrender thereof, if fully paid:



First, to the payment of all amounts due the Trustee under Section 8.06;



Second, in case the principal of the outstanding Notes shall not have become due and be
unpaid, to the payment of interest on the Notes in default in the order of the date due of the
installments of such interest, with interest (to the extent that such interest has been collected
by the Trustee) upon the overdue installments of interest at the rate borne by the Notes at such
time, such payments to be made ratably to the Persons entitled thereto;



Third, in case the principal of the outstanding Notes shall have become due, by declaration or
otherwise, and be unpaid to the payment of the whole amount, including the payment of the
Fundamental Change Purchase Price and the cash component of the conversion obligation, if any, then
owing and unpaid upon the Notes for principal and interest, with interest on the overdue principal
and (to the extent that such interest has been collected by the Trustee) upon overdue installments
of interest at the rate borne by the Notes at such time, and in case such monies shall be
insufficient to pay in full the whole amounts so due and
unpaid upon the Notes, then to the payment of such principal and interest without preference
or priority of principal, over interest, or of interest over principal or of any installment of
interest over any other installment of interest, or of any Note over any other Note, ratably to the
aggregate of such principal and accrued and unpaid interest; and


 


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Fourth, to the payment of the remainder, if any, to the Company.



Section 7.04. Proceedings by Noteholders. No Holder of any Note shall have any right by
virtue of or by availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture, or for the
appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any
other remedy hereunder, unless such Holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof, as provided in Section 7.01, and
unless also the Holders of not less than 25% in aggregate principal amount of the Notes then
outstanding shall have made a written request to the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such security
or indemnity reasonably satisfactory to it against any loss, liability or expense to be incurred
therein or thereby, and the Trustee for sixty (60) days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such action, suit or
proceeding and no direction that, in the opinion of the Trustee, is inconsistent with such written
request shall have been given to the Trustee by the Holders of a majority in principal amount of
the Notes outstanding within such 60-day period pursuant to Section 7.07; it being understood and
intended, and being expressly covenanted by the taker and Holder of every Note with every other
taker and Holder and the Trustee that no one or more Noteholders shall have any right in any manner
whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other Noteholder, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all Noteholders (except as
otherwise provided herein). For the protection and enforcement of this Section 7.04, each and
every Noteholder and the Trustee shall be entitled to such relief as can be given either at law or
in equity.



Notwithstanding any other provision of this Indenture and any provision of any Note, the right
of any Noteholder to receive payment of the principal (including the Fundamental Change Purchase
Price upon purchase pursuant to Section 16.01) of, and accrued and unpaid interest on such Note, on
or after the respective due dates expressed or provided for in such Note or in this Indenture, or
to institute suit for the enforcement of any such payment on or after such respective dates against
the Company shall not be impaired or affected without the consent of such Noteholder.


 


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



Section 7.05. Proceedings by Trustee. In case of an Event of Default, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as are necessary to protect and enforce any such rights, either by
suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.



Section 7.06. Remedies Cumulative and Continuing. Except as provided in the last paragraph
of Section 2.06, all powers and remedies given by this Article 7 to the Trustee or to the
Noteholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the Holders, by judicial
proceedings or otherwise, to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of
the Notes to exercise any right or power accruing upon any Default or Event of Default shall impair
any such right or power, or shall be construed to be a waiver of any such Default or any
acquiescence therein; and, subject to the provisions of Section 7.04, every power and remedy given
by this Article 7 or by law to the Trustee or to the Noteholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the Noteholders.



Section 7.07. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders.
The Holders of a majority in aggregate principal amount of the Notes at the time outstanding
determined in accordance with Section 9.04 shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Notes; provided, however, that (a) such
direction shall not be in conflict with any rule of law or with this Indenture, and (b) the Trustee
may take any other action deemed proper by the Trustee that is not inconsistent with such
direction. The Trustee may refuse to follow any direction that it determines is unduly prejudicial
to the rights of any other Holder or that would involve the Trustee in personal liability. The
Holders of a majority in aggregate principal amount of the Notes at the time outstanding determined
in accordance with Section 9.04 may on behalf of the Holders of all of the Notes waive any past
Default or Event of Default hereunder and its consequences except with respect to a Default
described in Section 7.01(a)(i), (ii) or (iii) and rescind any such acceleration with respect to
the Notes and its consequences if (i) rescission



 


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would not
conflict with any judgment or decree of a court of competent jurisdiction, (ii) all existing Events of Default, other than a
Default with respect to the nonpayment of the principal of and interest, as described in Section
7.01(i) and (ii) herein, on the Notes that have become due solely by such declaration of
acceleration, have been cured or waived, and (iii) all fees and expenses of the Trustee have been
paid. Upon any such waiver, the Company, the Trustee and the Holders shall be restored to their
former positions and rights hereunder; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event
of Default hereunder shall have been waived as permitted by this Section 7.07, said Default or
Event of Default shall for all purposes of the Notes and this Indenture be deemed to have been
cured and to be not continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereon.



Section 7.08. Notice of Defaults. The Trustee shall, within ninety (90) days after the
occurrence and continuance of a Default of which a Responsible Officer has actual knowledge, mail
to all Noteholders as the names and addresses of such Holders appear upon the Note Register, notice
of all Defaults known to a Responsible Officer, unless such Defaults shall have been cured or
waived before the giving of such notice; and provided that, except in the case of a Default in the
payment of the principal (or any Fundamental Change Purchase Price, if applicable) of, or accrued
and unpaid interest on, any of the Notes, or a Default in the payment or delivery of the
consideration due upon conversion, then in any such event the Trustee shall be protected in
withholding such notice if and so long as the Trustee in good faith determine that the withholding
of such notice is in the interests of the Noteholders.



Section 7.09. Undertaking to Pay Costs. All parties to this Indenture agree, and each
Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in
its discretion, require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that
such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; provided that the provisions of this Section
7.09 (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Noteholder, or group of Noteholders, holding in the aggregate more than 10%
in principal amount of the Notes at the time outstanding determined in accordance with Section
9.04, or to any suit instituted by any Noteholder for the enforcement of the payment of the
principal of or accrued and unpaid interest on any Note (including, but not limited to, the
Fundamental Change Purchase Price, with respect to the Notes being purchased as provided in this
Indenture) on or after the due date expressed or provided for in such Note or to any suit for the
enforcement of the right to convert any Note in accordance with the provisions of Article 15.


 


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ARTICLE 8

Concerning the Trustee




Section 8.01. Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence
of an Event of Default and after the curing or waiver of all Events of Default that may have
occurred, undertakes to perform such duties and only such duties as are specifically set forth in
this Indenture. In case an Event of Default has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of such person’s own affairs; provided that if an Event of Default
occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or
powers under this Indenture at the request or direction of any of the Holders unless such Holders
have offered an indemnity or security, satisfactory to the Trustee, against the loss, liability or
expenses that might be incurred by it in compliance with such request or direction.



No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure to act or its own willful misconduct, except
that:



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




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




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


 


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(b) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Officers of the Trustee, unless it shall be proved in a court of competent
jurisdiction that the Trustee acted with willful
misconduct or in bad faith or was grossly negligent or reckless in ascertaining the pertinent
facts;



(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the Holders of not less than a majority in
principal amount of the Notes at the time outstanding determined as provided in Section 9.04
relating to the time, method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;



(d) whether or not therein provided, every provision of this Indenture relating to the conduct
or affecting the liability of, or affording protection to, the Trustee shall be subject to the
provisions of this Section 8.01;



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



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



(g) in the absence of written investment direction from the Company, all cash received by the
Trustee shall be placed in a non-interest bearing trust account, and in no event shall the Trustee
be liable for the selection of investments or for investment losses incurred thereon or for losses
incurred as a result of the liquidation of any such investment prior to its maturity date or the
failure of the party directing such investments prior to its maturity date or the failure of the
party directing such investment to provide timely written investment direction, and the Trustee
shall have no obligation to invest or reinvest any amounts held hereunder in the absence of such
written investment direction from the Company; and



(h) in the event that the Trustee is also acting as Custodian, Note Registrar, Paying Agent,
Conversion Agent or transfer agent hereunder, the rights, privileges, immunities, benefits and
protections afforded to the Trustee pursuant to this Article 8 shall also be afforded to such
Custodian, Note Registrar, Paying Agent, Conversion Agent or transfer agent.



None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers.


 


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Section 8.02. Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section
8.01:



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



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



(c) before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. 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. The Trustee
may consult with counsel, of its selection, and require an Opinion of Counsel and any advice of
such counsel or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or omitted by the Trustee hereunder in good faith and in accordance
with such advice or Opinion of Counsel;



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



(e) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document, but the Trustee, 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
expense of the Company and shall incur no liability of any kind by reason of such inquiry or
investigation;



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



(g) the permissive rights of the Trustee enumerated herein shall not be construed as duties.


 


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In no event shall the Trustee be liable for any special, indirect or consequential loss or
damage of any kind whatsoever (including, but not limited to, lost profits), even if the Trustee
has been advised of the likelihood of such loss or damage and regardless of the form of action
other than any such loss or damage caused by the Trustee’s willful misconduct or gross negligence.
The Trustee shall not be charged with knowledge of any Default or Event of Default with respect to
the Notes, unless either (1) a Responsible Officer shall have actual knowledge of such Default or
Event of Default or (2) written notice of such Default or Event of Default shall have been given to
the Trustee by the Company or by any Holder.



Section 8.03. No Responsibility for Recitals, Etc. The recitals contained herein and in the
Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this Indenture, the Offering
Memorandum or of the Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and delivered by the Trustee in
conformity with the provisions of this Indenture.



Section 8.04. Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes. The
Trustee, any Paying Agent, any Conversion Agent or Note Registrar, in its individual or any other
capacity, may become the owner or pledgee of Notes with the same rights it would have if it were
not the Trustee, Paying Agent, Conversion Agent or Note Registrar.



Section 8.05. Monies to Be Held in Trust. All monies received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which they were received.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for interest on any money received
by it hereunder except as may be agreed from time to time by the Company and the Trustee.



 


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Section 8.06. Compensation and Expenses of Trustee. The Company covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for
all services rendered by it hereunder in any capacity (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) as mutually agreed to in
writing between the Trustee and the Company, and the Company will pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances reasonably incurred or made by
the Trustee in accordance with any of the provisions of this Indenture in any capacity thereunder
(including the reasonable compensation and the expenses and disbursements of its agents and counsel and of
all Persons not regularly in its employ), except any such expense, disbursement or advance as shall
have been caused by its gross negligence, willful misconduct or bad faith. The Company also
covenants to indemnify the Trustee in any capacity under this Indenture and any other document or
transaction entered into in connection herewith and its agents and any authenticating agent for,
and to hold them harmless against, any loss, claim, damage, liability or expense incurred without
gross negligence, willful misconduct or bad faith on the part of the Trustee, its officers,
directors, agents or employees, or such agent or authenticating agent, as the case may be, and
arising out of or in connection with the acceptance or administration of this trust or in any other
capacity hereunder, including the costs and expenses of defending themselves against any claim of
liability in the premises. The obligations of the Company under this Section 8.06 to compensate or
indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances
shall be secured by a senior claim to which the Notes are hereby made subordinate on all money or
property held or collected by the Trustee, except, subject to the effect of Section 7.03, funds
held in trust herewith for the benefit of the Holders of particular Notes. The Trustee’s right to
receive payment of any amounts due under this Section 8.06 shall not be subordinated even though
the Notes may be so subordinated. The obligation of the Company under this Section 8.06 shall
survive the satisfaction and discharge of this Indenture and the earlier resignation or removal or
the Trustee. The Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld. The indemnification provided in this Section 8.06 shall extend
to the officers, directors, agents and employees of the Trustee.



Without prejudice to any other rights available to the Trustee under applicable law, when the
Trustee and its agents and any authenticating agent incur expenses or render services after an
Event of Default specified in Section 7.01(a)(ix) or Section 7.01(a)(x) occurs, the expenses and
the compensation for the services are intended to constitute expenses of administration under any
bankruptcy, insolvency or similar laws.



Section 8.07. Officers’ Certificate as Evidence. Except as otherwise provided in Section
8.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or omitting any
action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of gross negligence, willful misconduct, recklessness or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’
Certificate delivered to the Trustee, and such Officers’ Certificate, in the absence of gross
negligence, willful misconduct, recklessness or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture
upon the faith thereof.


 


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Section 8.08. Conflicting Interests of Trustee. After qualification of this Indenture under
the Trust Indenture Act, if the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest within ninety
(90) days, apply to the Commission for permission to continue as Trustee or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.



Section 8.09. Eligibility of Trustee. There shall at all times be a Trustee hereunder which
shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section 8.09, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 8.09, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article 8.



Section 8.10. Resignation or Removal of Trustee. (a) The Trustee may at any time resign by
giving written notice of such resignation to the Company and by mailing notice thereof to the
Noteholders at their addresses as they shall appear on the Note Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within sixty (60) days after the
mailing of such notice of resignation to the Noteholders, the resigning Trustee may, at the expense
of the Company and upon ten (10) Business Days’ notice to the Company and the Noteholders, petition
any court of competent jurisdiction for the appointment of a successor trustee, or any Noteholder
who has been a bona fide Holder of a Note or Notes for at least six months may, subject to the
provisions of Section 7.09, on behalf of himself and all others similarly situated, petition any
such court for the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor trustee.



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




(i) the Trustee shall fail to comply with Section 8.08 within a reasonable time after
written request therefor by the Company or by any Noteholder who has been a bona fide
Holder of a Note or Notes for at least six months; or


 


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(ii) the Trustee shall cease to be eligible in accordance with the provisions of
Section 8.09 and shall fail to resign after written request therefor by the Company or by
any such Noteholder; or




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



then, in any such case, the Company may by a Board Resolution remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 7.09, any Noteholder who has been a
bona fide holder of a Note or Notes for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.



(c) The Holders of a majority in aggregate principal amount of the Notes at the time
outstanding, as determined in accordance with Section 9.04, may at any time remove the Trustee and
nominate a successor trustee that shall be deemed appointed as successor trustee unless within ten
(10) days after notice to the Company of such nomination the Company objects thereto, in which case
the Trustee so removed or any Noteholder, upon the terms and conditions and otherwise as in Section
8.10(a) provided, may petition any court of competent jurisdiction for an appointment of a
successor trustee.



(d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant
to any of the provisions of this Section 8.10 shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 8.11.



Section 8.11. Acceptance by Successor Trustee. Any successor trustee appointed as provided
in Section 8.10 shall execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally named as trustee
herein; but, nevertheless, on the written request of the Company or of the successor trustee, the
trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of
Section 8.06, execute and deliver an instrument transferring to such successor trustee all the
rights and powers of the trustee so ceasing to act. Upon request of any such successor
trustee, the Company shall execute any and all instruments in writing for more fully and
certainly vesting in and conferring to such successor trustee all such rights and powers. Any
trustee ceasing to act shall, nevertheless, retain a senior claim to which the Notes are hereby
made subordinate on all money or property held or collected by such trustee as such, except for
funds held in trust for the benefit of Holders of particular Notes, to secure any amounts then due
it pursuant to the provisions of Section 8.06.


 


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No successor trustee shall accept appointment as provided in this Section 8.11 unless at the
time of such acceptance such successor trustee shall be qualified under the provisions of Section
8.08 and be eligible under the provisions of Section 8.09.



Upon acceptance of appointment by a successor trustee as provided in this Section 8.11, each
of the Company and the successor trustee, at the written direction and at the expense of the
Company shall mail or cause to be mailed notice of the succession of such trustee hereunder to the
Noteholders at their addresses as they shall appear on the Note Register. If the Company fails to
mail such notice within ten (10) days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the Company.



Section 8.12. Succession by Merger, Etc. Any corporation or other entity into which the
Trustee may be merged or converted or with which it may be consolidated, or any corporation or
other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation or other entity succeeding to all or substantially all of the corporate
trust business of the Trustee (including the administration of this Indenture), shall be the
successor to the Trustee hereunder without the execution or filing of any paper or any further act
on the part of any of the parties hereto; provided that in the case of any corporation or other
entity succeeding to all or substantially all of the corporate trust business of the Trustee such
corporation or other entity shall be qualified under the provisions of Section 8.08 and eligible
under the provisions of Section 8.09.



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


 


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Section 8.13. Limitation on Rights of Trustee as Creditor. If and when the Trustee shall be
or become a creditor of the Company (or any other obligor upon the Notes), after qualification
under the Trust Indenture Act, the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of the claims against the Company (or any such other
obligor).



Section 8.14. Trustee’s Application for Instructions from the Company. Any application by
the Trustee for written instructions from the Company (other than with regard to any action
proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders
under this Indenture) may, at the option of the Trustee, set forth in writing any action proposed
to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such
action shall be taken or such omission shall be effective. The Trustee shall not be liable for any
action taken by, or omission of, the Trustee in accordance with a proposal included in such
application on or after the date specified in such application (which date shall not be less than
three (3) Business Days after the date any officer that the Company has indicated to the Trustee
should receive such application actually receives such application, unless any such officer shall
have consented in writing to any earlier date), unless, prior to taking any such action (or the
effective date in the case of any omission), the Trustee shall have received written instructions
in accordance with this Indenture in response to such application specifying the action to be taken
or omitted.



ARTICLE 9

Concerning the Noteholders




Section 9.01. Action by Noteholders. Whenever in this Indenture it is provided that the
Holders of a specified percentage in aggregate principal amount of the Notes may take any action
(including the making of any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such action, the Holders of
such specified percentage have joined therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by Noteholders in person or by agent or proxy appointed in
writing. Whenever the Company or the Trustee solicits the taking of any action by the Holders, the
Company or the Trustee may, but shall not be required to, fix in advance of such solicitation, a
date as the record date for determining Noteholders entitled to take such action. The record date,
if one is selected, shall be not more than fifteen (15) days prior to the date of commencement of
solicitation of such action.



Section 9.02. Proof of Execution by Noteholders. Subject to the provisions of Section 8.01
and Section 8.02, proof of the execution of any instrument by a Noteholder or its agent or proxy
shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed by the Trustee or
in such manner as shall be satisfactory to the Trustee. The holding of Notes shall be proved by
the Note Register or by a certificate of the Note Registrar.


 


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Section 9.03. Who Are Deemed Absolute Owners. The Company, the Trustee, any authenticating
agent, any Paying Agent, any Conversion Agent and any Note Registrar may deem the Person in whose
name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute
owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of
ownership or other writing thereon made by any Person other than the Company or any Note Registrar)
for the purpose of receiving payment of or on account of the principal of and (subject to Section
2.03) accrued and unpaid interest on such Note, for conversion or purchase of such Note and for all
other purposes; and neither the Company nor the Trustee nor any Paying Agent nor any Conversion
Agent nor any Note Registrar shall be affected by any notice to the contrary. All such payments so
made to any Holder for the time being, or upon its order, shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for monies payable upon any
such Note.



Section 9.04. Company-Owned Notes Disregarded. In determining whether the Holders of the
requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or
other action under this Indenture, Notes that are (i) owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect common control with
the Company and (ii) have been cancelled in accordance with Section 2.08 shall be disregarded and
deemed not to be outstanding for the purpose of any such determination; provided that for the
purposes of determining whether the Trustee shall be protected in relying on any such direction,
consent, waiver or other action only Notes that a Responsible Officer knows are so owned shall be
so disregarded. Notes so owned that have been pledged in good faith may be regarded as outstanding
for the purposes of this Section 9.04 if the pledgee shall establish to the satisfaction of the
Trustee the pledgee’s right to so act with respect to such Notes and that the pledgee is not the
Company or a Person directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company. In the case of a dispute as to such right, any decision by the
Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request of
the Trustee, the Company shall promptly furnish to the Trustee an Officers’ Certificate listing and
identifying all Notes, if any, known by the Company to be owned or held by or for the account of
any of the above described Persons; and, subject to Section 8.01, the Trustee shall be entitled to
accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Notes not listed therein are outstanding for the purpose of any such determination.


 


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Section 9.05. Revocation of Consents; Future Holders Bound. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 9.01, of the taking of any action by the Holders of the percentage in aggregate principal
amount of the Notes specified in this Indenture in connection with such action, any Holder of a
Note that is shown by the evidence to be included in the Notes the Holders of which have consented
to such action may, by filing written notice with the Trustee at its Corporate Trust Office and
upon proof of holding as provided in Section 9.02, revoke such action so far as concerns such Note.
Except as aforesaid, any such action taken by the Holder of any Note shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such Note and of any Notes
issued in exchange or substitution therefor or upon registration of transfer thereof, irrespective
of whether any notation in regard thereto is made upon such Note or any Note issued in exchange or
substitution therefor or upon registration of transfer thereof.



ARTICLE 10

[Intentionally Omitted]




ARTICLE 11

Supplemental Indentures




Section 11.01. Supplemental Indentures Without Consent of Noteholders. The Company, at the
Company’s expense, may, from time to time and at any time, enter into an indenture or indentures
supplemental hereto for one or more of the following purposes to:



(a) cure any ambiguity, omission, defect or inconsistency that does not adversely affect
Holders in any material respect;



(b) provide for the assumption by a Successor Company of the obligations of the Company under
the Indenture;



(c) increase the Conversion Rate of the Notes;



(d) add guarantees or additional obligors with respect to the Notes;



(e) secure the Notes;



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



(g) make any change that does not adversely affect the rights of any Holder in any material
aspects;



(h) conform the provisions of the Indenture and the form or terms of the Notes to the section
entitled “Description of notes” as set forth in the Offering Memorandum;



(i) add any additional Events of Default;


 


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(j) comply with the requirements of the Commission or any applicable securities depositary or
stock exchange on which the Common Stock may be listed;



(k) provide for uncertificated Notes in addition to or in place of certificated Notes;



(l) make any amendment to the provisions of the Indenture relating to the transfer and
legending of Notes; provided, however, that (a) compliance with the Indenture as so amended would
not result in Notes being transferred in violation of the Securities Act or any applicable
securities law and (b) such amendment does not materially and adversely affect the rights of
Holders to transfer Notes; or



(m) evidence and provide the acceptance of the appointment of a successor Trustee under the
Indenture.



Upon the written request of the Company, the Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall not be obligated
to, but may in its discretion, enter into any supplemental indenture that affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise.



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



Section 11.02. Supplemental Indentures With Consent of Noteholders. With the consent
(evidenced as provided in Article 9) of the Holders of at least a majority in aggregate principal
amount of the Notes at the time outstanding (determined in accordance with Article 9 and including,
without limitation, consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes), the Company, at the Company’s expense, may, from time to time, and at any time
enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this Indenture or any
supplemental indenture or of modifying in any manner the rights of the Holders; provided, however,
that without the consent of each Holder of an outstanding Note affected, no such indenture or
supplemental indenture shall:



(a) reduce the amount of Notes outstanding whose Holders must consent to an amendment;



(b) reduce the rate of or extend the stated time for payment of interest, including Additional
Interest, on any Note;


 


51









 





(c) reduce the principal of, or extend the Maturity Date of, any Note;



(d) adversely affects the conversion rights of any Notes;



(e) reduce the Fundamental Change Purchase Price of any Note or amend or modify in any manner
adverse to the Holders the Company’s obligation to make such payments, whether through an amendment
or waiver of provisions in the covenants, definitions or otherwise;



(f) make any Note payable in currency other than that stated in the Note;



(g) adversely affect the ranking of the Notes in right of payment;



(h) impair the right of any Holder to receive payment of principal and interest, including
Additional Interest, on such Holder’s Notes on or after the due dates therefor or to institute suit
for the enforcement of any payment on or with respect to such Holder’s Note; or



(i) make any change in this Article 11 that requires each Holder’s consent or in the waiver
provisions in Section 7.01 or Section 7.07.



Upon the written request of the Company, and upon the filing with the Trustee of evidence of
the consent of Noteholders as aforesaid and subject to Section 11.05, the Trustee shall join with
the Company in the execution of such supplemental indenture unless such supplemental indenture
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental
indenture.



It shall not be necessary for the consent of the Noteholders under this Section 11.02 to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof. After an amendment under this Indenture becomes
effective, the Company shall mail to the Holders a notice briefly describing such amendment.
However, the failure to give such notice to all the Holders, or any defect in the notice, will not
impair or affect the validity of the amendment.



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


 


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Section 11.04. Notation on Notes. Notes authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article 11 may, at the Company’s
expense, bear a notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company or the Trustee shall so determine, new Notes so modified as
to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this
Indenture contained in any such supplemental indenture may, at the Company’s expense, be prepared
and executed by the Company, authenticated by the Trustee (or an authenticating agent duly
appointed by the Trustee pursuant to Section 17.11) and delivered in exchange for the Notes then
outstanding, upon surrender of such Notes then outstanding.



Section 11.05. Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee. In
addition to the documents required by Section 17.05, the Trustee shall receive an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions precedent, if any, to the
execution of such supplemental indenture have been complied with, as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements of this Article 11
and is permitted or authorized by the Indenture.



ARTICLE 12

Consolidation, Merger, Sale of Assets




Section 12.01. When Company May Merge or Transfer Assets. The Company shall not consolidate
with or merge with or into, or sell, convey, transfer or lease all or substantially all of its
properties and assets to, another Person, unless:



(a) the resulting, surviving or transferee Person (if not the Company) (the “Successor
Company”) is a corporation organized and existing under the laws of the United States, any state
thereof or the District of Columbia and such Successor Company (if not the Company) expressly
assumes, by a supplemental indenture, all of the Company’s obligations under the Notes and the
Indenture;



(b) if as a result of such transaction the Notes become convertible into common stock or other
securities issued by a third party, such third party fully
and unconditionally guarantees all obligations of the Company or such Successor Company under
the Notes and the Indenture;


 


53









 





(c) immediately after giving effect to such transaction, no Default or Event of Default has
occurred and is continuing under the Indenture; and



(d) the Company has delivered to the Trustee the Officers’ Certificate and Opinion of Counsel
pursuant to Section 12.03.



Section 12.02. Successor to Be Substituted. In case of any such consolidation, merger,
sale, conveyance, transfer or lease in which the Company is not the surviving corporation and upon
the assumption by the Successor Company, by supplemental indenture, executed and delivered to the
Trustee, of the due and punctual payment of the principal of and interest (including Additional
Interest, if any) on all of the Notes, and the due and punctual performance and observance of all
of the covenants and conditions of the Indenture to be performed or satisfied by the Company,
except in the case of a lease of all or substantially all of the Company’s properties and assets,
such Successor Company shall succeed to, and be substituted for, and may exercise every right and
power of, the Company, with the same effect as if it had been named herein as the party of this
first part, and the Company shall be discharged from its obligations under the Notes and the
Indenture. Such Successor Company thereupon may cause to be signed, and may issue either in its
own name or in the name of the Company any or all of the Notes, issuable hereunder that theretofore
shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such
Successor Company instead of the Company and subject to all the terms, conditions and limitations
in the Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause to be
authenticated and delivered, any Notes that previously shall have been signed and delivered by the
Officers of the Company to the Trustee for authentication, and any Notes that such Successor
Company thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the
Notes so issued shall in all respects have the same legal rank and benefit under the Indenture as
the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though
all of such Notes had been issued at the date of the execution hereof. In the event of any such
consolidation, merger, sale, conveyance or transfer, upon compliance with this Article 12 the
Person named as the “Company” in the first paragraph of this Indenture or any successor that shall
thereafter have become such in the manner prescribed in this Article 12 may be dissolved, wound up
and liquidated at any time thereafter and such Person shall be discharged from its liabilities as
obligor and maker of the Notes and from its obligations under this Indenture. The provisions in
this Article 12 shall not apply to the sale, conveyance, transfer or lease of assets among the
Subsidiaries of the Company.



Section 12.03. Opinion Of Counsel To Be Given Trustee. Prior to execution of any
supplemental indenture pursuant to this Article 12, the Trustee shall receive an Officers’
Certificate and an Opinion of Counsel (each stating that
such transaction and supplemental indenture comply with the Indenture and all conditions
precedent herein provided for relating to such transaction have been complied with) as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or lease and any such
assumption complies with the provisions of this Article 12.


 


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ARTICLE 13

Immunity of Incorporators, Shareholders, Officers and Directors




Section 13.01. Indenture and Notes Solely Corporate Obligations. No recourse for the
payment of the principal of or accrued and unpaid interest on any Note, nor for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture or in any supplemental indenture or in any Note, nor
because of the creation of any indebtedness represented thereby, shall be had against any
incorporator, shareholder, employee, agent, officer or director or Subsidiary, as such, past,
present or future, of the Company or of any Successor Company, either directly or through the
Company or any Successor Company, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly understood that
all such liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Notes.



ARTICLE 14

Special Interest




Section 14.01. Special Interest. (a) If, at any time during the six-month period beginning
on, and including, the date that is six months after the last date of original issuance of the
Notes, (1) the Company fails to timely file any document or report that it is required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (after giving
effect to all applicable grace periods thereunder and other than reports on Form 8-K), or (2) the
Notes are not otherwise freely tradable by Holders other than the Company’s Affiliates (as a result
of restrictions pursuant to U.S. securities law or the terms of this Indenture or the Notes) (each
such event referred to in clauses (1) and (2), a “Restricted Transfer Default”), the Company shall
pay additional interest (the “Special Interest”) in accordance with this Article 14.



(b) Special Interest shall accrue on all Notes then outstanding at the rate of 0.50% per annum
of the principal amount of such Notes for each day during such period that a Restricted Transfer
Default has occurred and is continuing. Following the cure of all Restricted Transfer Defaults, the
accrual of Special Interest arising from Restricted Transfer Defaults shall cease. Special Interest
will be payable in arrears on each Interest Payment Date following accrual in the same manner as
regular interest on the Notes pursuant to Section 2.03 and Section 5.01.


 


55









 





(c) Further, if, and for so long as, the restrictive legend on the Notes has not been removed
or the Notes are not otherwise freely tradable by Holders other than the Company’s Affiliates
(without restrictions pursuant to U.S. securities law or the terms of this Indenture or the Notes)
as of the 365th day after the last date of original issuance of the Notes, the Company
shall pay Special Interest on all Notes then outstanding at a rate equal to 0.50% per annum of the
principal amount of Notes outstanding until the restrictive legend on the Notes has been removed
and the Notes are freely tradable as described above.



(d) As used in Section 14.01(a), documents or reports that the Company is required to “file”
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act does not include documents
or reports that the Company furnishes to the Commission pursuant to Section 13 or 15(d) of the
Exchange Act.



(e) The Special Interest that is payable as a result of the occurrence of a Restricted
Transfer Default in accordance with this Article 14 shall be in addition to, and not in lieu of,
any Supplementary Interest that may be payable as a result of the Company’s election pursuant to
Section 7.01.



(f) Any Notes that are, when issued, Restricted Securities shall be issued with a restricted
CUSIP number. Until such time as the Company notifies the Trustee to remove the restrictive legend
specified in Section 2.05(d) from the Notes, the restricted CUSIP shall be the CUSIP number for the
Notes. At such time as the Company notifies the Trustee to remove the restrictive legend specified
in Section 2.05(d) from the Notes, such legend shall for all purposes of this Indenture and the
Notes (including this Section 14.01) be deemed removed from any Global Note and an unrestricted
CUSIP number for the Notes shall be deemed to be the CUSIP number for the Notes and Special
Interest shall not be payable hereunder.


 


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ARTICLE 15

Conversion of Notes




Section 15.01. Right to Convert.



(a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall
have the right, at such Holder’s option, to convert the principal amount of any such Notes, or any
portion of such principal amount which is $1,000 or an integral multiple of $1,000 thereof at the
Conversion Rate then in effect, (x) any time on or after March 15, 2014 and prior to the close of
business on the third Scheduled Trading Day immediately preceding the Maturity Date and (y) prior
to the close of business on the business day immediately preceding March 15, 2014, but only upon
the satisfaction of one or more of the conditions set forth in clauses (i) through (iv) below and
only during the periods set forth below:




(i) Prior to the close of business on the Business Day immediately preceding March
15, 2014, a Holder may surrender all or a portion of its Notes for conversion during any
fiscal quarter (and only during such fiscal quarter) commencing after October 3, 2009, if
the Last Reported Sale Price of the Common Stock for at least twenty (20) Trading Days
(whether or not consecutive) during the period of thirty (30) consecutive Trading Days
ending on the last Trading Day of the immediately preceding fiscal quarter is greater than
or equal to 120% of the Conversion Price in effect on each applicable Trading Day.




(ii) Prior to the close of business on the Business Day immediately preceding March
15, 2014, a Holder may surrender all or a portion of its Notes for conversion during the
five (5) Business-Day period after any ten (10) consecutive Trading-Day period (the
“Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as
determined following a request by a Holder in accordance with the procedures set forth in
this Section 15.01(a)(ii), for each day of such Measurement Period was less than 98% of
the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on
each such Trading Day. The Bid Solicitation Agent shall have no obligation to determine
the Trading Price of the Notes in accordance with this Section 15.01(a)(ii) unless
requested by the Company, and the Company shall have no obligation to make such request
unless a Holder provides the Company with reasonable evidence that the Trading Price per
$1,000 principal amount of Notes would be less than 98% of the product of the Last
Reported Sale Price of the Common Stock and the Conversion Rate. At such time, the
Company shall instruct the Bid Solicitation Agent to determine the Trading Price of the
Notes beginning on the next Trading Day and on each successive Trading Day until the
Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the
product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If
the Company does not so instruct the Bid Solicitation Agent to obtain bids when required,
the Trading Price per $1,000 principal amount of Notes will be deemed to be less than 98%
of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate
on each day the Company fails to do so. If the Trading Price condition has been met, the
Company shall notify the Holders in the manner provided in Section 15.11, the Trustee and
the Conversion Agent. If, at any time after the Trading Price condition has been met, the
Trading Price per $1,000 principal amount of Notes is greater than 98% of the product of
the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date the
Company shall so notify the Holders of the Notes in the manner provided in Section 15.11,
the Trustee and the Conversion Agent.


 


57









 






(iii) If, prior to the close of business on the Business Day immediately preceding
March 15, 2014, the Company elects to:




(A) issue to all or substantially all holders of Common Stock rights or
warrants entitling them to subscribe for or purchase, for a period of not more
than sixty (60) calendar days after the announcement date of such issuance,
 shares of Common Stock at a price per share less than the average of the Last
Reported Sale Prices of a share of Common Stock for the ten (10) consecutive
Trading-Day period ending on the Trading Day immediately preceding the date of
announcement of such issuance; or




(B) distribute to all or substantially all holders of Common Stock assets,
debt securities or rights to purchase securities of the Company, 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 for such distribution,




then, in each case, the Company shall notify the Holders, in the manner provided in
Section 15.11, at least thirty-five (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 Notes for conversion at any time until the earlier of 5:00 p.m., New York
City time, on the Business Day immediately prior to such Ex-Dividend Date or the Company’s
announcement that such issuance or distribution will not take place, even if the Notes are
not otherwise convertible at such time.




(iv) If, prior to the close of business on the Business Day immediately preceding
March 15, 2014, a transaction or event that constitutes a Fundamental Change or a
Make-Whole Fundamental Change occurs, regardless of whether a Holder has the right to
require the Company to purchase the Notes under Section 16.01, 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 the Common Stock would be
converted into cash, securities or other assets, Holders may surrender Notes for
conversion at any time from or after the thirty-fifth (35th) Scheduled Trading
Day prior to the anticipated effective date of such transaction to, and including, the
fortieth (40th) Trading Day following the actual effective date of such
transaction or, if such transaction also constitutes a Fundamental Change, until the
related Fundamental Change Purchase Date. The Company will use all commercially
reasonable efforts to notify the Holders and the Trustee, in the manner provided in
Section 15.11, as promptly as practicable following the date the Company publicly
announces such transaction, but in no event less than thirty-five (35) Scheduled Trading
Days prior to the anticipated effective date of such transaction.


 


58









 





(b) Notes may not be converted after the close of business on the third Scheduled Trading Day
immediately preceding the Maturity Date.



Section 15.02. Conversion Procedures.



(a) Each Note shall be convertible at the office of the Conversion Agent and, if applicable,
in accordance with the procedures of the Depositary.



(b) In order to exercise the conversion privilege with respect to any interest in a Global
Note, the Holder must comply with the Depositary’s procedures for converting a beneficial interest
in a Global Note and pay the funds, if any, required under Section 2.03, to which such converting
Holder is not entitled and, if required, pay all transfer taxes pursuant to Section 15.08, if any.
In order to exercise the conversion privilege with respect to any Physical Notes, the Holder of any
such Notes to be converted, in whole or in part, shall:




(i) complete and manually sign the conversion notice on the back of the Note (the
“Conversion Notice”) or facsimile of the Conversion Notice and deliver such notice, which
is irrevocable, to the Conversion Agent;




(ii) surrender the Note to the Conversion Agent;




(iii) if required, furnish appropriate endorsements and transfer documents,




(iv) if required, pay all transfer or similar taxes; and




(v) make any payment required under Section 2.03 to which such Holder is not
entitled.



The date on which the Holder satisfies all of the applicable requirements set forth above is
the “Conversion Date.” The Trustee will, as promptly as possible, provide the Company with notice
of any conversion exercised by Holders of which a Responsible Officer becomes aware.



(c) Each Conversion Notice shall state the name or names (with address or addresses) in which
any certificate or certificates for shares of Common Stock which shall be issuable on such
conversion shall be issued. All such Notes surrendered for conversion shall, unless any shares
issuable on conversion are to be issued in the same name as the registration of such Notes, be duly
endorsed by, or be accompanied by instruments of transfer in form satisfactory to the Company duly
executed by, the Holder or his duly authorized attorney.



(d) In case any Notes of a denomination greater than $1,000 shall be surrendered for partial
conversion, the Company shall execute and the Trustee shall authenticate and deliver to the Holder
of the Notes so surrendered, without
charge to such Holder, new Notes in authorized denominations in an aggregate principal amount
equal to the unconverted portion of the surrendered Notes.


 


59









 





(e) Each conversion shall be deemed to have been effected as to any Notes (or portion thereof)
surrendered for conversion on the relevant Conversion Date, and with respect to any shares of
Common Stock that are issuable upon such conversion: (i) if such conversion was subject to a
Physical Settlement, the Person in whose name the certificate or certificates for such shares of
Common Stock will be registered, shall become the holder of record of such shares as of the close
of business on the Conversion Date; and (ii) if such conversion was subject to a Combination
Settlement, the Person in whose name the certificate or certificates for such shares of Common
Stock will be registered, shall become the holder of record of such shares as of the close of
business on the last Trading Day of the related Observation Period.



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



(g) If a Holder has submitted any Notes for purchase pursuant to Section 16.01, such Notes may
be converted only if the Holder submits a withdrawal notice in accordance with Section 16.02 prior
to the Fundamental Change Purchase Expiration Time.



Section 15.03. Payment Upon Conversion.



(a) Upon any conversion of any Note, the Company shall deliver to converting Holders, in
respect of each $1,000 principal amount of Notes being converted, at the Company’s election, in
full satisfaction of the Company’s conversion obligation, any of (1) shares of Common Stock,
together with cash in lieu of fractional shares, if any (a “Physical Settlement”), (2) a cash
payment without any delivery of shares of Common Stock (a “Cash Settlement”) or (3) a combination
of cash and shares of Common Stock, together with cash in lieu of fractional shares, if any (a
“Combination Settlement”), in each case, as set forth below. For conversions:




(i) that occur prior to March 15, 2014, by the close of business on the Business Day
following the Conversion Date, the Company will notify converting Holders of the relevant
Settlement Method and, if the Company elects a Combination Settlement, the dollar amount
of the conversion obligation (the “Cash Amount”) that will be settled in cash; or




(ii) that occur on or after March 15, 2014, the Company will notify Holders of the
relevant Settlement Method and, if applicable, the related Cash Amount, by notice on or prior to March 15, 2014 (which will apply to all
conversions following March 15, 2014).


 


60









 





If the Company does not specify a Settlement Method as set forth above, then Physical
Settlement will apply. Except as described in the parentheticals to clause (ii) above, any such
notice of a Settlement Method may not be revoked.



(b) If the Company has elected or is deemed to have elected a Physical Settlement with respect
to any Notes tendered for conversion, the Company shall deliver, for each $1,000 principal amount
of Notes, a number of shares of Common Stock equal to the Conversion Rate, together with cash in
lieu of fractional shares. Except for conversions upon a Make-Whole Fundamental Change as provided
in Section 15.06, the Company shall deliver such shares of Common Stock on (1) the third Business
Day following the Conversion Date, in the case of a Physical Settlement with respect to a
Conversion Date on or prior to the Business Day immediately preceding March 15, 2014, or (2) on the
third Business Day following the last day of the applicable Observation Period, in the case of a
Physical Settlement with respect to a Conversion Date on or after March 15, 2014.



(c) If the Company has elected a Cash Settlement with respect to any Notes tendered for
conversion, the Company shall deliver, for each $1,000 principal amount of Notes, a cash payment
equal to the sum of the Daily Conversion Values for each of the thirty (30) Trading Days during the
relevant Observation Period. Except for conversions upon a Make-Whole Fundamental Change as
provided in Section 15.06, the Company shall make such payment on the third Business Day following
the last day of the applicable Observation Period.



(d) If the Company has elected a Combination Settlement with respect to any Notes tendered for
conversion, the Company shall deliver, for each $1,000 principal amount of Notes, the sum of the
Daily Settlement Amounts for each of the thirty (30) Trading Days during the relevant Observation
Period.



The “Daily Settlement Amount” for each of the thirty (30) Trading Days during the Observation
Period shall consist of:




(i) cash in an amount equal to the lesser of (i) 31/3% of the Cash Amount specified
by the Company in the notice regarding the chosen Settlement Method (the “Daily Cash
Amount”) and (ii) the Daily Conversion Value on such Trading Day; and




(ii) if the Daily Conversion Value on such Trading Day exceeds the Daily Cash Amount,
a number of shares of Common Stock (together with cash in lieu of any fractional shares)
equal to (i) the difference between such Daily Conversion Value and the Daily Cash Amount,
divided by (ii) the Daily VWAP on such Trading Day.


 


61









 





Except for conversions upon a Make-Whole Fundamental Change as provided in Section 15.06, the
Company shall deliver such cash and shares of Common Stock on the third Business Day following the
last day of the applicable Observation Period.



(e) Upon conversion, Holders shall not receive any separate cash payment for accrued and
unpaid interest (including any Additional Interest, if any), except to the extent specified in
Section 2.03. The Company’s delivery to the Holder of Common Stock, cash or a combination of cash
and Common Stock, as applicable, together with any cash payment for any fractional share of Common
Stock, into which a Note is convertible will be deemed to satisfy in full the Company’s obligation
to pay (i) the principal amount of the Notes so converted and (ii) accrued and unpaid interest and
Additional Interest, if any, to, but not including, the Conversion Date. As a result, accrued and
unpaid interest and Additional Interest, if any, to, but not including, the Conversion Date will be
deemed to be paid in full rather than cancelled, extinguished or forfeited.



(f) The Company shall not issue fractional shares of Common Stock upon conversion of Notes.
If multiple Notes shall be surrendered for conversion at one time by the same Holder, the number of
full shares of Common Stock which shall be issuable upon conversion shall be computed on the basis
of the aggregate principal amount of the Notes (or specified portions thereof to the extent
permitted hereby) so surrendered. If any fractional share of Common Stock would be issuable upon
the conversion of any Notes, the Company shall make payment therefor in cash in lieu of fractional
shares of Common Stock based on:




(i) if Physical Settlement applies, on the Last Reported Sale Price of the Common
Stock on the relevant Conversion Date, and




(ii) if Combination Settlement applies, the Daily VWAP on the last Trading Day of the
applicable Observation Period.



(g) Solely for purposes of determining the payments and deliveries due upon conversion under
this Section 15.03, and notwithstanding the definition of “Trading Day” contained in Section 1.01,
“Trading Day” means a day on which (i) there is no Market Disruption Event and (ii) trading in the
Common Stock generally occurs on the New York Stock Exchange or, if the Common Stock is not then
listed on the New York Stock Exchange, on the principal other United States national or regional
securities exchange on which the Common Stock is then listed or, if the Common Stock is not then
listed on a United States national or regional securities exchange, on the principal other market
on which the Common Stock is then traded. If the Common Stock (or other security for which a Daily
VWAP must be determined) is not so listed or quoted, “Trading Day” means a Business Day.




 


62











 




(h) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change,
the Company shall deliver shares of Common Stock, cash or a combination of cash and shares of
Common Stock, as set forth above, at the increased Conversion Rate as described in Section 15.06.



Section 15.04. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from
time to time by the Company if any of the following events occurs, except that the Company will not
make any of the adjustments to the Conversion Rate referred to in clauses (a) (but only with
respect to a dividend or distribution), (b), (c) or (d) below if Noteholders participate, at the
same time as holders of Common Stock and as a result of holding the Notes, in any of the
transactions described below without having to convert their Notes as if such Holders held, for
each $1,000 principal amount of Notes, a number of shares of Common Stock equal to the Conversion
Rate.



As used herein, the “Adjustment Date” for any issuance, dividend or distribution means the
Ex-Dividend Date for such issuance, dividend or distribution.



(a) If the Company, at any time or from time to time while any of the Notes are outstanding,
exclusively issues shares of Common Stock as a dividend or distribution on shares of Common Stock,
or if the Company effects a share split or share combination, then the Conversion Rate will be
adjusted based on the following formula:








where




	 	 	 	 	 	 	 
	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately prior to the open of
business on the Adjustment Date, or immediately prior to the open of business on
the effective date of such share split or share combination, as applicable;
	 
	 	 	 	 	 	 
	 

	 	CR1
	 	=
	 	the Conversion Rate in effect immediately after the open of business
on such Adjustment Date or effective date, as applicable;
	 
	 	 	 	 	 	 
	 

	 	OS0
	 	=
	 	the number of shares of Common Stock outstanding immediately prior to
the open of business on such Adjustment Date or effective date, as applicable;
and
	 
	 	 	 	 	 	 
	 

	 	OS1
	 	=
	 	the number of shares of Common Stock outstanding immediately after
giving effect to such dividend, distribution, share split or share combination.





 


63









 





Such adjustment shall become effective immediately after the open of business on the Adjustment
Date for such dividend or distribution, or the effective date for such share split or share
combination. If any dividend or distribution of the type
described in this Section 15.04(a) is declared but not so paid or made, the Conversion Rate shall
be readjusted to the Conversion Rate which would have been in effect if such dividend or
distribution had not been declared.



(b) If the Company, at any time or from time to time while any of the Notes are outstanding,
issues to all or substantially all holders of Common Stock any rights or warrants entitling them
for a period of not more than sixty (60) calendar days after the announcement date of such issuance
to subscribe for or purchase shares of Common Stock, at a price per share less than the average of
the Last Reported Sale Prices of the Common Stock for the ten (10) consecutive Trading-Day period
ending on the Trading Day immediately preceding the date of announcement of such issuance, the
Conversion Rate shall be adjusted based on the following formula (provided that the conversion rate
will be readjusted to the extent that such rights or warrants are not exercised prior to their
expiration):








where



	 	 	 	 	 	 	 
	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately prior to the open of
business on the Adjustment Date for such issuance;
	 
	 	 	 	 	 	 
	 

	 	CR1
	 	=
	 	the Conversion Rate in effect immediately after the open of business
on such Adjustment Date;
	 
	 	 	 	 	 	 
	 

	 	OS0
	 	=
	 	the number of shares of Common Stock outstanding immediately prior to
the open of business on such Adjustment Date;
	 
	 	 	 	 	 	 
	 

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

	 	Y
	 	=
	 	the number of shares of Common Stock equal to the aggregate price
payable to exercise such rights or warrants divided by the average of the Last
Reported Sale Prices of the Common Stock over the ten (10) consecutive
Trading-Day period ending on the Trading Day immediately preceding the date of
announcement of the issuance of such rights or warrants.






Such adjustment shall become effective immediately after the open of business on the
Adjustment Date for such issuance.



To the extent such rights or warrants are not exercised prior to their expiration or
termination, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in
effect had the adjustments made upon the issuance of such rights or warrants been made on the basis
of the delivery of only the number of shares of Common Stock actually delivered. In the event that
such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the
Conversion Rate which would then be in effect if the date fixed
for the determination of shareholders entitled to receive such rights or warrants had not been
fixed.


 


64









 





For purposes of this clause (b) in determining whether any rights or warrants entitle the
Holder to subscribe for or purchase shares of Common Stock at a price per share less than the
average of the Last Reported Sale Prices of the Common Stock for the ten (10) consecutive
Trading-Day period ending on the Trading Day immediately preceding the date of announcement of such
issuance, there shall be taken into account any consideration received by the Company in respect of
such issuance of such rights or warrants and any consideration payable upon exercise thereof, with
the value of such consideration, if not in the form of cash, to be determined in good faith by the
Board of Directors.



(c) (A) If the Company, at any time or from time to time while the Notes are outstanding,
distributes shares of any class of Capital Stock of the Company, evidences of its indebtedness,
other assets or property of the Company or rights or warrants to acquire the Company’s Capital
Stock or other securities to all or substantially all holders of its Common Stock, excluding:




(i) dividends or distributions as to which an adjustment was effected pursuant to
Section 15.04(a) and rights or warrants referred to in Section 15.04(b);




(ii) dividends or distributions paid exclusively in cash (as described below in
Section 15.04(d); and




(iii) Spin-offs to which provisions set forth below in Section 15.04(c)(B) shall
apply;



then 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 Adjustment Date for such distribution;
	 
	 	 	 	 	 	 
	 

	 	CR1
	 	=
	 	the Conversion Rate in effect immediately after the open of business
on such Adjustment Date;
	 
	 	 	 	 	 	 
	 

	 	SP0
	 	=
	 	the average of the Last Reported Sale Prices of the Common Stock over
the ten (10) consecutive Trading-Day period ending on the Trading Day immediately
preceding the Adjustment Date for such distribution; and
	 
	 	 	 	 	 	 
	 

	 	FMV
	 	=
	 	the Fair Market Value (as determined by the Board of Directors)
of the shares of Capital Stock, evidences of
indebtedness, assets, property, rights or warrants distributed with
respect to each outstanding share of the Common Stock on the Adjustment
Date for such distribution.






 


65









 





Such adjustment shall become effective immediately after the open of business on the
Adjustment Date for such distribution. If the Board of Directors determines the Fair Market Value
of any distribution for purposes of this Section 15.04(c) by reference to the actual or when-issued
trading market for any securities, it must in doing so consider the prices in such market over the
same period used in computing the average of the Last Reported Sale Prices of the Common Stock.
Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than
“SP0” (as defined above), in lieu of the foregoing adjustment, adequate provision shall
be made by the Company, as determined by the Board of Directors in good faith to take into account
such distribution, which provision may include, without limitation, giving each Holder the right to
receive on the date on which the relevant Capital Stock, evidences of indebtedness, other assets or
property of the Company or rights or warrants to acquire the Common Stock or other securities are
distributed to holders of Common Stock, for each $1,000 principal amount of Notes, the amount of
Capital Stock, evidences of indebtedness, other assets or property of the Company or rights or
warrants to acquire the Common Stock or other securities such Holder would have received on the
record date for such distribution had such Holder owned a number of shares of Common Stock equal to
the Conversion Rate as of the Adjustment Date for such distribution.



(B) With respect to an adjustment pursuant to this Section 15.04(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,
in each case listed on a national securities exchange (a “Spin-off”), the Conversion Rate shall be
adjusted based on the following formula:








where



	 	 	 	 	 	 	 
	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately prior to the end of the
Valuation Period;
	 
	 	 	 	 	 	 
	 

	 	CR1
	 	=
	 	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 Common Stock applicable to one
share of Common Stock over the first ten (10) 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 Common Stock over the
Valuation Period.






 


66









 





The adjustment to the Conversion Rate under this Section 15.04(c)(B) will occur on the
Business Day immediately after the last day of the Valuation Period; provided that in respect of
any conversion during the Valuation Period, references above with respect to ten (10) Trading Days
shall be deemed 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.



If any dividend or distribution of the type described in this Section 15.04(c) is declared but
not so paid or made, the Conversion Rate shall be readjusted to the Conversion Rate which would
have been in effect if such dividend or distribution had not been declared.



(d) If any cash dividend or other distribution is made to all or substantially all holders of
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 Adjustment Date for such dividend or distribution;
	 
	 	 	 	 	 	 
	 

	 	CR1
	 	=
	 	the Conversion Rate in effect immediately after the open of
business on the Adjustment Date for such dividend or distribution;
	 
	 	 	 	 	 	 
	 

	 	SP0
	 	=
	 	the Last Reported Sale Price of the Common Stock on the Trading
Day immediately preceding the Adjustment Date for such dividend or distribution;
and
	 
	 	 	 	 	 	 
	 

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






 


67









 





In the case of an adjustment pursuant to this Section 15.04(d), such adjustment shall become
effective immediately after the open of business on the Adjustment Date for the relevant dividend
or distribution; provided that, if the portion of the cash so distributed applicable to one share
of Common Stock is equal to or greater than the Last Reported Sale Price of a share of Common Stock
on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution, in
lieu of the adjustment set forth in this Section 15.04(d) adequate provision shall be made by the
Company, as determined by the Board of Directors in good faith to take into account such
distribution, which provision
may include, without limitation, giving each Holder the right to receive on the date on which such
cash dividend or distribution is distributed to holders of Common Stock, for each $1,000 principal
amount of Notes, the amount of cash such Holder would have received had such Holder owned a number
of shares equal to the Conversion Rate on the Ex-Dividend Date for such distribution.



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








where



	 	 	 	 	 
	 

	 	CR0 =
	 	the Conversion Rate in effect immediately prior to the close of
business on the tenth (10th)Trading Day immediately following, and
including, the Trading Day next succeeding the date such tender or exchange offer
expires;
	 
	 	 	 	 
	 

	 	CR1 =
	 	the Conversion Rate in effect immediately after the close of business
on the tenth (10th) Trading Day immediately following, and including,
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 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;
	 
	 	 	 	 
	 

	 	OS1 =
	 	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 accepted for purchase or exchanged in such tender or
exchange offer); and
	 
	 	 	 	 
	 

	 	SP1 =
	 	the average of the Last Reported Sale Prices of the Common Stock over
the ten (10) consecutive Trading-Day period commencing on the Trading Day next
succeeding the date such tender or exchange offer expires.






 


68









 





The adjustment to the Conversion Rate under this Section 15.04(e) shall occur immediately
after at the close of business on the tenth (10th) Trading Day
immediately following, and including, the Trading Day next succeeding the date such tender or
exchange offer expires; provided that in respect of any conversion within ten (10) Trading Days
immediately following, and including, the expiration date of any tender or exchange offer,
references with respect to ten (10) Trading Days shall be deemed replaced with such lesser number
of Trading Days as have elapsed between the expiration date of such tender or exchange offer and
the Conversion Date in determining the Conversion Rate.



If the Company or one of its subsidiaries is obligated to purchase shares of Common Stock
pursuant to any such tender or exchange offer, but the Company or such subsidiary is permanently
prevented by applicable law from effecting any such purchases or all such purchases are rescinded,
the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect
if such tender or exchange offer had not been made.



(f) For purposes of Section 15.04(c), “record date” shall mean, with respect to any dividend,
issuance, distribution or other transaction or event in which the holders of Common Stock have the
right to receive any cash, securities or other property or in which the Common Stock (or other
applicable security) is exchanged for or converted into any combination of cash, securities or
other property, the date fixed for determination of shareholders entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of Directors or by statute,
contract or otherwise).



(g) The Company from time to time may increase the Conversion Rate by any amount for any
period of time if the period is at least twenty (20) Business Days, the increase is irrevocable
during the period and the Board of Directors shall have made a determination that such increase
would be in the best interests of the Company. Whenever the Conversion Rate is increased pursuant
to this Section 15.04(g), the Company shall mail to Holders of record of the Notes a notice of the
increase at least fifteen (15) days prior to the date the increased Conversion Rate takes effect,
and such notice shall state the increased Conversion Rate and the period during which it will be in
effect.



(h) The Company may (but is not required to) make such increases in the Conversion Rate, in
addition to any adjustments required by Sections 15.04(a), 15.04(b), 15.04(c), 15.04(d), 15.04(e)
or 15.04(g), as the Board of Directors considers to be advisable to avoid or diminish any income
tax to holders of Common Stock or rights to purchase shares of Common Stock in connection with a
dividend or distribution of shares (or rights to acquire shares) or similar event.



(i) All calculations under this Article 15 shall be made by the Company and shall be
calculated to the nearest one-ten-thousandth of a share. No adjustment to the Conversion Rate will
be required unless the adjustment would require an increase or decrease of at least 1% of the
Conversion Rate. However, the Company will carry forward any adjustments that are less than 1% of
the Conversion Rate that the Company elects not to make and take them into account
upon (1) any Observation Period with respect to a payment on conversion (or, in the case of a
Physical Settlement, any Conversion Date), (2) the occurrence of a Fundamental Change, (3) the
Maturity Date and (4) such time as all adjustments that have not been made prior thereto would have
the effect of adjusting the Conversion Rate by at least 1%.


 


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(j) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and any Conversion Agent an Officers’ Certificate setting forth the
Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring
such adjustment. Unless and until a Responsible Officer of the Trustee shall have received such
Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the
Conversion Rate and may assume without inquiry that the last Conversion Rate of which it has
knowledge is still in effect. Promptly after delivery of such certificate, the Company shall
prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion
Rate and the date on which each adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Rate to each Holder of Notes. Failure to deliver such notice shall
not affect the legality or validity of any such adjustment.



(k) For purposes of this Section 15.04, 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.



(l) Notwithstanding the foregoing, if the application of the foregoing formulas would result
in a decrease in the Conversion Rate, no adjustment to the Conversion Rate shall be made (other
than as a result of a reverse share split or a share combination).



(m) Notwithstanding any of the foregoing, the applicable Conversion Rate will 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 our 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 us or any of the Company’s 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 the preceding bullet and outstanding as of the date the
Notes were first issued;


 


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




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



(n) Notwithstanding the Conversion Rate adjustment provisions above, if any Conversion Rate
adjustment becomes effective, or any Adjustment Date relating to a required Conversion Rate
adjustment occurs, during the period beginning on a Conversion Date and ending on the close of
business on the last Trading Day of the corresponding Observation Period, the Board of Directors
will make adjustments to the Conversion Rate or the amount of cash or number of shares of Common
Stock issuable upon conversion of the Notes, as may be necessary or appropriate to effect the
intent of the foregoing Conversion Rate adjustments to avoid unjust or inequitable results, as
determined in good faith by the Board of Directors. Any adjustment made pursuant to this paragraph
will apply in lieu of the adjustment or other term that would otherwise be applicable. In
addition, if a Conversion Rate adjustment becomes effective on any Adjustment Date as described
above, and a Holder that has converted its Notes would become the record holder of shares of Common
Stock as of the related Conversion Date as set forth in Section 15.02(e) based on an adjusted
Conversion Rate for such Adjustment Date, then, notwithstanding the Conversion Rate adjustment
provisions above, the Conversion Rate adjustment relating to such Adjustment Date will not be made
for such converting Holder. Instead, such Holder will be deemed to be the record owner of shares
on an un-adjusted basis and participate in the related dividend, distribution or other event giving
rise to such adjustment.



(o) Except as stated herein, the applicable Conversion Rate will not be adjusted for the
issuance of shares of Common Stock or any securities convertible into or exchangeable for shares of
Common Stock or the right to purchase shares of Common Stock or such convertible or exchangeable
securities.



Section 15.05. Adjustment of Average Prices. Whenever any provision of this Indenture
requires the Company to calculate Last Reported Sale Prices or Daily VWAP over a span of multiple
days, the Company will make appropriate adjustments 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 period from which such prices are to
be calculated.


 


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Section 15.06. Adjustments Upon Make-whole Fundamental Changes.



(a) If a Make-Whole Fundamental Change occurs and a Holder elects to convert its Notes in
connection with such Make-Whole Fundamental Change, then, in each case, the Company shall, under the circumstances described below, increase the
Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of
Common Stock (the “Additional Shares”) as described below. A conversion of Notes shall be deemed
for these purposes to be “in connection with” such Make-Whole Fundamental Change if the Conversion
Notice of the Notes is received by the Conversion Agent from, and including, the Effective Date of
the Make-Whole Fundamental Change up to, and including, the Business Day immediately prior to the
related Fundamental Change Purchase Date (or, in the case of a Make-Whole Fundamental Change that
would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof,
the thirty-fifth (35th) Trading Day immediately following the Effective Date of such
Make-Whole Fundamental Change).



(b) The number of Additional Shares by which the Conversion Rate will be increased will be
determined by reference to the table below, based on the date on which the Make-Whole Fundamental
Change occurs or becomes effective (the “Effective Date”) and the price (the “Stock Price”) paid
(or deemed paid) per share of the Common Stock in the Make-Whole Fundamental Change. If the
holders of Common Stock receive only cash in such Make-Whole Fundamental Change that occurs as a
result of a transaction or event described in clause (b) of the definition of Fundamental Change,
the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the
average of the Last Reported Sale Prices of Common Stock over the five (5) Trading-Day period
ending on, and including, the Trading Day immediately preceding the Effective Date of the
Make-Whole Fundamental Change. However, if the consideration for Common Stock in any Make-Whole
Fundamental Change described in clause (b) of the definition of Fundamental Change is comprised
entirely of cash, for any conversion of Notes in connection with such Make-Whole Fundamental
Change, the Company’s obligation to convert the Notes into cash will be calculated based solely on
the Stock Price for the transaction and will be deemed to be an amount equal to the applicable
Conversion Rate (including any adjustment as described in this Section 15.06), multiplied by such
Stock Price. In such event, the Company’s obligation to convert the Notes into cash will be
determined and paid to Holders in cash on the third Business Day following the Conversion Date.



(c) The Stock Prices set forth in the column headings of the table below shall be adjusted as
of any date on which the Conversion Rate of the Notes is otherwise adjusted. The adjusted Stock
Prices shall equal the Stock Prices immediately prior to such adjustment, multiplied by a fraction,
the numerator of which is the Conversion Rate immediately prior to such 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 set forth in the table below shall be adjusted in the same manner as
the Conversion Rate as set forth in Section 15.04.


 


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The following table sets forth the number of Additional Shares per $1,000 principal amount of
Notes for each Stock Price and Effective Date set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price	 
	Effective date	 	$2.98	 	 	$5.00	 	 	$7.50	 	 	$10.00	 	 	$12.50	 	 	$15.00	 	 	$17.50	 	 	$20.00	 	 	$22.50	 	 	$25.00	 	 	$27.50	 	 	$30.00	 	 	$32.50	 
	6/24/2009
	 	 	55.9283	 	 	 	31.8073	 	 	 	17.9332	 	 	 	11.7018	 	 	 	8.1605	 	 	 	5.8944	 	 	 	4.3403	 	 	 	3.2261	 	 	 	2.4032	 	 	 	1.7829	 	 	 	1.3087	 	 	 	0.9432	 	 	 	0.6600	 
	6/15/2010
	 	 	55.9283	 	 	 	28.3921	 	 	 	15.6588	 	 	 	10.2224	 	 	 	7.1656	 	 	 	5.2040	 	 	 	3.8493	 	 	 	2.8705	 	 	 	2.1423	 	 	 	1.5897	 	 	 	1.1651	 	 	 	0.8364	 	 	 	0.5810	 
	6/15/2011
	 	 	55.9283	 	 	 	23.7415	 	 	 	12.5654	 	 	 	8.2057	 	 	 	5.7994	 	 	 	4.2492	 	 	 	3.1674	 	 	 	2.3763	 	 	 	1.7807	 	 	 	1.3238	 	 	 	0.9694	 	 	 	0.6929	 	 	 	0.4766	 
	6/15/2012
	 	 	55.9283	 	 	 	17.2657	 	 	 	8.4062	 	 	 	5.5036	 	 	 	3.9413	 	 	 	2.9268	 	 	 	2.2087	 	 	 	1.6749	 	 	 	1.2658	 	 	 	0.9462	 	 	 	0.6938	 	 	 	0.4937	 	 	 	0.3347	 
	6/15/2013
	 	 	55.9283	 	 	 	7.6539	 	 	 	2.9876	 	 	 	2.0010	 	 	 	1.4565	 	 	 	1.0950	 	 	 	0.8369	 	 	 	0.6433	 	 	 	0.4927	 	 	 	0.3723	 	 	 	0.2738	 	 	 	0.1916	 	 	 	0.1221	 
	6/15/2014
	 	 	55.9283	 	 	 	0.0000	 	 	 	0.0000	 	 	 	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 a straight-line interpolation between the number of Additional Shares set
forth for the higher and lower Stock Prices and the earlier and later Effective Dates, as
applicable, based on a 365-day year.




(ii) If the Stock Price is greater than $32.50 per share (subject to adjustment in
the same manner as the Stock Prices set forth in the table above), no Additional Shares
shall be added to the Conversion Rate.




(iii) If the Stock Price is less than $2.98 per share (subject to adjustment in the
same manner as the Stock Prices as set forth in the column headings of the table above),
no Additional Shares shall be added to the Conversion Rate.



Notwithstanding anything to the contrary, in no event shall the total number of shares of
Common Stock issuable upon conversion exceed 335.5704 shares of Common Stock per $1,000 principal
amount of Notes (the “Maximum Conversion Rate”), subject to adjustments in the same manner as the
Conversion Rate as set forth in Section 15.04.



(d) The Company shall notify the Holders of Notes of the Effective Date of any Make-Whole
Fundamental Change and issue a press release announcing such Effective Date no later than five (5)
Business Days after such Effective Date.



Section 15.07. Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale.
If any of the following events occur:



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



(b) any consolidation, merger or combination involving the Company;


 


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



(d) any statutory share exchange;



in each case of clauses (a) — (d) as a result of which the Common Stock would be converted into, or
exchanged for stock, other securities or other property or assets (including cash or any
combination thereof) (any such event, a “Merger Event”), then, 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 (which shall comply with the Trust Indenture Act as in force
at the date of execution of such supplemental indenture) providing that at and after the effective
time of such Merger Event, the right of a Holder to convert a Note will be changed into a right to
convert such Note as set forth in this Indenture into the kind and amount of shares of stock, other
securities or other property or assets (including cash or any combination thereof) that a holder of
a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger
Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of
Reference Property” meaning the type and amount of Reference Property that a holder of one share of
Common Stock is entitled to receive) upon such Merger Event. However, at and after the effective
time of the Merger Event (x) the amount otherwise payable in cash upon conversion of the Notes as
set forth in Section 15.03 will continue to be payable in cash, (y) the number of shares of Common
Stock otherwise deliverable upon conversion of the Notes as set forth in Section 15.03 will instead
be deliverable in the amount and type of Reference Property that a holder of that number of shares
of Common Stock would have received in such Merger Event and (z) the Daily VWAP will 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), (x) the Reference Property into which the Notes will be convertible will be
deemed to be the weighted average of the types and amounts of consideration received by the holders
of the Common Stock that affirmatively make such election and (y) the unit of Reference Property
for purposes of the foregoing sentence shall refer to the consideration referred to in clause (x)
attributable to one share of Common Stock.



The Company shall not become a party to any such Merger Event unless its terms are consistent
with this Section 15.07. Such supplemental indenture shall provide for adjustments which shall be
as nearly equivalent as may be practicable to the adjustments provided for in this Article 15 in
the judgment of the Board of Directors or the board of directors of the successor Person. If, in
the case of any such recapitalization, reclassification, change, consolidation, merger,
combination, sale, lease, other transfer or statutory share exchange, the Reference Property
receivable thereupon by a holder of Common Stock 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 Person, as the case may be, in such reorganization,
reclassification, change, consolidation, merger, combination, sale, lease, other transfer or
statutory share exchange, then such supplemental indenture shall also be executed by such other
Person.


 


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The Company shall cause notice of the execution of such supplemental indenture to be mailed to
each Holder, at the address of such Holder as it appears on the register of the Notes maintained by
the Registrar, within twenty (20) days after execution thereof. Failure to deliver such notice
shall not affect the legality or validity of such supplemental indenture. The above provisions of
this Section 15.07 shall similarly apply to successive reclassifications, changes, consolidations,
mergers, combinations, sales and conveyances. If this Section 15.07 applies to any Merger Event,
Section 15.04 shall not apply.



Section 15.08. Taxes on Shares Issued. Any issue of stock certificates on conversions of
Notes shall be made without charge to the converting Holder for any documentary, stamp or any
similar issue or transfer tax in respect of the issue thereof, and the Company shall pay any and
all documentary, stamp or similar issue or transfer taxes that may be payable in respect of the
issue or delivery of shares of Common Stock on conversion of Notes pursuant hereto. The Company
shall not, however, be required to pay any such tax which may be payable in respect of any transfer
involved in the issue and delivery of shares of Common Stock in any name other than that of the
Holder of any Notes converted.



Section 15.09. Reservation of Shares; Shares to be Fully Paid; Compliance With Governmental
Requirements; Listing of Common Stock. The Company shall provide, free from preemptive rights, out
of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock
to satisfy conversion of the Notes from time to time as such Notes are presented for conversion
(assuming that, at the time of the computation of such number of shares or securities, all such
Notes would be converted by a single Holder).



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



The Company covenants that all shares of Common Stock that may be issued upon conversion of
Notes shall be newly issued shares or treasury shares, shall be duly authorized, validly issued,
fully paid and non-assessable and shall be free from preemptive rights and free from any tax, lien
or charge (other than those created by the Holder).


 


75









 





The Company shall use its commercially reasonable efforts to list or cause to have quoted any
shares of Common Stock to be issued upon conversion of Notes on each national securities exchange
or over-the-counter or other domestic market on which the Common Stock is then listed or quoted.



Section 15.10. Responsibility of Trustee. The Trustee and any Conversion Agent shall not at
any time be under any duty or responsibility to any Holder of Notes or the Company to determine or
calculate the Conversion Rate, to determine whether any facts exist which may require any
adjustment of the Conversion Rate, or to confirm the accuracy of any such adjustment when made or
the appropriateness of the method employed, or herein or in any supplemental indenture provided to
be employed, in making the same. The Trustee and any other Conversion Agent shall not be
accountable with respect to the validity or value (or the kind or amount) of any shares of Common
Stock or of any other securities or property that may at any time be issued or delivered upon the
conversion of any Notes; and the Trustee and the Conversion Agent make no representations with
respect thereto. Neither the Trustee nor any Conversion Agent shall be responsible for any failure
of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or
other securities or property or cash upon the surrender of any Notes for the purpose of conversion
or to comply with any of the duties, responsibilities or covenants of the Company contained in this
Article 15. The rights, privileges, protections, immunities and benefits given to the Trustee
under the Indenture, including without limitation its right to be compensated, reimbursed, and
indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, including its capacity as Conversion Agent and if it is so appointed by the Company and
accepts such appointment, as Bid Solicitation Agent.



Section 15.11. Notice to Holders Prior to Certain Actions. Unless a notice has been
provided under Section 15.01(a)(iii) or Section 15.01(a)(iv), as applicable, in case:



(a) the Company shall declare a dividend (or any other distribution) on its Common Stock that
would require an adjustment in the Conversion Rate pursuant to Section 15.04; or



(b) the Company shall authorize the granting to the holders of all or substantially all of its
Common Stock of rights or warrants to subscribe for or purchase any share of any class or any other
rights or warrants that would require an adjustment in the Conversion Rate pursuant to Section
15.04; or



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


 


76









 





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



then, in each case, the Company shall cause to be filed with the Trustee and the Conversion Agent
and to be mailed to each Holder at such Holder’s address appearing on the list of Holders provided
for in Section 6.01, as promptly as practicable but in any event at least ten (10) days prior to
the applicable date hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution or rights or warrants, or, if a record is not
to be taken, the date as of which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, lease, transfer, dissolution, liquidation or winding
up is expected to become effective or occur, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up. Failure to give such notice, or any defect therein, shall
not affect the legality or validity of such dividend, distribution, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.



Section 15.12. Stockholder Rights Plan. To the extent that the Company has a stockholder
rights plan in effect upon conversion of the Notes into Common Stock, each share of Common Stock
issued upon conversion of Notes pursuant to this Article 15 shall be entitled to receive, in
addition to any shares of Common Stock received in connection with such conversion, rights under
the rights plan, 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
stockholder rights plan adopted by the Company, as the same may be amended from time to time. If
prior to any conversion, however, such rights have separated from the shares of Common Stock in
accordance with the provisions of the applicable stockholder rights agreement, the Conversion Rate
shall be adjusted at the time of separation as if the Company distributed to all holders of Common
Stock, shares of the Company’s Capital Stock, evidences of indebtedness, assets, property, rights
or warrants as described in Section 15.04(c), subject to readjustment in the event of the
expiration, termination or redemption of such rights.


 


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Section 15.13. Conversion Rate Cap. In no event shall the shares issuable upon conversion
of the Notes exceed 211.2064 shares per $1,000 principal amount of Notes, subject to adjustment
under Section 15.04(a) (the “Conversion Rate Cap”), and upon any conversion of the Notes, in
respect of the Company’s conversion obligation the Company shall deliver cash up to the $1,000 par
value of the Notes and cash, shares of the Company’s Common Stock or any
combination thereof, as the case may be, for any amount thereafter (but with the maximum
number of shares required to be issued in connection with such conversion being subject to the
Conversion Rate Cap), unless at the time of such conversion the Company has received the
stockholder approval required by the rules of the stock exchange on which the Common Stock is
listed to issue a number of additional shares equal to at least the Maximum Conversion Rate in
effect at the time of any such conversion with respect to each outstanding Note (in which case, the
Conversion Rate Cap shall be increased to such Maximum Conversion Rate, and the Company shall be
entitled to settle the Company’s conversion obligation in any of the means described above in
Section 15.03). Notwithstanding anything to the contrary, the Company shall not be required to
deliver any cash, securities or other property or assets in lieu of any such shares of Common Stock
exceeding the Conversion Rate Cap.



Section 15.14. Company Determination Final. Any determination that the Company or the Board
of Directors must make pursuant to this Article 15 shall be conclusive and binding on the Holders
and the parties to the Indenture if made in good faith, absent manifest error.



ARTICLE 16

Offer to Purchase Notes Upon a Fundamental Change 




Section 16.01. Offer to Purchase Notes Upon a Fundamental Change. (a) If there shall occur
a Fundamental Change at any time prior to the Maturity Date, then each Holder shall have the right,
at such Holder’s option, to require the Company to purchase for cash any or all of such Holder’s
Notes, or any portion of the principal amount thereof that is equal to $1,000 or a multiple of
$1,000, on a date (the “Fundamental Change Purchase Date”) of the Company’s choosing that is not
less than twenty (20) or more than thirty-five (35) calendar days after the date of the Fundamental
Change Company Notice at a purchase price equal to 100% of the principal amount of the Notes to be
purchased, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change
Purchase Date (the “Fundamental Change Purchase Price”). If such Fundamental Change Purchase Date
falls after a Interest Record Date and on or prior to the Interest Payment Date to which it
relates, the Company shall instead pay the full amount of accrued and unpaid interest payable on
such Interest Payment Date to the Holder of record on the close of business on the corresponding
Interest Record Date and the Fundamental Change Purchase Price shall be equal to 100% of the
principal amount of the Notes to be purchased. Purchases of Notes by the Company under this
Section 16.01 shall be made, at the option of the Holder thereof, upon:




(i) delivery to the Paying Agent by a Holder of a duly completed notice (the
“Fundamental Change Purchase Notice”) in the form set forth on the reverse of the Note by the close of business on the Business
Day immediately preceding the Fundamental Change Purchase Date (the “Fundamental Change
Purchase Expiration Time”); and


 


78









 






(ii) delivery or book-entry transfer of the Notes to the Paying Agent by the
Fundamental Change Purchase Expiration Time (together with all necessary endorsements) at
the Corporate Trust Office of the Paying Agent in New York City, such delivery being a
condition to receipt by the Holder of the Fundamental Change Purchase Price therefor.



The Fundamental Change Purchase Notice shall state:




(i) if certificated, the certificate numbers of the Notes to be delivered for
purchase, or if not certificated, such Fundamental Change Purchase Notice must comply with
appropriate Depositary procedures;




(ii) the portion of the principal amount of Notes to be purchased, which must be
$1,000 or a multiple thereof; and




(iii) that the Notes are to be purchased by the Company pursuant to the applicable
provisions of the Notes and this Indenture.



Any purchase by the Company contemplated pursuant to the provisions of this Section 16.01
shall be consummated by the payment of the Fundamental Change Purchase Price to the relevant
Holders promptly following the later of the Fundamental Change Purchase Date and the time of the
book-entry transfer or delivery of the Notes. If the such required purchase date falls on a day
that is not a Business Day, the Fundamental Change Purchase Price shall be paid on the next
succeeding Business Day, and no additional interest shall accrue in respect of the delay.



Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Purchase Notice contemplated by this Section 16.01 shall have the right to
withdraw, in whole or in part, such Fundamental Change Purchase Notice at any time prior to the
close of business on the Business Day immediately preceding the Fundamental Change Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 16.02
below.



The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental
Change Purchase Notice or written notice of withdrawal thereof.



(b) On or before the twentieth (20th) calendar day after the occurrence of a Fundamental
Change, the Company shall mail or cause to be mailed to all Holders, and to beneficial owners as
required by applicable law, a notice (the “Fundamental Change Company Notice”) of the occurrence of
the Fundamental Change and of the purchase right at the option of the Holders arising as a result
thereof. Such mailing shall be by first class mail. The Company shall
also deliver a copy of the Fundamental Change Company Notice to the Trustee, the Paying Agent
and the Conversion Agent. Simultaneously with providing such notice, the Company will publish a
notice containing the information set forth in the Fundamental Change Company Notice in a newspaper
of general circulation in New York City or publish the information on the Company’s website or
through such other public medium as the Company may use at that time.


 


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Each Fundamental Change Company Notice shall specify:




(i) the events causing the Fundamental Change;




(ii) the date of the Fundamental Change;




(iii) the last date on which a Holder may exercise the purchase right pursuant to
this Article 16;




(iv) the Fundamental Change Purchase Price;




(v) the Fundamental Change Purchase Date;




(vi) the name and address of the Paying Agent and the Conversion Agent, if
applicable;




(vii) the applicable Conversion Rate and any adjustments to the applicable Conversion
Rate;




(viii) that the Notes with respect to which a Fundamental Change Purchase Notice has
been delivered by a Holder may be converted only if the Holder withdraws the Fundamental
Change Purchase Notice in accordance with the terms of this Indenture;




(ix) the procedures that Holders must follow to require the Company to purchase their
Notes pursuant to this Article 16; and




(x) the CUSIP, ISIN or other similar numbers, if any, assigned to the Notes.



No failure of the Company to give the foregoing notices and no defect therein shall limit the
purchase rights of Holders or affect the validity of the proceedings for the purchase of the Notes
pursuant to this Section 16.01.


 


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Section 16.02. Withdrawal of Fundamental Change Purchase Notice. A Fundamental Change
Purchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal
delivered to the Corporate Trust Office of the Paying Agent in accordance with the Fundamental
Change Purchase Notice at any time prior to the Fundamental Change Purchase Expiration Time,
specifying:




(i) if Physical Notes have been issued, the certificate numbers of the Notes in
respect of which such notice of withdrawal is being submitted, or if Physical Notes have
not been issued, such notice of withdrawal must comply with appropriate Depositary
procedures;




(ii) the principal amount of the Note with respect to which such notice of withdrawal
is being submitted, which portion must be in principal amount of $1,000 or an integral
multiple thereof; and




(iii) the principal amount, if any, of such Note that remains subject to the original
Fundamental Change Purchase Notice, which portion must be in principal amount of $1,000 or
an integral multiple thereof.



Section 16.03. Deposit of Fundamental Change Purchase Price. Prior to 10:00 a.m., New York
City time, on the Fundamental Change Purchase Date, the Company shall deposit with the Paying Agent
or, if the Company or a Subsidiary of the Company is acting as the Paying Agent, shall segregate
and hold in trust as provided herein, an amount of cash (in immediately available funds if
deposited on the Fundamental Change Purchase Date), sufficient to pay the aggregate Fundamental
Change Purchase Price of all the Notes or portions thereof that are to be purchased as of the
Fundamental Change Purchase Date.



If on the Fundamental Change Purchase Date the Paying Agent holds cash or securities
sufficient to pay the Fundamental Change Purchase Price of the Notes that Holders have elected to
require the Company to purchase in accordance with Section 16.01, then, on the Fundamental Change
Purchase Date, such Notes will cease to be outstanding, interest will cease to accrue (whether or
not book-entry transfer of the Notes is made or the Note is delivered to the Paying Agent) and all
other rights of the Holders of such Notes will terminate (other than the right to receive the
Fundamental Change Purchase Price upon delivery or book-entry transfer of the Notes). This will be
the case whether or not book-entry transfer of the Notes has been made or the Notes have been
delivered to the Paying Agent.



Section 16.04. Restrictions on Purchases. No Notes may be purchased at the option of the
Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and
such acceleration has not been rescinded, on or prior to such date.



Section 16.05. Notes Purchased in Part. Upon presentation of any Notes purchased only in
part, the Company shall execute and the Trustee shall authenticate and make available for delivery
to the Holder thereof, at the expense of the Company, a new Note or Notes, of any authorized
denomination, in aggregate principal amount equal to the portion of the Notes presented that is not
purchased.


 


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Section 16.06. Covenant to Comply With Securities Laws Upon Purchase of Notes. The Company
will, to the extent applicable, comply with the provisions of Rule 13e-4 and any other tender offer
rules under the Exchange Act that may be applicable at the time of the offer to purchase the Notes,
file the related Schedule TO or any other schedule required in connection with any offer by the
Company to purchase the Notes and comply with all other federal and state securities laws in
connection with any offer by the Company to purchase the Notes. To the extent that the provisions
of any securities laws or regulations conflict with the provisions under Article 16, the Company
shall comply with the applicable securities laws and regulations and shall not be deemed to have
breached any obligations of the Company under such provisions by virtue of such compliance.



Section 16.07. Repayment to the Company. To the extent that the aggregate amount of cash
deposited by the Company pursuant to Section 16.03 exceeds the aggregate Fundamental Change
Purchase Price of the Notes or portions thereof that the Company is obligated to purchase as of the
Fundamental Change Purchase Date, then, following the Fundamental Change Purchase Date, the Paying
Agent shall, upon written instruction, promptly return any such excess to the Company.



The Trustee shall not at any time be under any duty or responsibility to any Holder of Notes
or the Company to determine whether any facts exist which may result in a Fundamental Change.



ARTICLE 17

Miscellaneous Provisions




Section 17.01. Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements of the Company contained in this Indenture shall bind its successors and
assigns whether so expressed or not.



Section 17.02. Official Acts by Successor. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board, committee or Officer of the
Company shall and may be done and performed with like force and effect by the like board, committee
or officer of any corporation or other entity that shall at the time be the lawful sole successor
of the Company.



Section 17.03. Addresses for Notices, Etc. Any notice or demand that by any provision of
this Indenture is required or permitted to be given or served by the Trustee or by the Noteholders
on the Company shall be deemed to have been sufficiently given or made, for all purposes if given
or served by being deposited postage prepaid by registered or certified mail in a post office
letter box or sent by overnight delivery addressed (until another address is filed by the Company
with the Trustee) to Liz Claiborne, Inc., 1441 Broadway, New York, New York 10018, to the attention
of the Vice President, General Counsel. Any notice, direction, request or demand hereunder to or
upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if
given or served by being deposited postage prepaid by registered or certified mail in a post office
letter box addressed to the Corporate Trust Office.


 


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



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



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



In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice to Holders by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder.



Section 17.04. Governing Law. THIS INDENTURE AND EACH NOTE SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREUNDER THAT WOULD INDICATE THE
APPLICABILITY OF THE LAWS OF ANY OTHER JURISDICTION.



Section 17.05. Evidence of Compliance with Conditions Precedent; Certificates and Opinions
of Counsel to Trustee. Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture, other than in connection with the actions
referred to in Section 2.04, the Company shall, if requested by the Trustee, furnish to the Trustee
an Officers’ Certificate stating that such action is permitted by the terms of this Indenture.



Each Officers’ Certificate provided for by or on behalf of the Company in this Indenture and
delivered to the Trustee with respect to compliance with this Indenture (other than the Officers’
Certificates provided for in Section 5.08) shall include (a) a statement that the Person making
such certificate is familiar with the requested action and this Indenture; (b) a brief statement as
to the nature and scope of the examination or investigation upon which the statement contained in
such certificate is based; (c) a statement that, in the judgment of such person, he or she has
made such examination or investigation as is necessary to enable him or her to express an informed
judgment as to whether or not such action is permitted by this Indenture; and (d) a statement as to
whether or not, in the judgment of such Person, such action is permitted by this Indenture.


 


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Notwithstanding anything to the contrary in this Section 17.05, if any provision in this
Indenture specifically provides that the Trustee shall or may receive an Opinion of Counsel in
connection with any action to be taken by the Trustee or the Company hereunder, the Trustee shall
be entitled to, or entitled to request, such Opinion of Counsel.



Section 17.06. Legal Holidays. In any case where any Interest Payment Date, Fundamental
Change Purchase Date, Conversion Date or Maturity Date is not a Business Day, then any action to be
taken on such date need not be taken on such date, but may be taken on the next succeeding Business
Day with the same force and effect as if taken on such date, and no interest shall accrue for the
period from and after such date.



Section 17.07. No Security Interest Created. Nothing in this Indenture or in the Notes,
expressed or implied, shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any
jurisdiction.



Section 17.08. Trust Indenture Act. This Indenture is hereby made subject to, and shall be
governed by, the provisions of the Trust Indenture Act required to be part of and to govern
indentures qualified under the Trust Indenture Act upon such qualification; provided that this
Section 17.08 shall not require that this Indenture or the Trustee be qualified under the Trust
Indenture Act prior to the time such qualification is in fact required under the terms of the Trust
Indenture Act, nor shall it constitute any admission or acknowledgment by any party hereto that any
such qualification is required prior to the time such qualification is in fact required under the
terms of the Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with
another provision hereof that is required to be included in an indenture qualified under the Trust
Indenture Act, such required provision shall control.



Section 17.09. Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed
or implied, shall give to any Person, other than the parties hereto, any Paying Agent, any
Conversion Agent, any authenticating agent, any Note Registrar and their successors hereunder or
the Noteholders, any benefit or any legal or equitable right, remedy or claim under this Indenture.



Section 17.10. Table of Contents, Headings, Etc. The table of contents and the titles and
headings of the articles and sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.


 


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Section 17.11. Authenticating Agent. The Trustee may appoint an authenticating agent that
shall be authorized to act on its behalf and subject to its direction in the authentication and
delivery of Notes in connection with the original issuance thereof and transfers and exchanges of
Notes hereunder, including under Section 2.04, Section 2.05, Section 2.07, Section 11.04 and
Section 16.03 as fully to all intents and purposes as though the authenticating agent had been
expressly authorized by this Indenture and those Sections to authenticate and deliver Notes. For
all purposes of this Indenture, the authentication and delivery of Notes by the authenticating
agent shall be deemed to be authentication and delivery of such Notes “by the Trustee” and a
certificate of authentication executed on behalf of the Trustee by an authenticating agent shall be
deemed to satisfy any requirement hereunder or in the Notes for the Trustee’s certificate of
authentication. Such authenticating agent shall at all times be a Person eligible to serve as
trustee hereunder pursuant to Section 8.09.



Any corporation or other entity into which any authenticating agent may be merged or converted
or with which it may be consolidated, or any corporation or other entity resulting from any merger,
consolidation or conversion to which any authenticating agent shall be a party, or any corporation
or other entity succeeding to the corporate trust business of any authenticating agent, shall be
the successor of the authenticating agent hereunder, if such successor corporation or other entity
is otherwise eligible under this Section 17.11, without the execution or filing of any paper or any
further act on the part of the parties hereto or the authenticating agent or such successor
corporation or other entity.



Any authenticating agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating
agent by giving written notice of termination to such authenticating agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible under this Section 17.11, the Trustee may appoint a
successor authenticating agent (which may be the Trustee), shall give written notice of such
appointment to the Company and shall mail notice of such appointment to all Noteholders as the
names and addresses of such Holders appear on the Note Register.



The Company agrees to pay to the authenticating agent from time to time reasonable
compensation for its services although the Company may terminate the authenticating agent, if it
determines such agent’s fees to be unreasonable.



The provisions of Section 8.02, Section 8.03, Section 8.04, Section 9.03 and this Section
17.11 shall be applicable to any authenticating agent.


 


85









 





If an authenticating agent is appointed pursuant to this Section 17.11, the Notes may have
endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative
certificate of authentication in the following form:



                                                                     
           ,

as Authenticating Agent, certifies that this is one of the Notes described
in the within-named Indenture.



	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Officer
	 	 






Section 17.12. Execution in Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.



Section 17.13. Severability. In the event any provision of this Indenture or in the Notes
shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity,
legality or enforceability of the remaining provisions shall not in any way be affected or
impaired.



Section 17.14. Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION
CONTEMPLATED HEREBY.



Section 17.15. Consent to Jurisdiction; Consent to Service of Process.



(a) The Company hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of any New York State court or federal court of the United States
sitting in the State and City of New York, County and Borough of Manhattan, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this Indenture or the
Notes, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such state court sitting in the State and City of New York, County
and Borough of Manhattan or, to the extent permitted by law, in such federal court sitting in the
State and City of New York, County and Borough of Manhattan. The Company further irrevocably
consents to the service of process in any action or proceeding in such courts by the mailing
thereof by any parties thereto by registered or certified mail, postage prepaid, to the Company at
Corporation Service Company, Suite 3100, 1133 Avenue of the Americas, New York, NY, 10036. Each of
the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.



(b) The Company hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Indenture or the Notes in any New York State or federal court. Each
of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.


 


86









 





Section 17.16. Force Majeure. In no event shall the Trustee be responsible or liable for
any failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts that are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.



Section 17.17. Currency Indemnity. U.S. dollars are the sole currency of account and payment
for all sums payable by us in cash under or in connection with the Notes, including damages. Any
amount received or recovered in a currency other than U.S. dollars (as a result of, or through the
enforcement of, a judgment or order of a court of any jurisdiction, in the Company’s winding-up or
dissolution or otherwise) by any Holder of a Note in respect of any sum expressed to be due to it
from the Company will only constitute a discharge to the Company to the extent of the U.S. dollar
amount that the recipient is able to purchase with the amount so received or recovered in that
other currency on the date of that receipt or recovery (or, if it is not practicable to make that
purchase on that date, on the first date on which it is practicable to do so). If that U.S. dollar
amount is less than the U.S. dollar amount expressed to be due to the recipient under any Note, the
Company shall indemnify such Holder against any loss sustained by it as a result; and if the amount
of U.S. dollars so purchased is greater than the sum originally due to such Holder, such Holder
will, by accepting a Note, be deemed to have agreed to repay such excess. In any event, the Company
shall indemnify the recipient against the cost of making any such purchase.


 


87









 





Section 17.18. Calculations. Except as otherwise provided in the Indenture, the Company
shall be responsible for making all calculations called for under the Notes. These calculations
include, but are not limited to, determinations of the Last Reported Sale Prices, accrued interest
(including Additional Interest, if any) payable on the Notes and the Conversion Rate. The Company
shall make all these calculations in good faith and, absent manifest error, the calculations shall
be final and binding on Holders of Notes. The Company shall provide a schedule of its calculations
to each of the Trustee and the Conversion Agent, and each of the Trustee and Conversion Agent is
entitled to rely conclusively upon the accuracy of the Company’s calculations without independent
verification. The Trustee will forward the Company’s calculations to any Holder upon the written
request of that Holder.



Section 17.19. U.S.A. Patriot Act. The parties hereto acknowledge that in accordance with
Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to
help fight the funding of terrorism and money laundering, is required to obtain, verify, and record
information that identifies each person or legal entity that establishes a relationship or opens
an account with the Trustee. The parties to this Indenture agree that they will provide the
Trustee with all such information as it may request in order to satisfy the requirements or its
obligations under such act.



[Remainder of this page intentionally left blank]



 


88









 





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



	 	 	 	 	 
	 	LIZ CLAIBORNE, INC.

 	 
	 	By:  	/s/ Nicholas Rubino
 	 
	 	 	Name:  	Nicholas Rubino 	 
	 	 	Title:  	Senior Vice President,
Chief Legal Officer,
 General Counsel and Corporate Secretary 	 
	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON, as Trustee

 	 
	 	By:  	/s/
CHRISTOPHER GREENE 	 
	 	 	Name:  	CHRISTOPHER GREENE 	 
	 	 	Title:  	VICE PRESIDENT 	 
	 



[signature page to Indenture]




 


 









 





EXHIBIT A




[FORM OF FACE OF NOTE]




[INCLUDE IF A GLOBAL NOTE]




[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), 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 DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]



[INCLUDE IF A RESTRICTED SECURITY]




[THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:




(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED
INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT
IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND




 


1









 





(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT
IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW,
EXCEPT:




(A) TO LIZ CLAIBORNE, INC. (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, OR




(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER
THE SECURITIES ACT, OR




(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER
THE SECURITIES ACT, OR




(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.



PRIOR TO ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE
RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY
REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE
WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE
AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]


 


2









 





LIZ CLAIBORNE, INC.




6% Convertible Senior Note due 2014




			
	 	 	 
	No.                     
	 	Initially $                    






CUSIP No. 539320 AA9




Liz Claiborne, Inc., a corporation duly organized and validly existing under the laws of the
State of Delaware (herein called the “Company,” which term includes any successor corporation or
other entity under the Indenture referred to on the reverse hereof), for value received hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of                      DOLLARS
(which amount may from time to time be increased or decreased to such other principal amounts as
permitted by the Indenture by adjustments made on the records of the Trustee or the Custodian of
the Depositary as set forth in Schedule A hereto, in accordance with the rules and procedures of
the Depositary) on June 15, 2014, and interest thereon as set forth below.



This Note shall bear interest at the rate of 6% per year (subject to increase pursuant to
Section 7.01 and Section 14.01 of the Indenture) from June 24, 2009, or from the most recent date
to which interest has been paid or provided for to, but excluding, the next scheduled Interest
Payment Date until June 15, 2014. Interest is payable semi-annually in arrears on each June 15 and
December 15, commencing December 15, 2009, to Holders of record at the close of business on the
preceding June 1 and December 1 (whether or not such day is a Business Day), respectively.



The Company will pay interest on overdue principal, and, to the extent lawful, on overdue
interest, in each case at a rate of 6% per annum. Interest not paid when due and any interest on
principal or interest not paid when due will be paid to Holders on a special record date, which
will be not more than fifteen (15) calendar days and not less than ten (10) calendar days prior to
the day fixed by the Company for the payment of such interest, whether or not such day is a
Business Day. The Company shall notify the Trustee in writing at least twenty-five (25) calendar
days prior to the special record date of such special record date and the Trustee, in the name and
at the expense of the Company, shall cause notice of the proposed payment and the special record
date therefor to be mailed, first-class postage prepaid, to each holder at its address as it
appears in the Note Register or shall facilitate the transmission of such notice through DTC, not
less than ten (10) calendar days prior to such special record date.


 


3









 





Payment of the principal of, and accrued and unpaid interest on, this Note shall be made at
the office or agency of the Company maintained for that purpose in such lawful money of the United
States of America as at the time of payment shall be legal tender for the payment of public and
private debts; provided, however, that interest may be paid by check mailed to such Holder’s
address as it appears in the Note Register; provided further, however, that, with respect to any Noteholder
with an aggregate principal amount in excess of $5,000,000, at the application of such Holder in
writing to the Trustee and Paying Agent (if different from the Trustee) not later than the relevant
Interest Record Date, accrued and unpaid interest on such Holder’s Notes shall be paid by wire
transfer in immediately available funds to such Holder’s account in the United States, which
application shall remain in effect until the Noteholder notifies the Trustee and Paying Agent to
the contrary; provided that any payment to the Depositary or its nominee shall be paid by wire
transfer in immediately available funds in accordance with the wire transfer instruction supplied
by the Depositary or its nominee from time to time to the Trustee and Paying Agent (if different
from Trustee).



Reference is made to the further provisions of this Note set forth on the reverse hereof,
including, without limitation, provisions giving the Holder of this Note the right to convert this
Note into cash, 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 Note shall be deemed to be a contract made under the laws of the State of New York, and
for all purposes shall be construed in accordance with and governed by the laws of said State
without regard to conflicts of laws principles thereunder that would indicate the applicability of
the laws of any other jurisdiction.



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



[Remainder of page intentionally left blank]




 


4









 







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



	 	 	 	 	 
	 	LIZ CLAIBORNE, INC.

 	 
	 	By:  	/s/ Andrew Warren
 	 
	 	 	Name:  	Andrew Warren 	 
	 	 	Title:  	EVP and CFO 	 
	 




Dated:



TRUSTEE’S CERTIFICATE OF AUTHENTICATION

THE BANK OF NEW YORK MELLON

as Trustee, certifies that this is one of the Notes described

in the within-named Indenture.




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Officer
	 	 





 


5









 





[FORM OF REVERSE OF NOTE]




LIZ CLAIBORNE, INC.

6% Convertible Senior Note due 2014




This Note is one of a duly authorized issue of the Notes of the Company, designated as its 6%
Convertible Senior Notes due 2014 (herein called the “Notes”), all issued or to be issued under and
pursuant to an Indenture dated as of June 24, 2009 (herein called the “Indenture”), between the
Company and The Bank of New York Mellon (herein called the “Trustee”), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company
and the Holders. In the event of any conflict or inconsistency between the terms and provisions of
this Note and the terms and provisions of the Indenture, the terms and provisions of the Indenture
shall control. Additional Notes may be issued in an unlimited aggregate principal amount, subject
to certain conditions specified in the Indenture.



In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of and accrued and unpaid interest, if any, on all Notes may be declared,
by either the Trustee or Noteholders of not less than 25% in aggregate principal amount of Notes
then outstanding, and upon said declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions and certain exceptions set forth in the Indenture.



Subject to the terms and conditions of the Indenture, the Company will make all payments and
deliveries in respect of the Fundamental Change Purchase Price and the principal amount on the
Maturity Date, as the case may be, to the Holder who surrenders a Note to a Paying Agent to collect
such payments in respect of the Note. 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, and in other circumstances, with the consent of
the Holders of not less than a majority in aggregate principal amount of the Notes at the time
outstanding, evidenced as in the Indenture provided, to execute supplemental indentures modifying
the terms of the Indenture and the Notes 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 Notes at the time outstanding may on behalf of the Holders of all of the Notes waive
any past Default or Event of Default under the Indenture and its consequences.



No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of and accrued and unpaid interest, if any, on this Note at the place, at the respective times, at the rate and in the
lawful money herein prescribed.


 


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The Notes 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, Notes may
be exchanged for a like aggregate principal amount of Notes 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 tax, assessments or other governmental charges that may be imposed in
connection therewith as a result of the name of the Noteholder of the new Notes issued upon such
exchange of Notes being different from the name of the Noteholder of the old Notes surrendered for
such exchange.



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



Upon the occurrence of a Fundamental Change, the Company will offer to purchase any and all of
the Notes. The Holder has the right, at such Holder’s option, to accept such offer and require the
Company to purchase for cash all of such Holder’s Notes or any portion thereof (in principal
amounts of $1,000 or integral multiples thereof) on the Fundamental Change Purchase Date at a price
equal to the Fundamental Change Purchase Price.



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



Capitalized terms used in this Note and defined in the Indenture are used herein as therein
defined.


 


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ABBREVIATIONS




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



TEN COM = as tenants in common



UNIF GIFT MIN ACT = Uniform Gifts to Minors Act



CUST = Custodian



TEN ENT = as tenants by the entireties



JT TEN = joint tenants with right of survivorship and not as tenants in common



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


 


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SCHEDULE A




LIZ CLAIBORNE, INC.

6% Convertible Senior Notes due 2014




The initial principal amount of this Global Note is $                    . The following increases or
decreases in this Global Note have been made:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Principal Amount	 	 	Signature of	 
	 	 	Amount of	 	 	Amount of	 	 	of this Global Note	 	 	authorized	 
	 	 	decrease in	 	 	increase in	 	 	following such	 	 	signatory of	 
	 	 	Principal Amount	 	 	Principal Amount	 	 	decrease or	 	 	Trustee or	 
	Date of Exchange	 	of this Global Note	 	 	of this Global Note	 	 	increase	 	 	Custodian	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





 


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ATTACHMENT 1




[FORM OF CONVERSION NOTICE]




To: LIZ CLAIBORNE, INC.



The undersigned registered owner of this Note hereby exercises the option to convert this
Note, or the portion hereof (that is $1,000 principal amount or an integral multiple thereof) below
designated, into shares of Common Stock and the Company, at its election, may deliver cash, shares
of Common Stock or a combination of cash and shares of Common Stock in accordance with the terms of
the Indenture referred to in this Note, and directs that any share of Common Stock issuable and
deliverable upon such conversion, together with any cash and any Notes representing any unconverted
principal amount hereof, be issued and delivered to the registered Holder hereof unless a different
name has been indicated below. If any share of Common Stock or any portion of this Note not
converted are to be issued in the name of a Person other than the undersigned, the undersigned will
pay all transfer taxes payable with respect thereto. Any amount required to be paid to the
undersigned on account of interest accompanies this Note.



	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature(s)
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Signature Guarantee	 	 	 	 






Signature(s) must be guaranteed

by an eligible Guarantor Institution

(banks, stock brokers, savings and

loan associations and credit unions)

with membership in an approved

signature guarantee medallion program

pursuant to Securities and Exchange

Commission Rule 17Ad-15 if

shares of Common Stock are to be issued, or

Notes to be delivered, other than

to and in the name of the registered Holder.



 


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Fill in for registration of shares if

to be issued, and Notes if to

be delivered, other than to and in the

name of the registered Holder:




	 	 	 
	 


	 	 
	(Name)
	 	 
	 
	 	 
	 

(Street Address)

	 	 
	 
	 	 
	 

(City, State and Zip Code)

	 	 
	Please print name and address
	 	 
	 
	 	 
	 
	 	Principal amount to be converted (if less than all):
	 	 	$______,000

	 
	 	 
	 

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

	 	 
	 

	 	Social Security or Other Taxpayer

Identification Number





 


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ATTACHMENT 2




[FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE]




To: LIZ CLAIBORNE, INC.



The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Liz
Claiborne, Inc. (the “Company”) as to the occurrence of a Fundamental Change with respect to the
Company, offering to purchase the Notes and specifying the Fundamental Change Purchase Date. The
undersigned registered owner of this Note hereby accepts the Company’s offer to purchase the Notes
and instructs the Company to pay to the registered Holder hereof in accordance with the applicable
provisions of the Indenture referred to in this Note (1) the entire principal amount of this Note,
or the portion thereof (that is $1,000 principal amount or an integral multiple thereof) below
designated, and (2) if such Fundamental Change Purchase Date does not fall during the period after
an Interest Record Date and on or prior to the Business Day after the corresponding Interest
Payment Date, accrued and unpaid interest thereon to, but excluding, such Fundamental Change
Purchase Date.



In the case of certificated Notes, the certificate numbers of the Notes to be purchased are as
set forth below:



Dated:                                                             




	 	 	 
	 

	 	 
	 

	 	Signature(s)
	 
	 	 
	 

	 	 
	 

	 	Social Security or Other Taxpayer

Identification Number
	 
	 	 
	 

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

	 	$                    ,000
	 
	 	 
	 

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






 


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ATTACHMENT 3




[FORM OF ASSIGNMENT AND TRANSFER]




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



In connection with any transfer of the within Note occurring prior to the Resale Restriction
Termination Date, as defined in the Indenture governing such Note, the undersigned confirms that
such Note is being transferred:




o To Liz Claiborne, Inc. or a subsidiary thereof; or



o Pursuant to the registration statement that has become or been declared effective under the
Securities Act of 1933, as amended; or



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



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



o Pursuant to another available exemption from registration under the Securities Act of 1933, as
amended.



 


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Dated:                                                             



	 	 	 
	 


	 	 
	 

Signature(s)

	 	 
	 
	 	 
	 

Signature Guarantee

	 	 






Signature(s) must be guaranteed by an

eligible Guarantor Institution (banks, stock

brokers, savings and loan associations and

credit unions) with membership in an approved

signature guarantee medallion program pursuant

to Securities and Exchange Commission

Rule 17Ad-15 if Notes are to be delivered, other

than to and in the name of the registered Holder.




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




 


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