NOVELLUS SYSTEMS INC - FORM 8-K - EX-4.1 - INDENTURE

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8-K - FORM 8-K - NOVELLUS SYSTEMS INC	d8k.htm
EX-99.1 - PRESS RELEASE - NOVELLUS SYSTEMS INC	dex991.htm

Exhibit 4.1

NOVELLUS SYSTEMS, INC.

as Issuer

AND

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

as Trustee

Indenture

Dated as of May 10, 2011

2.625% Senior Convertible Notes due 2041

TABLE OF CONTENTS


		Page

ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

Section 1.01.	Definitions		1
Section 1.02.	Compliance Certificates and Opinions		10
Section 1.03.	Form of Documents Delivered to Trustee		10
Section 1.04.	Acts of Holders; Record Dates		11
Section 1.05.	Notices, Etc., to Trustee and Company		11
Section 1.06.	Notice to Holders; Waiver		12
Section 1.07.	Conflict with Trust Indenture Act		13
Section 1.08.	Effect of Headings and Table of Contents		13
Section 1.09.	Successors and Assigns		13
Section 1.10.	Severability Clause		13
Section 1.11.	Benefits of Indenture		13
Section 1.12.	Governing Law; Waiver of Jury Trial		13
Section 1.13.	Legal Holiday		13
Section 1.14.	No Recourse Against Others		13
Section 1.15.	Force Majeure		13
Section 1.16.	U.S.A. Patriot Act		14
Section 1.17.	Execution in Counterparts		14
Section 1.18.	Calculations		14

ARTICLE 2
SECURITY FORMS

Section 2.01.	Forms Generally		14
Section 2.02.	Form of Face of Security		15
Section 2.03.	Form of Reverse of Security		18
Section 2.04.	Form of Trustee’s Certificate of Authentication		23

ARTICLE 3
THE SECURITIES
Section 3.01.	Title and Terms; Payments		23
Section 3.02.	Denominations		24
Section 3.03.	Execution, Authentication, Delivery and Dating		24
Section 3.04.	Temporary Securities		24
Section 3.05.	Security Registrar, Paying Agent and Conversion Agent		25
Section 3.06.	Mutilated, Destroyed, Lost and Stolen Securities		25
Section 3.07.	Holder Lists		26
Section 3.08.	Transfer and Exchange		26
Section 3.09.	Transfer Restrictions		29
Section 3.10.	Expiration of Restrictions		30
Section 3.11.	CUSIP Numbers		31
Section 3.12.	Cancellation		32
Section 3.13.	Persons Deemed Owners		32



ARTICLE 4
INTEREST

Section 4.01.	Generally	32
Section 4.02.	Contingent Interest	33
Section 4.03.	Bid Solicitation Agent’s Responsibilities in Respect of Contingent Interest	34
Section 4.04.	Payment of Contingent Interest	34
Section 4.05.	Contingent Interest Notification	34

ARTICLE 5
COVENANTS

Section 5.01.	Payments	35
Section 5.02.	Maintenance of Office or Agency	35
Section 5.03.	Appointments to Fill Vacancies in Trustee’s Office	35
Section 5.04.	Money for Security Payments to be Held in Trust	35
Section 5.05.	Statement by Officers as to Default	36
Section 5.06.	Existence	36
Section 5.07.	Rule 144A Information Requirement	36
Section 5.08.	Book-Entry System	37
Section 5.09.	Additional Interest	37
Section 5.10.	Commission Filings and Reports	37
Section 5.11.	Stay, Extension and Usury Laws	37
Section 5.12.	Information for IRS Filings	37
Section 5.13.	Further Instruments and Acts	38
Section 5.14.	Tax Treatment of the Securities	38

ARTICLE 6
REDEMPTION

Section 6.01.	Right to Redeem; Notices to Trustee	38
Section 6.02.	Selection of Securities to be Redeemed	38
Section 6.03.	Notice of Redemption	39
Section 6.04.	Effect of Notice of Redemption	39
Section 6.05.	Deposit of Redemption Price	40
Section 6.06.	Securities Redeemed in Part	40

ARTICLE 7
FUNDAMENTAL CHANGES AND REPURCHASES THEREUPON

Section 7.01.	Repurchase at Option of Holders Upon a Fundamental Change	40
Section 7.02.	Effect of Fundamental Change Repurchase Notice	42
Section 7.03.	Withdrawal of Fundamental Change Repurchase Notice	42
Section 7.04.	Deposit of Fundamental Change Repurchase Price	42
Section 7.05.	Securities Repurchased in Whole or in Part	43
Section 7.06.	Covenant to Comply with Securities Laws Upon Repurchase of Securities	43
Section 7.07.	Repayment to the Company	43

ARTICLE 8
CONVERSION
Section 8.01.	Conversion Obligation	43
Section 8.02.	Conversion Procedure	45
Section 8.03.	Adjustment of Conversion Rate	47
Section 8.04.	Shares to Be Fully Paid	54


Section 8.05.	Adjustments of Average Prices	55
Section 8.06.	Adjustment in Connection with a Make-Whole Fundamental Change	55
Section 8.07.	Effect of Recapitalizations, Reclassifications and Changes to the Common Stock	56
Section 8.08.	Certain Covenants	57
Section 8.09.	Responsibility of Trustee	57
Section 8.10.	Notice to Holders Prior to Certain Actions	57
Section 8.11.	Shareholder Rights Plans	58
Section 8.12.	Exchange in Lieu of Conversion	58

ARTICLE 9
EVENTS OF DEFAULT; REMEDIES

Section 9.01.	Events of Default	59
Section 9.02.	Acceleration of Maturity; Rescission and Annulment	60
Section 9.03.	Additional Interest	61
Section 9.04.	Collection of Indebtedness and Suits for Enforcement by Trustee	61
Section 9.05.	Trustee May File Proofs of Claim	62
Section 9.06.	Application of Money Collected	62
Section 9.07.	Limitation on Suits	62
Section 9.08.	Unconditional Right of Holders to Receive Payment	63
Section 9.09.	Restoration of Rights and Remedies	63
Section 9.10.	Rights and Remedies Cumulative	63
Section 9.11.	Delay or Omission Not Waiver	63
Section 9.12.	Control by Holders	63
Section 9.13.	Waiver of Past Defaults	64
Section 9.14.	Undertaking for Costs	64

ARTICLE 10
CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER OR LEASE

Section 10.01.	Company May Consolidate, etc., Only on Certain Terms	64
Section 10.02.	Successor Substituted	65

ARTICLE 11
THE TRUSTEE

Section 11.01.	Certain Duties and Responsibilities	65
Section 11.02.	Notice of Defaults	65
Section 11.03.	Certain Rights Of Trustee	66
Section 11.04.	Not Responsible for Recitals	67
Section 11.05.	May Hold Securities	67
Section 11.06.	Money Held in Trust	67
Section 11.07.	Compensation, Reimbursement; Indemnification	67
Section 11.08.	Disqualification; Conflicting Interests	68
Section 11.09.	Corporate Trustee Required; Eligibility	68
Section 11.10.	Resignation and Removal; Appointment of Successor	69
Section 11.11.	Acceptance of Appointment by Successor	69
Section 11.12.	Merger, Conversion, Consolidation or Succession to Business	70
Section 11.13.	Preferential Collection of Claims against the Company	70

ARTICLE 12
HOLDERS’ LISTS AND REPORTS BY TRUSTEE

Section 12.01.	Company to Furnish Trustee Names and Addresses of Holders	70
Section 12.02.	Preservation of Information; Communications to Holders	70
Section 12.03.	Reports By Trustee	71

iii



ARTICLE 13
SATISFACTION AND DISCHARGE

Section 13.01.	Satisfaction and Discharge of Indenture	71
Section 13.02.	Application of Trust Money	71

ARTICLE 14
SUPPLEMENTAL INDENTURES

Section 14.01.	Supplemental Indentures Without Consent of Holders	72
Section 14.02.	Supplemental Indentures With Consent of Holders	72
Section 14.03.	Execution of Supplemental Indentures	73
Section 14.04.	Effect of Supplemental Indentures	73
Section 14.05.	Conformity with Trust Indenture Act	73
Section 14.06.	Reference in Securities to Supplemental Indentures	73

INDENTURE, dated as of May 10, 2011, between Novellus Systems, Inc., a corporation duly organized and existing under the laws of the State of California, as Issuer (the “Company”), having its principal office at 4000 North First Street, San Jose, California 95134 and The Bank of New York Mellon Trust Company, N.A., a national banking association, as Trustee (the “Trustee”).

RECITALS OF THE COMPANY

WHEREAS, the Company has duly authorized the creation of an issue of 2.625% Senior Convertible Notes due 2041 (each a “Security” and collectively, the “Securities”) of the tenor and amount hereinafter set forth, and to provide therefor the Company has duly authorized the execution and delivery of this Indenture; and

WHEREAS, all things necessary to make the Securities, when executed by the Company and authenticated and delivered hereunder and duly issued by the Company, the legal, valid and binding obligations of the Company, and to make this Indenture a legal, valid and binding agreement of the Company, in accordance with the terms of the Securities and the Indenture, have been done;

NOW, THEREFORE, THIS INDENTURE WITNESSETH, for and in consideration of the premises and the purchases of the Securities by the Holders thereof, it is mutually agreed, for the benefit of the Company and the equal and proportionate benefit of all Holders of the Securities, as follows:

ARTICLE 1

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

Section 1.01. Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(a) the terms defined in this Article 1 have the meanings assigned to them in this Article 1 and include the plural as well as the singular;

(b) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

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

“Act,” when used with respect to any Holder, has the meaning specified in Section 1.04.

“Additional Interest” means all amounts, if any, payable pursuant to Section 9.03 hereof.

“Additional Shares” has the meaning specified in Section 8.06.

“Adjustment Determination Date” has the meaning specified in Section 8.03(m).

“Adjustment Event” has the meaning specified in Section 8.03(m).

“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 the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Agent Members” has the meaning specified in Section 2.01.

“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Security or any beneficial interest therein, the rules and procedures of the Depositary for such Security, in each case to the extent applicable to such transfer or transaction and as in effect from time to time.

“Bid Solicitation Agent” means an independent nationally recognized securities dealer selected by the Company to solicit market bid quotations for the Securities, which shall in no event be an Affiliate of the Company. The Trustee shall initially be the Bid Solicitation Agent.

“Board of Directors” means, with respect to any Person, either the board of directors of such Person or any duly authorized committee of that board.

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

“Business Day” means any day other than a Saturday, a Sunday, 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 or a day on which banking institutions and the Corporate Trust Office are authorized by regulation or executive order to close.

“Capital Stock” means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock and, with respect to partnerships, partnership interests (whether general or limited) and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership.

“Clause A Distribution” has the meaning set forth in Section 8.03(c).

“Clause B Distribution” has the meaning set forth in Section 8.03(c).

“Clause C Distribution” has the meaning set forth in Section 8.03(c).

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

“Code” means the Internal Revenue Code of 1986, as amended.

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

“Common Stock” means the shares of common stock, no par value, of the Company as they exist on the date of this Indenture or any other shares of Capital Stock of the Company into which the Common Stock shall be reclassified or changed or, in the event of a merger, consolidation or other similar transaction involving the Company that is otherwise permitted hereunder in which the Company is not the surviving corporation, the common stock, common equity interests, ordinary shares or depositary shares or other certificates representing common equity interests of such surviving corporation or its direct or indirect parent corporation.

“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

“Company Request” or “Company Order” means a written request or order signed in the name of the Company by its Chairman of the Board of Directors, its Vice Chairman of the Board of Directors, its President or

any Vice President, its Chief Financial Officer, its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.

“Contingent Interest” has the meaning specified in Section 4.02(a).

“Conversion Agent” means the Trustee or such other office or agency designated by the Company where Securities may be presented for conversion.

“Conversion Date” has the meaning specified in Section 8.02(e).

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

“Conversion Rate” has the meaning specified in Section 8.01(a).

“Contingent Debt Regulations” has the meaning specified in Section 5.14

“Corporate Trust Office” means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be principally administered, which office is, at the date of this Indenture, located at 700 S. Flower Street, 5^th Floor, Los Angeles, CA 90017, Attention: Corporate Unit.

“Corporation” means a corporation, association, company, joint-stock company or business trust.

“Daily Conversion Value” has the meaning specified in Section 8.02(a).

“Daily Settlement Amount” has the meaning specified in Section 8.02(a).

“Daily Share Cap” means 1.1901 shares of Common Stock per $1,000 principal amount of Securities, which is equivalent to the quotient of (i) 19.99% of the number of shares of Common Stock outstanding immediately prior to the Issue Date divided by (ii) the product of (A) the aggregate Principal Amount of Securities Outstanding on the Issue Date (expressed in thousands) and (B) the number of Trading Days in the Observation Period; provided that to the extent that additional Securities are issued pursuant to the Initial Purchasers’ overallotment right granted pursuant to the Purchase Agreement, the Daily Share Cap shall be adjusted with such additional Securities included in “the aggregate Principal Amount of Securities Outstanding on the Issue Date” in the preceding equation.

“Default” means any event that is, or with the passage of time or the giving of notice or both, would become an Event of Default.

“Depositary” means The Depository Trust Company until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean such successor Depositary.

“Distributed Property” has the meaning specified in Section 8.03(c).

“Downside Trigger” means $600 per $1,000 principal amount of notes during the period prior to November 15, 2021. Beginning on November 15, 2021 and ending on May 15, 2039, the downside trigger will increase in increments of $10 per $1,000 principal amount of notes per semi-annual ordinary interest period on May 15 and November 15 of each year within such period. After May 15, 2039, the downside trigger will remain at $960 per $1,000 principal amount of notes.

“Event of Default” has the meaning specified in Section 9.01.

“Ex-Dividend Date” means, with respect to any dividend, distribution or issuance on the Common Stock or any other equity security, the first date on which the shares of Common Stock or such other equity security trade

on the applicable exchange or in the applicable market, regular way, without the right to receive such dividend, distribution or issuance.

“Extraordinary Dividend” has the meaning specified in Section 4.02(a).

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Free Trade Date” means the date that is one year after the last date of original issuance of the Securities.

“Freely Tradable” means, with respect to any Securities, that such Securities (i) are eligible to be sold by a Person who is not an affiliate of the Company (within the meaning of Rule 144) and has not been an affiliate of the Company (within the meaning of Rule 144) during the immediately preceding three months without any volume or manner of sale restrictions under the Securities Act, (ii) do not bear a Restricted Securities Legend and (iii) with respect to Global Securities only, are identified by an Unrestricted Securities CUSIP number in the facilities of the applicable depositary; provided that clauses (ii) and (iii) will apply only after the Free Trade Date.

“Free Transferability Certificate” means a certificate substantially in the form of Exhibit C.

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

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

(ii) the consummation of (A) (i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination or changes in par value) as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities or 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 (in each of cases (i) and (ii), other than any such transaction which is effected solely to change the Company’s jurisdiction of incorporation to another State within the United States of America or the District of Columbia and that results in a reclassification, conversion or exchange of the outstanding shares of the Common Stock solely into shares of Common Stock of the surviving entity), or (B) any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the Company’s consolidated assets and the Company’s Subsidiaries, taken as a whole, to any Person other than the Company or one of the Company’s Subsidiaries; provided, however, that a transaction where the holders of all classes of the Company’s Capital Stock immediately prior to such transaction that is a share exchange, consolidation or merger own, as a result of such transaction, directly or indirectly, more than 50% of the total voting power of the Capital Stock of the continuing or surviving corporation or transferee or the parent thereof, immediately after such event shall not be a Fundamental Change;

(iii) the Company is liquidated or dissolved or the holders of the Common Stock approve any plan or proposal for the Company’s liquidation or dissolution; or

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

provided, however, that a Fundamental Change will be deemed not to have occurred if at least 90% of the consideration, excluding cash payments for fractional shares and cash payments made in respect of dissenter’s rights, associated with any of the events described in clause (i) or (ii) above consists of Publicly Traded Securities and as a result of such event the Securities become convertible into cash and, if applicable, such Publicly Traded Securities, pursuant to a supplemental indenture entered into in accordance with Section 10.01. Any event that

constitutes a Fundamental Change under both clauses (i) and (ii) of the definition hereof will be deemed to be a Fundamental Change solely under clause (ii).

“Fundamental Change Company Notice” has the meaning specified in Section 7.01(b).

“Fundamental Change Repurchase Date” has the meaning specified in Section 7.01(a).

“Fundamental Change Repurchase Notice” has the meaning specified in Section 7.01(a).

“Fundamental Change Repurchase Price” has the meaning specified in Section 7.01(a).

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

“Global Security” means a Security in global form registered in the Security Register in the name of a Depositary or a nominee thereof.

“Holder” means a Person in whose name a Security is registered in the Security Register.

“Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively.

“Initial Purchasers” means J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representatives of the initial purchasers listed in Schedule I of the Purchase Agreement.

“Interest” means (i) Regular Interest, (ii) Contingent Interest, if any and (iii) Additional Interest, if any.

“Interest Payment Date” means (i) with respect to any payment of Interest other than Interest payable upon designation of an Extraordinary Dividend, each May 15 and November 15 of each year, beginning November 15, 2011 and (ii) with respect to Interest payable upon designation of an Extraordinary Dividend, the date specified by the Company’s Board of Directors for the payment of such Interest in accordance with Section 4.02 (a)(ii).

“Investment Company Act” means the Investment Company Act of 1940 and any statutory successor thereto, in each case as amended from time to time.

“Issue Date” means the date the Securities are originally issued as set forth on the face of the Security under this Indenture.

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

“Make-Whole Effective Date” has the meaning specified in Section 8.06(b).

“Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental Change and any event that would constitute a Fundamental Change if not for the proviso in clause (2) of the definition thereof.

“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,” when used with respect to any Security, means the date on which the Principal Amount, Redemption Price or Fundamental Change Repurchase Price of such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity, on a Redemption Date or Fundamental Change Repurchase Date, by declaration of acceleration or otherwise.

“Measurement Period” has the meaning specified in Section 8.01(a)(ii).

“Notice of Conversion” has the meaning specified in Section 8.02(d).

“Notice of Default” has the meaning specified in Section 9.01.

“Observation Period” means, with respect to any Security, (i) if the Conversion Date for such Security occurs prior to February 15, 2041, the 25 consecutive Trading Day period beginning on and including the second Trading Day after the Conversion Date for such Security; (ii) if the Conversion Date for such Security occurs on or after February 15, 2041, the 25 consecutive Trading Day period beginning on and including the 27^th Scheduled Trading Day immediately preceding May 15, 2041 (of if such Scheduled Trading Day is not a Trading Day, the immediately following Trading Day); and (iii) notwithstanding the foregoing, if the Conversion Date for such Security occurs after the date of issuance of a notice of redemption pursuant to Section 6.03, but prior to the close of business on the third Scheduled Trading Day immediately preceding the applicable Redemption Date, the 25 consecutive Trading Day period beginning on and including the 27^th Scheduled Trading Day immediately preceding the applicable Redemption Date (or, if such Scheduled Trading Day is not a Trading Day, the immediately following Trading Day).

“Offer Valuation Period” means, with respect to a tender or exchange offer, the ten consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires.

“Officers’ Certificate” means a certificate signed by any two of the Chief Executive Officer, Chief Financial Officer, any Executive Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee. One of the officers signing an Officers’ Certificate given pursuant to Section 5.05 shall be the principal executive, financial or accounting officer of the Company.

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

“Opinion of Counsel” means a written opinion reasonably acceptable to the Trustee of counsel, who may be external or in-house counsel for the Company.

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

(i) Securities theretofore cancelled by the Trustee or accepted by the Trustee for cancellation;

(ii) Securities, or portions thereof, for whose payment, redemption or repurchase money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that if such Securities are to be redeemed or repurchased prior to the maturity thereof, notice of such redemption or repurchase shall have been given to the Holders as herein provided, or provision satisfactory to a Responsible Officer of the Trustee shall have been made for giving such notice; and

(iii) Securities that have been paid or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture;

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

“Paying Agent” has the meaning specified in Section 3.05.

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

“Physical Securities” means permanent certificated Securities in registered form issued in denominations of $1,000 Principal Amount and integral multiples thereof.

“Principal Amount” of a Security means the Principal Amount as set forth on the face of the Security.

“Publicly Traded Securities” means, with respect to a Fundamental Change, shares of Capital Stock that are listed or quoted on the NASDAQ Global Select Market, The NASDAQ Global Market or the New York Stock Exchange (or any of their respective successors), or which will be so traded or quoted when issued or exchanged in connection with a Fundamental Change.

“Purchase Agreement” means the Purchase Agreement, dated May 5, 2011, entered into by the Company and the Initial Purchasers, in connection with the sale of the Securities.

“Qualified Institutional Buyer” or “QIB” shall have the meaning specified in Rule 144A.

“Record Date” means (i) with respect to any payment of Interest other than Interest payable upon designation of an Extraordinary Dividend, each May 1 and November 1 (whether or not a Business Day) and (ii) with respect to the payment of Interest payable upon designation of an Extraordinary Dividend, the record date specified by the Company’s Board of Directors for the payment of such Interest in accordance with Section 4.02(a)(ii).

“Redemption Date” shall mean the date specified for redemption of the Securities in accordance with the terms of the Securities and Article 6 hereof.

“Redemption Price” has the meaning specified in Section 6.01.

“Reference Property” has the meaning specified in Section 8.07(a).

“Regular Interest” has the meaning specified in Section 4.01(a).

“Resale Restriction Termination Date” has the meaning specified in Section 3.10.

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

“Restricted Global Security” has the meaning specified in Section 3.10.

“Restricted Security” means a Security that constitutes a “restricted security” within the meaning of Rule 144(a)(3) under the Securities Act.

“Restricted Securities CUSIP” means CUSIP number 670008AC5.

“Restricted Securities Legend” means a legend in the form set forth in Section 2.02, or any other substantially similar legend indicating the restricted status of the Securities under Rule 144.

“Restricted Stock” has the meaning specified in Section 3.09(b).

“Restricted Stock Legend” means a legend in the form set forth in Exhibit D hereto, or any other substantially similar legend indicating the restricted status of the Common Stock under Rule 144.

“Rule 144” means Rule 144 under the Securities Act (including any successor rule thereto), as the same may be amended from time to time.

“Rule 144A” means Rule 144A under the Securities Act (including any successor rule thereto), as the same may be amended from time to time.

“Rule 144A Information” has the meaning specified in the Securities.

“Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the primary United States national 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” shall mean any day scheduled to be a Business Day.

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

“Security” or “Securities” has the meaning herein specified in the first paragraph of the Recitals of the Company.

“Security Register” has the meaning specified in Section 3.07.

“Security Registrar” has the meaning specified in Section 3.05.

“Settlement Amount” has the meaning specified in Section 8.02(a).

“Significant Subsidiaries” has the meaning specified under Rule 1-02 of Regulation S-X under the Exchange Act.

“Spin-Off” has the meaning specified in Section 8.03(c).

“Stated Maturity,” when used with respect to any Security, means the date specified in such Security as the fixed date on which an amount equal to the Principal Amount of such Security together with accrued and unpaid Interest, if any, is due and payable.

“Stock Price” means, with respect to the Common Stock in connection with a Make-Whole Fundamental Change, (A) if holders of Common Stock receive only cash in a Make-Whole Fundamental Change described in clause (2) of the definition of Fundamental Change (except without regard to the proviso in clause (2) of such definition), the cash amount paid per share of Common Stock, and (B) in all other cases, the average of the Last Reported Sales Price of the Common Stock over the five Trading Day period ending on the Trading Day preceding the effective date of the Make-Whole Fundamental Change.

“Stock Transfer Agent” means Chase Mellon Shareholder Services or such other Person as may be designated by the Company as the transfer agent for the Common Stock.

“Subsidiary” means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, “voting stock” means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.

“Surviving Entity” has the meaning specified in Section 10.01.

“Trading Day” means a day on which (i) trading of the Common Stock generally occurs on The NASDAQ Global Select Market, or if the Common Stock is not then listed on the NASDAQ Global Select Market on the principal other 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, and (ii) a Last Reported Sale Price for the Common Stock is available on such securities exchange or market. If the Common Stock is not so listed or traded, “Trading Day” means any Business Day.

“Trading Price” of the Securities on any Trading Day means the average of the secondary market bid quotations per $1,000 Principal Amount of Securities obtained by the Bid Solicitation Agent for $5,000,000 Principal Amount of Securities at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers that are selected by the Company; provided that if at least three such bids cannot reasonably be obtained by the Bid Solicitation Agent, but two such bids can reasonably be obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained, that one bid shall be used. For purposes of Section 4.02 and Section 8.01(a)(ii), if the Bid Solicitation Agent cannot reasonably obtain at least one such bid for $5,000,000 Principal Amount of Securities then the Trading Price per $1,000 principal amount of Securities for such Trading Day will be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the applicable Conversion Rate on such Trading Day.

“Trading Price Condition” has the meaning specified in Section 8.02(a)(ii).

“transfer” has the meaning specified in Section 3.09(c).

“Trigger Event” has the meaning specified in Section 8.03(c).

“Trust Indenture Act” means the Trust Indenture Act of 1939 as in effect on the date as of which this Indenture was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any 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 instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.

“Unrestricted Securities CUSIP” means CUSIP number 670008AD3

“Unrestricted Stock CUSIP” means CUSIP number 67008101

“Upside Trigger” means $1,500 per $1,000 principal amount of notes.

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

“Valuation Period” has the meaning specified in 8.03(c).

“Volume-Weighted Average Price” means for any Trading Day the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “NVLS.UQ <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from 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 the Common Stock on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by the Company). The Volume-Weighted Average Price will be determined without regard to after hours trading or any other trading outside of the regular trading session trading hours.

Section 1.02. Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee compliance certificates and opinions. Each such certificate and opinion shall be given in the form of an Officers’ Certificate, if to be given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirement set forth in this Indenture.

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

(a) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

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

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

(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

Section 1.03. Form of Documents Delivered to Trustee (a) In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

(b) Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

(c) Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

Section 1.04. Acts of Holders; Record Dates. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as an “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 11.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 1.04.

(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee reasonably deems sufficient.

(c) The Company may, in the circumstances permitted by the Trust Indenture Act, fix any day as the record date for the purpose of determining the Holders entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized or permitted to be given or taken by Holders. If not set by the Company prior to the first solicitation of a Holder made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of Holders required to be provided pursuant to Section 12.01) prior to such first solicitation or vote, as the case may be. With regard to any record date, only the Holders on such date (or their duly designated proxies) shall be entitled to give or take, or vote on, the relevant action.

(d) The ownership of Securities shall be proved by the Security Register.

(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

Section 1.05. Notices, Etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:

(i) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (including facsimile) to or with the Trustee at its applicable Corporate Trust Office; or

(ii) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing (including facsimile) and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company, Attention: Corporate Secretary.

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

Section 1.06. Notice to Holders; Waiver. (a) Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at such Holder’s address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

(b) 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 by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

(c) Whenever under this Indenture the Trustee is required to provide any notice by mail, in all cases the Trustee may alternatively provide notice by overnight courier or by telefacsimile, with confirmation of transmission.

Section 1.07. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required hereunder to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, such provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.

Section 1.08. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof, and all Article and Section references are to Articles and Sections, respectively, of this Indenture unless otherwise expressly stated.

Section 1.09. Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.

Section 1.10. Severability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 1.11. Benefits of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their respective successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.

Section 1.12. Governing Law; Waiver of Jury Trial. This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflicts of law principles thereof. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 1.13. Legal Holiday. In any case where the Stated Maturity of any Security shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Securities) payment of principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on at the Stated Maturity. If any Interest Payment Date, the Stated Maturity or any earlier Fundamental Change Repurchase Date of a Security falls on a day that is not a Business Day, the required payment will be made on the next succeeding Business Day and no Interest on such payment will accrue in respect of the delay.

Section 1.14. No Recourse Against Others. None of the Company’s, or of any successor entity’s, direct or indirect shareholders, employees, officers or directors, as such, past, present or future, shall have any personal liability in respect of the obligations of the Company under the Indenture or the Securities solely by reason of his or its status as such shareholder, employee, officer or director.

Section 1.15. 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 which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

Section 1.16. 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 that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.

Section 1.17. Execution in Counterparts. This Indenture may be executed in two or more counterparts, which when so executed shall constitute one and the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or Portable Document Format (PDF) transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

Section 1.18. Calculations. Except as otherwise provided herein, the Company or its agents (other than the Trustee) will be responsible for making all calculations and determinations called for under the Indenture and the Securities. The Company or its agents (other than the Trustee) will make all such calculations and determinations in good faith and, absent manifest error, its calculations and determinations will be final and binding on Holders. The Company upon request will provide a schedule of its calculations to the Trustee, and the Trustee is entitled to rely conclusively upon the accuracy of the Company’s calculations and determinations without independent verification. The Trustee will deliver a copy of any such schedule provided to it to any Holder upon the written request of such Holder.

ARTICLE 2

SECURITY FORMS

Section 2.01. Forms Generally. (a) The Securities and the Trustee’s certificates of authentication shall be in substantially the forms set forth in this Article 2, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor, the Code and regulations thereunder, or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof.

(b) The Securities shall initially be (i) issued in the form of permanent Global Securities in registered form in substantially the form set forth in this Article 2 and (ii) registered in the name of the Depositary or the nominee of such Depositary, (iii) be delivered to the Trustee as custodian for the Depositary and (iv) bear legends as set forth on the face of the form of Security in Section 2.02.

(c) The aggregate Principal Amount of the Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, as hereinafter provided.

(d) Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, or the Trustee as its custodian, or under the Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of any Holder.

Section 2.02. Form of Face of Security. [INCLUDE IF SECURITY IS 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

(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 THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:

(A)

TO NOVELLUS SYSTEMS, 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 THE REGISTRATION OF 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.]

[INCLUDE IF SECURITY IS A GLOBAL SECURITY — THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION, 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 IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]

[INCLUDE IN ALL SECURITIES — THIS SECURITY WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. PURSUANT TO SECTION 5.14 OF THE INDENTURE, THE COMPANY AGREES, AND BY ACCEPTANCE OF A BENEFICIAL OWNERSHIP INTEREST IN THE SECURITIES EACH BENEFICIAL HOLDER OF A SECURITY AGREES, FOR UNITED STATES FEDERAL INCOME TAX PURPOSES, (I) TO TREAT THE SECURITIES AS INDEBTEDNESS OF THE COMPANY SUBJECT TO UNITED STATES TREASURY REGULATIONS SECTION 1.1275-4 (THE “CONTINGENT DEBT REGULATIONS”) AND, FOR PURPOSES OF THE CONTINGENT DEBT REGULATIONS, TO TREAT THE FAIR MARKET VALUE OF ANY COMMON STOCK BENEFICIALLY RECEIVED UPON CONVERSION AS A CONTINGENT PAYMENT, (II) TO BE BOUND BY THE COMPANY’S DETERMINATION OF THE “COMPARABLE YIELD” AND “PROJECTED PAYMENT SCHEDULE,” WITHIN THE MEANING OF THE CONTINGENT DEBT REGULATIONS, WITH RESPECT TO SUCH HOLDER’S SECURITIES AND (III) TO USE SUCH “COMPARABLE YIELD” AND “PROJECTED PAYMENT SCHEDULE” IN DETERMINING INTEREST ACCRUALS WITH RESPECT TO SUCH HOLDER’S SECURITIES AND IN DETERMINING ADJUSTMENTS THERETO. A HOLDER OF SECURITIES MAY OBTAIN THE ISSUE DATE, YIELD TO MATURITY, COMPARABLE YIELD AND THE PROJECTED PAYMENT SCHEDULE BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO: NOVELLUS SYSTEMS, INC., 4000 NORTH FIRST STREET, SAN JOSE, CA 95134

2.625% Senior Convertible Notes due 2041

CUSIP NO. 670008AC5

ISIN NO. US670008AC57


No.			U.S. $

Novellus Systems, Inc., a corporation duly organized and validly existing under the laws of the State of California (herein called the “Company”), which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] Million United States Dollars ($[ ]) (which amount may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, in accordance with the rules and procedures of the Depositary) on May 15, 2041. Interest on this Security will be payable (i) to Holders having an aggregate Principal Amount of $5,000,000 or less of Securities, by check mailed to such Holders and (ii) to Holders having an aggregate Principal Amount of more than $5,000,000 of Securities, either by check mailed to such Holders or, upon application by a Holder to the Security Registrar not later than the relevant Record Date for such Interest payment, by wire transfer in immediately available funds to such Holder’s account within the United States.

The Issue Date of this Security is May 10, 2011.

Reference is made to the further provisions of this Security set forth on the reverse hereof, including, without limitation, provisions giving the Company the right to redeem this Security under certain circumstances and provisions giving the Holder the right to convert this Security into Common Stock of the Company and to require the Company to repurchase this Security upon certain events, in each case, on the terms and subject to the limitations referred to on the reverse hereof and as more fully specified in the Indenture. Such further provisions shall for all purposes have the same effect as though fully set forth at this place. Capitalized terms used but not defined herein shall have such meanings as are ascribed to such terms in the Indenture.

This Security 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.

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

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


NOVELLUS SYSTEMS, INC

By:
		Authorized Signatory

Section 2.03. Form of Reverse of Security.

NOVELLUS SYSTEMS, INC.

2.625% Senior Convertible Notes due 2041

This Security is one of a duly authorized issue of Securities of the Company, designated as its 2.625% Senior Convertible Notes due 2041 (the “Securities”), all issued or to be issued under and pursuant to an Indenture dated as of May 10, 2011 (the “Indenture”), between the Company and The Bank of New York Mellon Trust Company, N.A. (the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities.

Interest. The Securities will bear Regular Interest at a rate of 2.625% per year, payable semi-annually in arrears on May 15 and November 15 of each year beginning on November 15, 2011. In addition to Regular Interest, the Securities will also bear Contingent Interest (i) commencing on May 15, 2021 during any semi-annual interest period in which the arithmetic average trading prices of the Securities for the 10 Trading Day period immediately preceding the first day of such semi-annual period is greater than or equal to a threshold that will initially be set at $1,500 per $1,000 Principal Amount of the Securities, at a rate per annum of 0.60% of such arithmetic average of the trading prices, (ii) commencing on May 15, 2021, during any semi-annual interest period in which the arithmetic average trading prices of the Securities for the 10 Trading Day period immediately preceding the first day of such semi-annual period is less than or equal to a threshold that will initially be set at $600 per $1,000 Principal Amount of the Securities, at a rate per annum of 0.25% of such arithmetic average of the trading prices and (iii) at any time that Securities are Outstanding in the event that the Company pays an extraordinary cash dividend or distribution to holders of the Common Stock that the Company’s Board of Directors designates as payable to Holders of the Securities and that will increase over time in accordance with the Indenture. Pursuant to Section 9.03 of the Indenture, in certain circumstances, the Holders shall be entitled to receive Additional Interest.

Redemption at the Option of the Company. No sinking fund is provided for the Securities. Except as provided herein, the Securities will not be redeemable. The Securities are redeemable as a whole, or from time to time in part, at any time commencing on May 21, 2021 at the option of the Company if the Last Reported Sale Price of the Common Stock has been greater than or equal to 150% of the applicable Conversion Price for at least 20 Trading Days during any 30 consecutive Trading Day period prior to the date on which the Company provides notice of redemption. The redemption price (the “Redemption Price”) for any such redemption will be equal to 100% of the Principal Amount of the Securities to be redeemed, together with accrued and unpaid Interest, if any, to, but excluding, the Redemption Date. The Company will pay the Redemption Price in cash.

Repurchase by the Company at the Option of the Holder Upon a Fundamental Change. Subject to the terms and conditions of the Indenture, the Company shall become obligated, at the option of the Holder, to repurchase the Securities if a Fundamental Change occurs at any time prior to the Stated Maturity at 100% of the Principal Amount plus accrued and unpaid Interest to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), which Fundamental Change Repurchase Price will be paid in cash.

Withdrawal of Fundamental Change Repurchase Notice. Holders have the right to withdraw, in whole or in part, any Fundamental Change Repurchase Notice by delivering to the Paying Agent a written notice of withdrawal in accordance with the provisions of the Indenture.

Payment of Redemption Price and Fundamental Change Repurchase Price. If cash or, if permitted under the Indenture, Common Stock or any combination of the foregoing, sufficient to pay the Redemption Price or Fundamental Change Repurchase Price, as the case may be, of all Securities or portions thereof to be redeemed or repurchased on a Redemption Date or on a Fundamental Change Repurchase Date, as the case may be, is deposited with the Paying Agent on the Redemption Date or the Fundamental Change Repurchase Date, as the case may be, such Securities will cease to be Outstanding and Interest will cease to accrue on such Securities (or portions thereof) immediately after such Redemption Date or Fundamental Change Repurchase Date, as the case may be, and the Holder thereof shall have no other rights as such (other than the right to receive the Redemption Price or Fundamental Change Repurchase Price, as the case may be, upon surrender of such Security).

Conversion. Subject to and in compliance with the provisions of the Indenture (including without limitation the conditions of conversion of this Security set forth in Article 8 thereof), the Holder hereof has the right, at its option, to convert the Principal Amount hereof or any portion of such principal which is $1,000 or an integral multiple thereof, into, subject to Section 8.01 of the Indenture, cash and shares of Common Stock, if any, at the Conversion Rate. The initial Conversion Rate is 25.3139 shares of Common Stock per $1,000 Principal Amount of Securities, subject to adjustment in certain events described in the Indenture. Upon conversion, the Company shall deliver, for each $1,000 principal amount of Securities being converted, cash and shares of Common Stock, if any, equal to the Settlement Amount in accordance with the Indenture. No fractional shares will be issued upon any conversion, but an adjustment and payment in cash will be made, as provided in the Indenture, in respect of any fraction of a share which would otherwise be issuable upon the surrender of any Securities for conversion. Securities in respect of which a Holder is exercising its right to require repurchase on a Fundamental Change Repurchase Date may be converted only if such Holder withdraws its election to exercise such right in accordance with the terms of the Indenture.

In the event of a deposit or withdrawal of an interest in this Security, including an exchange, transfer, repurchase or conversion of this Security in part only, the Trustee, as custodian of the Depositary, shall make an adjustment on its records to reflect such deposit or withdrawal in accordance with the rules and procedures of the Depositary.

Subject to certain limitations in the Indenture, at any time when the Company is not subject to Section 13 or 15(d) of the United States Securities Exchange Act of 1934, as amended, upon the request of a Holder of a Restricted Security, the Company will promptly furnish or cause to be furnished Rule 144A Information (as defined below) to such Holder of Restricted Securities, or to a prospective purchaser of any such security designated by any such Holder, to the extent required to permit compliance by any such Holder with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”). “Rule 144A Information” shall be such information as is specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto).

If an Event of Default shall occur and be continuing, the Principal Amount plus Interest through such date on all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in aggregate Principal Amount of the Outstanding Securities. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate Principal Amount of the Outstanding Securities, on behalf of the Holders of all the Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of any provision of or applicable to this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities, the Holders of not less than 25% in aggregate Principal Amount of the Outstanding Securities shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity satisfactory to it, the Trustee shall not have received from the Holders of a majority in Principal Amount of Outstanding Securities a direction inconsistent with such request, and the Trustee shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of the Principal Amount, Redemption Price or Fundamental Change Repurchase Price hereof on or after the respective due dates expressed herein.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the Principal Amount,

Redemption Price or Fundamental Change Repurchase Price of, and Interest on, this Security at the times, place and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in San Jose, California, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate Principal Amount, will be issued to the designated transferee or transferees.

The Securities are issuable only in registered form in denominations of $1,000 and any integral multiple of $1,000 above that amount, as provided in the Indenture and subject to certain limitations therein set forth. Securities are exchangeable for a like aggregate Principal Amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any such registration of transfer or exchange, but the Company and the Security Registrar may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and the Security Registrar and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.

This Security shall be governed by and construed in accordance with the laws of the State of New York.

All terms used in this Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture.

ASSIGNMENT FORM

If you want to assign this Security, fill in the form below and have your signature guaranteed: I or we assign and transfer this Security to:

(Print or type name, address and zip code and social security or tax ID number of assignee)

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


Date:								Signed:



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



Signature Guarantee:

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

In connection with any transfer of this Security occurring prior to the date which is the earlier of (i) the date of the declaration by the Commission of the effectiveness of a registration statement under the Securities Act, as amended (the “Securities Act”), covering resales of this Security (which effectiveness shall not have been suspended or terminated at the date of the transfer) and (ii) the first anniversary of the Issue Date set forth on the face of this Security, the undersigned confirms that it has not utilized any general solicitation or general advertising in connection with the transfer and that this Security is being transferred:

[Check One]

(1) ¨ to the Company or a Subsidiary thereof; or

(2) ¨ to a “Qualified Institutional Buyer” pursuant to and in compliance with Rule 144A under the Securities Act; or

(3) ¨ pursuant to the exemption from registration provided by Rule 144 under the Securities Act.

Unless one of the above boxes is checked, the Trustee will refuse to register any of the Securities evidenced by this certificate in the name of any Person other than the registered Holder thereof, provided that if box (3) is checked, the Company may require (and shall deliver to the Trustee and the Security Registrar), prior to registering any such transfer of the Securities, in its sole discretion, such legal opinions, certifications and other information as the Company may reasonably request to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.

If none of the foregoing boxes is checked, the Trustee or Security Registrar shall not be obligated to register this Security in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 3.09 of the Indenture shall have been satisfied.


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


Signature Guarantee:

CONVERSION NOTICE

If you want to convert this Security into Common Stock of the Company, check the box: ¨

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

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

(Insert other person’s social security or tax ID no.)

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


Date:								Signed:



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



Signature Guarantee:

Section 2.04. Form of Trustee’s Certificate of Authentication. This is one of the Securities referred to in the within-mentioned Indenture.


Dated:	The Bank of New York Mellon Trust Company, N.A., as Trustee

	By
		Authorized Signatory

ARTICLE 3

THE SECURITIES

Section 3.01. Title and Terms; Payments. (a) The aggregate Principal Amount of Securities that may be authenticated and delivered under this Indenture is limited to $700,000,000, except for Securities authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Securities pursuant to Sections 3.04, 3.06, 3.08, 6.06, 7.05 or 14.06.

(b) The Securities shall be known and designated as the “2.625% Senior Convertible Notes due 2041” of the Company. The Principal Amount shall be payable at the Stated Maturity.

(d) The Principal Amount of and Interest on Global Securities registered in the name of the Depositary or its nominee shall be paid by wire transfer in immediately available funds to the Depositary or its nominee, as applicable.

(e) The Principal Amount of Physical Securities shall be payable at the office or agency of the Company maintained for such purpose. Interest on Physical Securities will be payable (i) to Holders having an aggregate Principal Amount of $5,000,000 or less of Securities, by check mailed to such Holders and (ii) to Holders having an aggregate Principal Amount of more than $5,000,000 of Securities, either by check mailed to such Holders or, upon application by a Holder to the Security Registrar not later than the relevant Record Date for such Interest payment, by wire transfer in immediately available funds to such Holder’s account within the United States, which application shall remain in effect until the Holder notifies the Security Registrar to the contrary in writing.

Section 3.02. Denominations. The Securities shall be issuable only in registered form without coupons and in denominations of $1,000 and any integral multiple of $1,000 above that amount.

Section 3.03. Execution, Authentication, Delivery and Dating. (a) The Securities shall be executed on behalf of the Company by its Chairman of the Board of Directors, its President or one of its Vice Presidents.

(b) Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.

(c) At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities. The Company Order shall specify the amount of Securities to be authenticated, and shall further specify the amount of such Securities to be issued as a Global Security or as Physical Securities. The Trustee in accordance with such Company Order shall authenticate and deliver such Securities as in this Indenture provided and not otherwise.

(d) Each Security shall be dated the date of its authentication.

(e) No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.

Section 3.04. Temporary Securities. (a) Pending the preparation of definitive Securities, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities that are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities; provided, that any such temporary Securities shall bear the Restricted Securities Legend.

(b) If temporary Securities are issued, the Company will cause definitive Securities to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at any office or agency of the Company designated pursuant to Section 5.02, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities, the Company shall execute and the Trustee shall authenticate and deliver in

exchange therefor a like Principal Amount of Physical Securities of authorized denominations. Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as Physical Securities.

Section 3.05. Security Registrar, Paying Agent and Conversion Agent. (a) General. The Company will maintain an office or agency where Securities may be presented for registration of transfer or for exchange (the “Security Registrar”), an office or agency where the Securities may be presented for payment (the “Paying Agent”), an office or agency where the Securities may be presented for conversion (the “Conversion Agent”) and an office or agency where notices to or upon the Company with respect to the Securities and this Indenture may be served. The Company may have one or more co-registrars, one or more additional paying agents and one or more additional conversion agents. Before appointing any Security Registrar, Paying Agent or Conversion Agent that is not otherwise a party to this agreement, the Company will enter into an appropriate agency agreement with such Security Registrar, Paying Agent or Conversion Agent, as the case may be, which agency agreement will incorporate the Trust Indenture Act and implement the provisions of this Indenture that relate to such replacement or additional registrar, paying agent or conversion agent, as the case may be. The term Security Registrar includes any additional registrars. The term Paying Agent includes any additional paying agent named pursuant to this Indenture. The term Conversion Agent includes any additional conversion agent, including any named pursuant to this Indenture.

(b) Initial Designations. The Company initially appoints the Trustee as each of the Security Registrar, the Paying Agent and the Conversion Agent and initially designates the Corporate Trust Office as the office where Securities may be registered for transfer or exchange, presented for payment, or presented for conversion.

If the Company fails to maintain a Security Registrar, Paying Agent or Conversion Agent, the Trustee will act as such Security Registrar, Paying Agent or Conversion Agent and will be entitled to appropriate compensation therefor pursuant to Section 11.07 hereof. Either the Company or any of its domestically incorporated wholly owned Subsidiaries may act as the Security Registrar, the Paying Agent or the Conversion Agent; provided, however, that upon any bankruptcy or reorganization proceedings relating to the Company or any wholly-owned Subsidiary, the Trustee will serve as the Paying Agent.

(c) Removal and Resignation. The Company may remove any Security Registrar, Paying Agent or Conversion Agent by delivering written notice to such Security Registrar, Paying Agent or Conversion Agent and to the Trustee; provided, however, that no such removal will become effective unless (i) after such removal, at least one Security Registrar, Paying Agent and Conversion Agent will remain; (ii) a successor has accepted appointment as Security Registrar, Paying Agent or Conversion Agent, as the case may be, the Company and such successor have entered into an agency agreement in accordance with Section 3.05(a) hereof, and the Company has delivered written notice of such appointment and a copy of such agency agreement to the Trustee, or (iii) the Company has delivered written notice to the Trustee that the Trustee will serve as the successor Security Registrar, Paying Agent or Conversion Agent, as the case may be, in accordance with Section 5.02 hereof. In addition, the Security Registrar, Paying Agent or the Conversion Agent may resign at any time by delivering written notice to the Company and the Trustee; provided, however, that the Trustee may resign as Security Registrar, Paying Agent or Conversion Agent only if the Trustee also resigns as Trustee in accordance with Section 11.10 hereof.

Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of like tenor and Principal Amount and bearing a number not contemporaneously outstanding.

If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall

authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor and Principal Amount and bearing a number not contemporaneously outstanding.

In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable or has been called for redemption in full, the Company in its discretion may, instead of issuing a new Security, pay such Security.

Upon the issuance of any new Security under this Section 3.06, the Company may require payment by the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

Every new Security issued pursuant to this Section 3.06 in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.

The provisions of this Section 3.06 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

Section 3.07. Holder Lists. (a) The Security Registrar will keep a Security Register for the recordation of, and will record, the names and addresses of Holders, the Securities held by each Holder and the transfer, exchange and conversion of Securities (the “Security Register”). The entries in the Security Register will be conclusive, and the parties may treat each Person whose name is recorded in the Security Register pursuant to the terms hereof as a Holder hereunder for all purposes of this Indenture. The Security Register will be in written form or in any form capable of being converted into written form within a reasonably prompt period of time.

(b) The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders and will otherwise comply with Trust Indenture Act §312(a). If the Trustee is not the Security Registrar, the Company will furnish to the Trustee, promptly after each Record Date, and at such other times as the Trustee may request in writing, a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Holders, and the Company will otherwise comply with Trust Indenture Act §312(a).

Section 3.08. Transfer and Exchange.

(a) Provisions Applicable to All Transfers and Exchanges.

(i) Subject to the restrictions set forth in this Section 3.08 hereof, Physical Securities and beneficial interests in Global Securities may be transferred or exchanged from time to time as desired, and each such transfer or exchange will be noted by the Security Registrar in the Security Register.

(ii) All Securities issued upon any registration of transfer or exchange in accordance with this Indenture will be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture as the Securities surrendered upon such registration of transfer or exchange.

(iii) No service charge will be imposed on any Holder of a Physical Security or any owner of a beneficial interest in a Global Security for any exchange or registration of transfer, but each of the Company, the Trustee or the Security Registrar may require such Holder or owner of a beneficial interest to pay a sum sufficient to cover any transfer tax, assessment or other governmental charge imposed in connection with such registration of transfer or exchange.

(iv) Unless the Company specifies otherwise, none of the Company, the Trustee, the Security Registrar or any co-registrar will be required to exchange or register a transfer of any Security (i) surrendered for conversion, except to the extent that any portion of such Security has not been surrendered for conversion, or (ii) subject to a Fundamental Change Repurchase Notice validly delivered pursuant to Section 7.02 hereof, except to the extent any portion of such Security is not subject to a Fundamental Change Repurchase Notice.

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

(b) In General; Transfer and Exchange of Beneficial Interests in Global Securities. So long as the Securities are eligible for book-entry settlement with the Depositary, unless otherwise required by law, except to the extent required by Section 3.08(c) hereof:

(i) all Securities will be represented by one or more Global Securities;

(ii) every transfer and exchange of a beneficial interest in a Global Security will be effected through the Depositary in accordance with the Applicable Procedures and the provisions of this Indenture (including the restrictions on transfer set forth in Section 3.09 hereof); and

(iii) each Global Security may be transferred only as a whole and only (A) by the Depositary to a nominee of the Depositary, (B) by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or (C) by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.

(i) Notwithstanding any other provision of this Indenture, each Global Security will be exchanged for Physical Securities if the Depositary delivers notice to the Company that:

(A)

the Depositary is unwilling or unable to continue to act as Depositary; or

(B)

the Depositary is no longer registered as a clearing agency under the Exchange Act;

and, in each case, the Company promptly delivers a copy of such notice to the Trustee and the Company fails to appoint a successor Depositary within 90 days after receiving notice from the Depositary.

In each such case, each Global Security will be deemed surrendered to the Trustee for cancellation, and the Trustee will cause each Global Security to be cancelled in accordance with the Applicable Procedures, and the Company, in accordance with Section 3.03 hereof, will promptly execute, and, upon receipt of a Company Order, the Trustee will, in accordance with Section 3.03 hereof, will promptly authenticate and deliver, for each beneficial interest in each Global Security so exchanged, an aggregate principal amount of Physical Securities equal to the aggregate principal amount of such beneficial interest, registered in such names and in such authorized denominations as the Depositary specifies, and bearing any legends that such Physical Securities are required to bear under Section 3.09 hereof.

(ii) In addition, if an Event of Default has occurred and is continuing, any owner of a beneficial interest in a Global Security may exchange such beneficial interest for Physical Securities by delivering a written request to the Security Registrar.

In such case, (A) the Security Registrar will deliver notice of such request to the Company and the Trustee, which notice will identify the owner of the beneficial interest to be exchanged, the aggregate principal amount of such beneficial interest and the CUSIP of the relevant Global Security; (B) the Company will, in accordance with Section 3.03 hereof, promptly execute, and, upon receipt of a Company Order, the Trustee, in accordance with Section 3.03 hereof, will promptly authenticate and deliver, to such owner, for the beneficial interest so exchanged by such owner, Physical Securities registered in such owner’s name having an aggregate principal amount equal to the aggregate principal amount of such beneficial interest and bearing any legends that such Physical Securities are required to bear under Section 3.09 hereof; and (C) the Security Registrar, in accordance with the Applicable Procedures, will cause the principal amount of such Global Security to be decreased by the aggregate principal amount of the beneficial interest so exchanged. If all of the beneficial interests in a Global Security are so exchanged, such Global Security will be deemed surrendered to the Trustee for cancellation, and the Trustee will cause such Global Security to be cancelled in accordance with the Applicable Procedures.

(d) Transfer and Exchange of Physical Securities. If Physical Securities are issued, a Holder may:

(i) transfer a Physical Security by: (A) surrendering such Physical Security for registration of transfer to the Security Registrar, together with any endorsements or instruments of transfer required by any of the Company, the Trustee or the Security Registrar; (B) if such Physical Security is a Restricted Security, delivering any documentation that the Company, the Trustee or the Security Registrar reasonably require to ensure that such transfer complies with Section 3.09 hereof and any applicable securities laws; and (C) satisfying all other requirements for such transfer set forth in this Section 3.08 and Section 3.09 hereof. Upon the satisfaction of conditions (A), (B) and (C), the Company, in accordance with Section 3.03 hereof, will promptly execute and deliver to the Trustee, and the Trustee, upon receipt of a Company Order, will, in accordance with Section 3.03 hereof, promptly authenticate and deliver, in the name of the designated transferee or transferees, one or more new Physical Securities, of any authorized denominations, having like aggregate Principal Amount and bearing any restrictive legends required by Section 3.09 hereof.

(ii) exchange a Physical Security for other Physical Securities of any authorized denominations and aggregate Principal Amount equal to the aggregate Principal Amount of the Securities to be exchanged by surrendering such Securities, together with any endorsements or instruments of transfer required by any of the Company, the Trustee or the Security Registrar, at any office or agency maintained by the Company for such purposes pursuant to Section 5.02 hereof. Whenever a Holder surrenders Securities for exchange, the Company, in accordance with Section 3.03 hereof, will promptly execute and deliver to the Trustee, and the Trustee, upon receipt of a Company Order, will, in accordance with Section 3.03 hereof, promptly authenticate and deliver the Securities that such Holder is entitled to receive, bearing registration numbers not contemporaneously outstanding and any restrictive legends that such Physical Securities are to bear under Section 3.09 hereof.

(iii) transfer or exchange a Physical Security for a beneficial interest in a Global Security by (A) surrendering such Physical Security for registration of transfer or exchange, together with any endorsements or instruments of transfer required by any of the Company, the Trustee or the Security Registrar, at any office or agency maintained by the Company for such purposes pursuant to Section 5.02 hereof; (B) if such Physical Security is a Restricted Security, delivering any documentation the Company, the Trustee or the Security Registrar reasonably require to ensure that such transfer complies with Section 3.09 hereof and any applicable securities laws; (C) satisfying all other requirements for such transfer set forth in this Section 3.08 and Section 3.09 hereof; and (D) providing written instructions to the Trustee to make, or to direct the Security Registrar to make, an adjustment in its books and records with respect to the applicable Global Security to reflect an increase in the aggregate Principal Amount of the Securities represented by such Global Security, which instructions will contain information regarding the Depositary account to be credited with such increase. Upon the satisfaction of conditions (A), (B), (C) and

(D), the Trustee will cancel such Physical Security and cause, or direct the Security Registrar to cause, in accordance with the Applicable Procedures, the aggregate Principal Amount of Securities represented by such Global Security to be increased by the aggregate Principal Amount of such Physical Security, and will credit or cause to be credited the account of the Person specified in the instructions provided by the exchanging Holder in an amount equal to the aggregate Principal Amount of such Physical Security. If no Global Securities are then outstanding, the Company, in accordance with Section 3.03 hereof, will promptly execute and deliver to the Trustee, and the Trustee, upon receipt of a Company Order, will, in accordance with Section 3.03 hereof, authenticate, a new Global Security in the appropriate aggregate Principal Amount.

Section 3.09. Transfer Restrictions.

(a) Restricted Securities.

(i) Every Security (and all securities issued in exchange therefor or substitution thereof, except any shares of the Common Stock issued upon conversion thereof) that bears, or that is required under this Section 3.09 to bear, the Restricted Securities Legend will be deemed to be a “Restricted Security.” Each Restricted Security will be subject to the restrictions on transfer set forth in this Indenture (including in the Restricted Securities Legend) and will bear the Restricted Securities CUSIP unless such restrictions on transfer are eliminated or otherwise waived by written consent of the Company, and each Holder of a Restricted Security, by such Holder’s acceptance of such Restricted Security, will be deemed to be bound by the restrictions on transfer applicable to such Restricted Security.

(ii) Until the Resale Restriction Termination Date, any Security (or any security issued in exchange therefor or substitution thereof, except any shares of Common Stock issued upon the conversion thereof) will bear the Restricted Securities Legend unless:

(A)

such Security, since last held by the Company or an affiliate of the Company (within the meaning of Rule 144), if ever, was transferred (1) to a person other than (x) the Company or (y) an affiliate of the Company (within the meaning of Rule 144) and (2) pursuant to a registration statement that was effective under the Securities Act at the time of such transfer;

(B)

such Security was transferred (1) to a person other than (x) the Company or (y) an affiliate of the Company (within the meaning of Rule 144), and (2) pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act; or

(C)

the Company delivers written notice to the Trustee and the Registrar stating that the Restricted Securities Legend may be removed from such Security.

(iii) In addition, until the Resale Restriction Termination Date:

(A)

no transfer of any Security will be registered by the Registrar prior to the Resale Restriction Termination Date unless the transferring Holder delivers the form of assignment set forth on the Security, with the appropriate box checked, to the Trustee; and

(B)

the Registrar will not register any transfer of any Security that is a Restricted Security to a person that has been an affiliate of the Company (within the meaning of Rule 144) within the three months immediately preceding the date of such proposed transfer.

(iv) On and after the Resale Restriction Termination Date, any Security (or any security issued in exchange therefor or substitution thereof, except any shares of Common Stock issued upon the conversion thereof) will bear the Restricted Securities Legend at any time the Company reasonably determinates that, to comply with law, such Security (or such securities issued in exchange for or substitution of a Security) must bear the Restricted Securities Legend.

(b) Restricted Stock.

(i) Every share of Common Stock that bears, or that is required under this Section 3.09 to bear, the Restricted Stock Legend will be deemed to be “Restricted Stock.” Each share of Restricted Stock will be subject to the restrictions on transfer set forth in this Indenture (including in the Restricted Stock Legend) and will bear the Restricted Stock CUSIP unless such restrictions on transfer are eliminated or otherwise waived by written consent of the Company, and each Holder of Restricted Stock, by such Holder’s acceptance of Restricted Stock, will be deemed to be bound by the restrictions on transfer applicable to such Restricted Stock.

(ii) Until the Resale Restriction Termination Date, any share of Common Stock issued upon the conversion of a Security will be issued in definitive form and will bear the Restricted Stock Legend unless:

(A)

such share of Common Stock was transferred (1) to a person other than (x) the Company or (y) an affiliate of the Company (within the meaning of Rule 144) and (2) pursuant to a registration statement that was effective under the Securities Act at the time of such conversion;

(B)

such share of Common Stock was transferred (1) to a person other than (x) the Company or (y) an affiliate of the Company (within the meaning of Rule 144), and (2) pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act;

(C)

such Security, regardless of whether bearing the Restricted Securities Legend, was not, at the time of its conversion, required to bear the Restricted Securities Legend pursuant to Section 3.09(a) hereof and such Common Stock was issued to a person other than (1) the Company or (2) an affiliate of the Company; or

(D)

the Company delivers written notice to the Trustee, the Registrar and the transfer agent for the Common Stock stating that such share of Common Stock need not bear the Restricted Stock Legend.

(iii) On and after the Resale Restriction Termination Date, any share of the Common Stock will be issued in definitive form and will bear the Restricted Stock Legend at any time the Company reasonably determinates that, to comply with law, such share of Common Stock must bear the Restricted Stock Legend.

(c) As used in this Section 3.09, the term “transfer” means any sale, pledge, transfer, loan, hypothecation or other disposition whatsoever of any Restricted Security, any interest therein or any Restricted Stock.

Section 3.10. Expiration of Restrictions. (a) Physical Securities. Any Physical Security (or any security issued in exchange or substitution therefor) that has been transferred, replaced or exchanged on or after the Free Trade Date or that has been transferred pursuant to a registration statement that has been declared effective under the Securities Act may be

exchanged for a new Security or Securities of like tenor and aggregate Principal Amount that do not bear the Restricted Securities Legend required by Section 2.02 hereof. To exercise such right of exchange, the Holder of such Security must surrender such Security in accordance with the provisions of Section 3.08 hereof and deliver any additional documentation reasonably required by the Company, the Trustee or the Security Registrar in connection with such exchange.

(b) Global Securities; Resale Restriction Termination Date.

(i) If, on the Free Trade Date, or the next succeeding Business Day if the Free Trade Date is not a Business Day, any Securities are represented by a Global Security that is a Restricted Security (any such Global Security, a “Restricted Global Security”), as promptly as practicable, the Company will automatically exchange every beneficial interest in each Restricted Global Security for beneficial interests in Global Securities that are not subject to the restrictions set forth in the Restricted Securities Legend and in Section 3.09 hereof.

(ii) To effect such automatic exchange, the Company will (A) deliver to the Depositary an instruction letter for the Depositary’s mandatory exchange process at least 15 days immediately prior to the Free Trade Date and (B) deliver to each of the Trustee and the Security Registrar a duly completed Free Transferability Certificate promptly after the Free Trade Date. The first date on which both the Trustee and the Security Registrar have received the Free Transferability Certificate will be known as the “Resale Restriction Termination Date.”

(A)

Immediately upon receipt of the Free Transferability Certificate by each of the Trustee and the Security Registrar the Restricted Securities Legend will be deemed removed from each of the Global Securities specified in such Free Transferability Certificate and the Restricted Securities CUSIP will be deemed removed from each of such Global Securities and deemed replaced with the Unrestricted Securities CUSIP.

(B)

Promptly after the Resale Restriction Termination Date, the Company (or the Trustee upon instruction by the Company) will provide Bloomberg LLP with a copy of the Free Transferability Certificate and will use reasonable efforts to cause Bloomberg LLP to adjust its screen page for the Securities to indicate that the Securities are no longer Restricted Securities and are now identified by the Unrestricted Securities CUSIP.

(iii) Prior to the Company’s delivery of the Free Transferability Certificate and afterwards, the Company and the Trustee will comply with the Applicable Procedures and otherwise use reasonable efforts to cause each Global Security to be identified by the Unrestricted Securities CUSIP in the facilities of the Depositary by the date the Free Transferability Certificate is delivered to the Trustee and the Security Registrar or as promptly as possible thereafter.

(iv) Notwithstanding anything to the contrary in Sections 3.09(b)(i), (ii) or (iii) hereof, the Company will not be required to deliver the Free Transferability Certificate if it reasonably believes that removal of the Restricted Securities Legend or the changes to the CUSIP numbers for the Securities could result in or facilitate transfers of the Securities in violation of applicable law.

Section 3.11. CUSIP Numbers. The Company, in issuing the Securities, will use restricted CUSIP and ISIN numbers (if then generally in use) for such Securities until the Restricted Securities Legend is removed from such Securities pursuant to Section 3.10 hereof. After the Restricted Securities Legend is removed from such Securities pursuant to Section 3.10 hereof, the Company will use the Unrestricted Securities CUSIP number for such Securities, but only

with respect to the Securities from which the Restricted Securities Legend is so removed. The Trustee may use CUSIP and ISIN numbers in notices as a convenience to Holders; provided, however, neither the Company nor the Trustee will have any responsibility for any defect in the CUSIP or ISIN number that appears on any Security, check, advice of payment or notice, and any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Securities, and any action taken in connection with such a notice will not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee, in writing, in the event of any change in the CUSIP or ISIN numbers.

Section 3.12. Cancellation. The Company at any time may deliver Securities to the Trustee for cancellation. The Security Registrar, Conversion Agent and the Paying Agent will forward to the Trustee any Securities surrendered to them for registration of transfer, exchange, conversion, purchase, or payment. The Trustee and no one else will cancel all Securities surrendered for registration of transfer, exchange, conversion, purchase, payment or cancellation and will dispose of such Securities in its customary manner. The Company may not issue new Securities to replace Securities it has purchased, paid or delivered to the Trustee for cancellation or that any Holder has converted pursuant to Article 8 hereof.

Section 3.13. Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee, the Security Registrar and any agent of the Company, the Trustee or the Security Registrar may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of the principal of such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee, the Security Registrar nor any agent of the Company, the Trustee or the Security Registrar shall be affected by notice to the contrary.

ARTICLE 4

INTEREST

Section 4.01. Generally (a). Regular interest (“Regular Interest”) shall accrue on the Securities from May 10, 2011 at a rate of 2.625% per annum until the principal thereof is paid or made available for payment. Regular Interest shall be payable semi-annually in arrears on May 15 and November 15 of each year, commencing November 15, 2011.

(b) Interest on the Securities shall be computed (i) for any full semi-annual period for which a particular interest rate (inclusive of any Contingent Interest or Additional Interest payable with respect to the Securities) is applicable, on the basis of a 360-day year of twelve 30-day months and (ii) for any period for which a particular interest rate (inclusive of any Contingent Interest or Additional Interest payable with respect to the Securities) is applicable shorter than a full semi-annual period for which Interest is calculated, on the basis of a 30-day month and, for such periods of less than a month, the actual number of days elapsed over a 30-day month.

(c) Except as otherwise provided in this Section 4.01(c), a Holder of any Securities at the close of business on a Record Date shall be entitled to receive Interest on such Securities on the corresponding Interest Payment Date.

(i) A Holder of any Securities as of a Record Date that are converted after the close of business on such Record Date and prior to the open of business on the corresponding Interest Payment Date shall be entitled to receive Interest on the Principal Amount of such Securities, notwithstanding the conversion of such Securities prior to such Interest Payment Date. However, a Holder that surrenders any Securities for conversion between the close of business on a Record Date and the open of business on the corresponding Interest Payment Date shall be required to pay the Company an amount equal to the Interest

payable by the Company with respect to such Securities on such Interest Payment Date at the time such Holder surrenders such Securities for conversion, provided, however, that this sentence shall not apply to a Holder that converts Securities:

(A)

in respect of which the Company has given notice of redemption pursuant to Section 6.03 on a Redemption Date that is after the relevant Record Date and on or prior to the third Scheduled Trading Day after the relevant Interest Payment Date;

(B)

in respect of which the Company has specified a Fundamental Change Repurchase Date that is after the relevant Record Date and on or prior to the relevant Interest Payment Date; or

(C)

following the Record Date for the payment of Regular Interest on May 15, 2041.

Accordingly, a Holder that converts Securities under any of the circumstances described in clauses (A), (B) or (C) above will not be required to pay to the Company, at the time it surrenders Securities for conversion, an amount equal to the Interest payable by the Company with respect to such Securities on the relevant Interest Payment Date.

(ii) Notwithstanding any other provision of this Section 4.01(c), any Interest payable on a Redemption Date that falls between the close of business on a Record Date and the close of business on the corresponding Interest Payment Date shall be payable to the Holder of the Securities being redeemed as provided in Section 6.01(b) and shall not be payable to the Holder on the Record Date immediately preceding such redemption. The payment of such Interest to the Holder of the Securities being redeemed as provided in Section 6.01(b) shall be deemed to satisfy the Company’s obligations in respect of such Interest.

(iii) Notwithstanding any other provision of this Section 4.01(c), any Interest payable on a Fundamental Change Repurchase Date that falls between the close of business on a Record Date and the close of business on the corresponding Interest Payment Date shall be payable to the Holder of the Securities being repurchased as provided in Section 7.01(a) and shall not be payable to the Holder on the Record Date immediately preceding such redemption. The payment of such Interest to the Holder of the Securities being repurchased as provided in Section 7.01(a) shall be deemed to satisfy the Company’s obligations in respect of such Interest.

Section 4.02. Contingent Interest.

(a) Contingent interest on the Securities (“Contingent Interest”) shall accrue and the Company shall pay such Contingent Interest to the Holders as follows:

(i) beginning with the six-month Interest payment period commencing May 15, 2021;

(A)

during any six-month Interest payment period with respect to which the arithmetic average of the Trading Prices for the 10 consecutive Trading Days immediately preceding the first day of such six-month Interest payment period is greater than or equal to the Upside Trigger, in which case the Contingent Interest payable on each $1,000 Principal Amount for such six-month Interest payment period shall be equal to 0.60% per annum of such average of the Trading Prices;

(B)

payment period is less than or equal to the Downside Trigger, in which case the Contingent Interest payable on each $1,000 Principal Amount for such six-month Interest payment period shall be equal to 0.25% per annum of such average of the Trading Prices; and

(ii) at any time Securities are Outstanding, upon the declaration by the Company’s Board of Directors of an extraordinary cash dividend or distribution to all or substantially all holders of the Common Stock that the Company’s Board of Directors designates as payable with respect to the Securities (an “Extraordinary Dividend”), in which case, notwithstanding Section 4.04 (A), Contingent Interest shall be payable on the same date as, and in an amount equal to, the dividend or distribution that a Holder would have received had such Holder converted its Securities immediately prior to the record date for the payment of the corresponding dividend or distribution to holders of the Common Stock and (B) the record date for such Interest shall be the same as the record date for the payment of the Extraordinary Dividend.

(b) The Company shall have no obligation to determine the Trading Price of the Securities or to request the Bid Solicitation Agent to determine the Trading Price unless a Holder provides the Company with reasonable evidence that the Trading Price is greater than or equal to the Upside Trigger or is less than or equal to the Downside Trigger, at which time the Company shall instruct the Bid Solicitation Agent to determine the Trading Price of the Securities beginning on the next Trading Day and on each successive Trading Day until the Trading Price of the Securities is less than the Upside Trigger or is greater than the Downside Trigger, as applicable. Any such determination shall be conclusive absent manifest error, except as provided herein.

Section 4.03. Bid Solicitation Agent’s Responsibilities in Respect of Contingent Interest. The Bid Solicitation Agent’s sole responsibility pursuant to Section 4.02 shall be to obtain the Trading Price for each of the 10 Trading Days immediately preceding the first day of the applicable six-month Interest payment period and to provide such information to the Company. The Company shall determine whether Holders are entitled to receive Contingent Interest, and if so, provide written notice to the Bid Solicitation Agent and issue a press release as required by Section 4.05. Notwithstanding any term contained in this Indenture or any other document to the contrary, the Bid Solicitation Agent shall have no responsibilities, duties or obligations for or with respect to (i) determining whether the Company must pay Contingent Interest or (ii) determining the amount of Contingent Interest, if any, payable by the Company.

Section 4.04. Payment of Contingent Interest. Subject to Section 4.01 hereof, Contingent Interest for any six-month Interest payment period shall be paid on the applicable Interest Payment Date to the Holder in whose name any Security is registered on the Security Register at the corresponding Record Date. Contingent Interest due under this Article 4 shall be treated for all purposes of this Indenture like any other Interest accruing on the Securities.

Section 4.05. Contingent Interest Notification. Subject to Section 4.02(b), by the third Business Day of a six-month Interest payment period for which Contingent Interest specified in Section 4.02(a)(i) will be paid, the Company will disseminate a press release through Reuters Economic Services and Bloomberg Business News stating that Contingent Interest will be paid on the Securities and identifying such six-month Interest payment period as the six- month Interest payment period for which such Contingent Interest will be paid. By the third Business Day following the designation by the Company’s Board of Directors of an extraordinary cash dividend or distribution as an Extraordinary Dividend pursuant to Section 4.02(a)(ii), the Company will disseminate a press release through Reuters Economic Services and Bloomberg Business News stating that Contingent Interest will be paid on the Securities and identifying the Record Date for the payment of such Contingent Interest and the amount of such extraordinary cash dividend or distribution payable with respect to each share of the Common Stock.

ARTICLE 5

COVENANTS

Section 5.01. Payments. (a) The Company shall duly and punctually make all payments in respect of the Securities in accordance with the terms of the Securities and this Indenture.

(b) Any payments made or due pursuant to this Indenture shall be considered paid on the applicable date due if by 10:00 a.m., New York City time, on such date the Paying Agent holds, in accordance with this Indenture, cash sufficient to pay all such amounts then due. Payment of the principal of and Interest on the Securities shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

Section 5.02. Maintenance of Office or Agency. (a) The Company shall maintain an office or agency where Securities may be presented or surrendered for payment, where Securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served, which shall initially be the applicable Corporate Trust Office of the Trustee. The Company shall 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 of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

(b) The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, 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 shall 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.

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 11.10, a Trustee, so that there shall at all times be a Trustee hereunder.

Section 5.04. Money for Security Payments to be Held in Trust. (a) If the Company shall at any time act as its own Paying Agent, it shall, on or before each due date of any payment in respect of any of the Securities, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to make the payment so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and shall promptly notify the Trustee of its action or failure so to act.

(b) Whenever the Company shall have one or more Paying Agents, it will, prior to 10:00 a.m., New York City time, on each due date of any payment in respect of any Securities, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

(c) The Company shall cause each Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 5.04, that such Paying Agent will (i) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the continuance of any default by the Company (or any other

obligor upon the Securities) in the making of any payment in respect of the Securities, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent as such.

(d) The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

(e) Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the making of payments in respect of any Security and remaining unclaimed for two years after such payment has become due shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security 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, shall at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining shall be repaid to the Company. In the absence of a written request from the Company to return funds remaining unclaimed for two years after such payment has become due to the Company, the Trustee shall from time to time deliver all unclaimed payments to or as directed by applicable escheat authorities, as determined by the Trustee in its sole discretion, in accordance with the customary practices and procedures of the Trustee. Any such unclaimed funds held by the Trustee pursuant to this Section 5.04 shall be held uninvested and without any liability for Interest.

Section 5.05. Statement by Officers as to Default. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers’ Certificate, stating whether or not to the knowledge of the signers thereof the Company is in Default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in Default, specifying all such Defaults and the nature and status thereof of which they may have knowledge.

Section 5.06. Existence. Subject to Article 10, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders.

Section 5.07. Rule 144A Information Requirement. Within the period prior to the expiration of the holding period applicable to sales of Securities or any Common Stock issuable on conversion thereof under Rule 144 under the Securities Act (or any successor provision), the Company covenants and agrees that it shall, during any period in which it is not subject to Section 13 or 15(d) under the Exchange Act, make available to any Holder or beneficial Holder of such Securities or any such Common Stock, in each case which continue to be Restricted Securities, in connection with any sale thereof and any prospective purchasers of Securities or such Common Stock from such Holder or beneficial holder, the information required pursuant to Rule 144A(d)(4) under the Securities Act upon the request of any Holder or beneficial holder of the Securities or such Common Stock and it will take such further action as any Holder or beneficial holder of such Securities or such Common Stock may reasonably request, all to the extent required from time to time to enable such Holder or beneficial holder to sell its Securities or Common Stock without registration under the Securities Act

within the limitation of the exemption provided by Rule 144A. Upon the request of any Holder or any beneficial holder of the Securities or such Common Stock, the Company will deliver to such Holder a written statement as to whether it has complied with such requirements.

Section 5.08. Book-Entry System. If the Securities cease to trade in the Depositary’s book-entry settlement system, the Company covenants and agrees that it shall use reasonable efforts to make such other book-entry arrangements that it determines are reasonable for the Securities.

Section 5.09. Additional Interest. If at any time Additional Interest becomes payable by the Company pursuant to Section 9.03, the Company shall promptly deliver to the Trustee an Officers’ Certificate to that effect and stating (1) the amount of such Additional Interest that is payable and (2) the date on which such Additional Interest is payable. Additional Interest payable in accordance with Section 9.03 shall be payable in arrears on each Interest Payment Date following accrual in the same manner as Regular Interest on the Securities. Unless and until a Responsible Officer of the Trustee receives such Officers’ Certificate, the Trustee may assume without inquiry that no Additional Interest is payable. If the Company has paid Additional Interest directly to the Persons entitled to such Additional Interest, the Company shall deliver to the Trustee a certificate setting forth the particulars of such payment.

Section 5.10. Commission Filings and Reports. The Company covenants to comply with Section 314(a) of the Trust Indenture Act as it relates to reports, information and documents that the Company may be required to file with the Trustee pursuant to such Section 314(a) and with the Commission pursuant to Section 13 or 15(d) of the Exchange Act or otherwise by the Exchange Act, the Trust Indenture Act or other rules and regulations of the Commission and to file such reports, information and documents with the Trustee within 45 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); provided that in each case the delivery of materials to the Trustee by electronic means or filing pursuant to the Commission’s “EDGAR” system (or any successor electronic filing system) shall be deemed to constitute “filing” with the Trustee for purposes of this Section 5.10. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

Section 5.11. Stay, Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Company from paying all or any portion of the Principal Amount of or Interest on the Securities as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

Section 5.12. Information for IRS Filings. The Company shall provide to the Trustee on a timely basis such information as the Trustee requires to enable the Trustee to prepare and file any form required to be submitted by the Company to the Internal Revenue Service and the Holders of the Securities.

Section 5.13. Further Instruments and Acts. Upon request of the Trustee or as necessary, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.

Section 5.14. Tax Treatment of the Securities. The Company agrees, and by acceptance of a beneficial ownership interest in the Securities each Holder will be deemed to have agreed, for United States federal income tax purposes, (a) to treat the Securities as indebtedness of the Company subject to United States Treasury regulations section 1.1275-4 (the “Contingent Debt Regulations”) and, for purposes of the Contingent Debt Regulations, to treat the fair market value of any Common Stock beneficially received by a Holder upon any conversion of the Securities pursuant to Section 8.02 as a contingent payment, (b) to be bound by the Company’s determination of the “comparable yield” and “projected payment schedule,” within the meaning of the Contingent Debt Regulations, with respect to the Securities and (c) to use such “comparable yield” and “projected payment schedule” in determining Interest accruals with respect to such Holder’s Securities and in determining adjustments thereto. A Holder may obtain the Issue Date, yield to maturity, comparable yield and the projected payment schedule by submitting a written request for such information to: Novellus Systems, Inc., 4000 North First Street, San Jose, CA 95134. Attention: Corporate Treasurer.

ARTICLE 6

REDEMPTION

Section 6.01. Right to Redeem; Notices to Trustee. (a) The Securities may be redeemed in whole or in part at the option of the Company:

(i) on or after May 21, 2021, if the Last Reported Sale Price of the Common Stock has been greater than or equal to 150% of the applicable Conversion Price for at least 20 Trading Days during any 30 consecutive Trading Day period prior to the date on which the Company provides notice of redemption.

(ii) The redemption price at which the Securities are redeemable (the “Redemption Price”) shall be payable in cash and shall be equal to 100% of the Principal Amount of Securities to be redeemed, together with accrued and unpaid Interest, if any, to, but excluding, the Redemption Date provided, however, that if Securities are redeemed on any Interest Payment Date, the interest payable in respect of such Interest Payment Date shall be payable to the Holders of record as of the corresponding Record Date.

(b) The Company may not redeem any Securities unless all accrued and unpaid Interest thereon has been or is simultaneously paid for all semi-annual periods or portions thereof terminating on or prior to the applicable Redemption Date. The Company may not redeem any Securities if the Principal Amount of the Securities has been accelerated and such acceleration has not been rescinded on or prior to the applicable Redemption Date.

Section 6.02. Selection of Securities to be Redeemed. (a) If less than all the Securities are to be redeemed, the Trustee shall select the Securities to be redeemed pro rata, or by lot, or by any other method the Trustee considers fair and appropriate (so long as such method is not prohibited by the rules of The NASDAQ Global Select Market or any stock exchange on which the Securities are then listed, as applicable). The Trustee shall make the selection within 7 days from its receipt of the notice from the Company delivered pursuant to Section 6.03 from Outstanding Securities not previously called for redemption.

(b) Securities and portions of them the Trustee selects shall be in Principal Amounts of $1,000 or integral multiples of $1,000. Provisions of this Indenture that apply to Securities called for redemption in whole also apply to Securities called for redemption in part. The Trustee shall notify the Company promptly of the Securities or portions of Securities to be redeemed.

(c) If any Security selected for partial redemption is converted pursuant to Section 8.02 in part before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have been converted during a selection of Securities to be redeemed may be treated by the Trustee as Outstanding for the purpose of such selection.

Section 6.03. Notice of Redemption. At least 30 Scheduled Trading Days but not more than 50 Scheduled Trading Days before the applicable Redemption Date, the Company shall deliver notice of any redemption by first-class mail, postage prepaid, to the Trustee, the Paying Agent and each Holder (or with respect to DTC, by electronic transmission) and disseminate a press release through Reuters Economic Services and Bloomberg Business News.

(a) The notice shall specify the Securities to be redeemed and shall state:

(i) the Redemption Date;

(ii) the Redemption Price;

(iii) the Conversion Price;

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

(v) that Securities called for redemption may be converted at any time before the close of business on the Business Day immediately preceding the Redemption Date;

(vi) that Holders who want to convert Securities must satisfy the requirements set forth therein and in this Indenture;

(vii) that Securities called for redemption must be surrendered to the Paying Agent for cancellation to collect the Redemption Price;

(viii) if fewer than all the Outstanding Securities are to be redeemed, the certificate numbers (if such Securities are held other than in global form) and Principal Amounts of the particular Securities to be redeemed;

(ix) that, unless the Company defaults in making payment of such Redemption Price, Interest will cease to accrue on and after the Redemption Date; and

(x) the CUSIP number of the Securities.

At the Company’s written request and provision of notice information delivered at least 30 Scheduled Trading Days prior to the date such notice is to be given (unless a shorter time period shall be acceptable to the Trustee), the Trustee shall give the notice of redemption to each Holder to be redeemed in the Company’s name and at the Company’s expense.

Section 6.04. Effect of Notice of Redemption. Once notice of redemption is given, Securities called for redemption will become due and payable on the Redemption Date and at the Redemption Price stated in the notice except for Securities that are converted in

accordance with the terms of this Indenture. Upon surrender to the Paying Agent, such Securities shall be paid at the Redemption Price stated in the notice.

Section 6.05. Deposit of Redemption Price. Prior to 10:00 a.m. (New York City time) on a Redemption Date, the Company shall deposit with the Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of them is the Paying Agent, shall segregate and hold in trust) money sufficient to pay the Redemption Price of all Securities to be redeemed on that date other than Securities or portions of Securities called for redemption which on or prior thereto have been delivered by the Company to the Trustee for cancellation or have been converted. The Paying Agent shall as promptly as practicable return to the Company any money not required for that purpose because of conversion of Securities pursuant to Article 8. If such money is then held by the Company in trust and is not required for such purpose it shall be discharged from such trust.

Section 6.06. Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Company shall execute and the Trustee shall authenticate and deliver to the Holder a new Security in an authorized denomination equal in principal amount to the unredeemed portion of the Security surrendered. The Company shall not be required to (i) register the transfer of, or exchange any Securities during the period beginning at the open of business on the 15^th day immediately preceding the date on which the Company mails notice of such redemption and ending at the close of business on the date on which the Company mails such notice or (ii) after the Company mails notice of such redemption, register the transfer of, or exchange any, Securities selected for such redemption, except to the extent that the Company must register the transfer or exchange of the unredeemed portion of any Security being redeemed in part.

ARTICLE 7

FUNDAMENTAL CHANGES AND REPURCHASES THEREUPON

Section 7.01. Repurchase at Option of Holders Upon a Fundamental Change. (a) Generally. If a Fundamental Change occurs at any time, then each Holder shall have the right, at such Holder’s option, to require the Company to repurchase all of such Holder’s Securities or any portion in a Principal Amount that is equal to $1,000 or an integral multiple of $1,000 in excess thereof, on a date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 Business Days and not more than 35 Business Days after the date on which the Company provides the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the Principal Amount of the Securities to be repurchased, together with accrued and unpaid Interest thereon, if any, to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”). The Securities to be repurchased pursuant to this Section 7.01 shall be paid for in cash

Repurchases of Securities under this Section 7.01 shall be made, at the option of the Holder thereof, upon delivery by the Holder, to the Trustee (or other Paying Agent appointed by the Company) on or before the Business Day immediately preceding the Fundamental Change Repurchase Date of a duly completed written notice in the form attached hereto as Exhibit A (the “Fundamental Change Repurchase Notice”) and, if the Securities are in certificated form, the form entitled “Form of Fundamental Change Repurchase Notice” on the reverse of the Securities; and delivery or book-entry transfer of the Securities (together with all necessary endorsements) at the applicable Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 7.01 only if the Securities so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice.

The Fundamental Change Repurchase Notice shall state:

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

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

(iii) that the Securities are to be repurchased by the Company pursuant to the applicable provisions of the Securities and the Indenture.

Any purchase by the Company contemplated pursuant to the provisions of this Section 7.01 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Fundamental Change Repurchase Date and the time of the book- entry transfer or delivery of the Securities.

Notwithstanding anything herein to the contrary, any Holder delivering to the Trustee (or other Paying Agent appointed by the Company) the Fundamental Change Repurchase Notice contemplated by this Section 7.01 shall have the right to withdraw such Fundamental Change Repurchase Notice (in whole or in part) at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Trustee (or other Paying Agent appointed by the Company) in accordance with Section 7.03 below.

The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.

(b) Fundamental Change Company Notice. On or before the 20th Business Day immediately following the effective date of a Fundamental Change, the Company shall provide to all Holders of record of the Securities and the Trustee and Paying Agent a notice (the “Fundamental Change Company Notice”) of the occurrence of such Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information included therein once in a newspaper of general circulation in the City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at such time.

Each Fundamental Change Company Notice shall specify:

(i) the events causing such Fundamental Change;

(ii) the date of such Fundamental Change;

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

(iv) the Fundamental Change Repurchase Price;

(v) the Fundamental Change Repurchase Date;

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

(vii) if applicable, the applicable Conversion Rate and any adjustments that will be made to the applicable Conversion Rate in connection with such Fundamental Change;

(viii) if applicable, that the Securities with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only to the extent that portions of such Securities are not subject to such Fundamental Change Repurchase Notice or if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with Section 7.03; and

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

No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Securities pursuant to this Section 7.01.

(c) No Payment During Events of Default. There shall be no repurchase of any Securities pursuant to this Section 7.01 if there has occurred (prior to, on or after, as the case may be, the giving, by the Holders of such Securities, of the required Fundamental Change Repurchase Notice) and is continuing an Event of Default (other than a default that is cured by the payment of the Fundamental Change Repurchase Price with respect to such Securities). The Paying Agent will promptly return to the respective Holders thereof any Securities (i) with respect to which a Fundamental Change Repurchase Notice has been withdrawn in compliance with this Indenture, or (ii) held by it during the continuance of an Event of Default (other than a default that is cured by the payment of the Fundamental Change Repurchase Price with respect to such Securities) in which case, upon such return, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.

Section 7.02. Effect of Fundamental Change Repurchase Notice. Upon receipt by the Paying Agent of the Fundamental Change Repurchase Notice specified in Section 7.01(a), the Holder of the Security in respect of which such Fundamental Change Repurchase Notice was given shall (unless such Fundamental Change Repurchase Notice is withdrawn as specified in Section 7.03) thereafter be entitled to receive solely the Fundamental Change Repurchase Price with respect to such Security. Such Fundamental Change Repurchase Price shall be paid to such Holder, subject to receipt of funds by the Paying Agent, promptly following the later of (x) the Fundamental Change Repurchase Date with respect to such Security (provided the conditions in Section 7.01(a) have been satisfied) and (y) the time of delivery of such Security to the Paying Agent by the Holder thereof in the manner required by the procedures specified in the Fundamental Change Company Notice.

Section 7.03. Withdrawal of Fundamental Change Repurchase Notice. (a) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Company Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:

(i) the Principal Amount of the Securities with respect to which such notice of withdrawal is being submitted;

(ii) if Physical Securities are to be withdrawn, the certificate numbers of such Physical Securities; and

(iii) the principal amount, if any, of such Securities that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;

provided, however, that if the Securities are not in certificated form, the notice must comply with appropriate procedures of the Depositary.

Section 7.04. Deposit of Fundamental Change Repurchase Price. Prior to 10:00 a.m. (local time in the City of New York) on the Fundamental Change Repurchase Date, the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided herein) an amount of money (in immediately available funds if deposited on such Business Day), sufficient to pay the

Fundamental Change Repurchase Price, of all the Securities or portions thereof that are to be repurchased as of the Fundamental Change Repurchase Date. The Company shall promptly notify the Trustee in writing of the amount of any deposits of cash made pursuant to this Section 7.04. If the Paying Agent holds cash, sufficient to pay the Fundamental Change Repurchase Price of any Security for which a Fundamental Change Repurchase Notice has been tendered and not withdrawn in accordance with this Indenture as of the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, then immediately following the Fundamental Change Repurchase Date, (a) such Security will cease to be Outstanding and Interest will cease to accrue thereon (whether or not book-entry transfer of the Securities is made or whether or not the Securities are delivered to the Paying Agent) and (b) all other rights of the Holder in respect thereof will terminate (other than the right to receive the Fundamental Change Repurchase Price and previously accrued and unpaid Interest upon delivery or transfer of such Security).

Section 7.05. Securities Repurchased in Whole or in Part. Any Security that is to be repurchased, whether in whole or in part, shall be surrendered at the office of the Paying Agent (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder in aggregate Principal Amount equal to, and in exchange for, the portion of the Principal Amount of the Security so surrendered which is not repurchased.

Section 7.06. Covenant to Comply with Securities Laws Upon Repurchase of Securities. In connection with any offer to repurchase Securities under Section 7.01 (provided that such offer or repurchase constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as used herein, includes any successor provision thereto) under the Exchange Act at the time of such offer or repurchase), the Company shall (i) comply with Rule 13e-4 and Rule 14e-1 under the Exchange Act, (ii) file the related Schedule TO (or any successor schedule, form or report) under the Exchange Act, and (iii) otherwise comply with all Federal and state securities laws so as to permit the rights and obligations under Section 7.01 to be exercised in the time and in the manner specified in Section 7.01.

Section 7.07. Repayment to the Company. The Trustee and the Paying Agent shall return to the Company any cash that remains unclaimed held by them for the payment of the Fundamental Change Repurchase Price; provided that to the extent that the aggregate amount of cash deposited by the Company pursuant to Section 7.04 exceeds the aggregate Fundamental Change Repurchase Price of the Securities or portions thereof which the Company is obligated to repurchase as of the Fundamental Change Repurchase Date, then as soon as practicable following the Fundamental Change Repurchase Date, the Trustee or the Paying Agent, as the case may be, shall return any such excess to the Company upon its written request therefor.

ARTICLE 8

CONVERSION

Section 8.01. Conversion Obligation. (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, at any time following the Issue Date of the Securities hereunder through the close of business on the third Scheduled Trading Day immediately prior to the Stated Maturity to convert the Principal Amount of any such Securities, or any portion of such Principal Amount which is $1,000 or an integral multiple thereof at the rate per $1,000 Principal Amount of such Security (the “Conversion Rate”) then in effect, (x) on or after February 15, 2041, without regard to the conditions described in clauses (i) through (v) below and (y) prior to February 15, 2041, only upon the satisfaction of any of the following conditions:

(i) A Holder may surrender all or a portion of its Securities for conversion during any fiscal quarter (and only during such fiscal quarter) commencing after September 24, 2011 if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the immediately preceding fiscal quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day.

(ii) A Holder may surrender all or a portion of its Securities for conversion during the five Business Day period after any five consecutive Trading Day period (the “Measurement Period”) in which, for each Trading Day of such Measurement Period, the Trading Price per $1,000 principal amount of Securities, as determined following a request by a Holder in accordance with the procedures set forth in this Section 8.01(a)(ii), was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the applicable Conversion Rate on such Trading Day (“Trading Price Condition”). For purposes of this Section 8.01(a) (ii), if for any Trading Day, the Bid Solicitation Agent cannot reasonably obtain at least one bid for $5,000,000 Principal Amount of Securities from an independent nationally recognized securities dealer as required by the definition of Trading Price, then the Trading Price for such Trading Day will be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the applicable Conversion Rate on such Trading Day. If the Company does not instruct the Bid Solicitation Agent to obtain bids when required, the trading price will be deemed to be less than 98% of the product of the Last Reported Sale Price on each Trading Day that the Company fails to do so. In connection with any conversion in accordance with this Section 8.01(a)(ii), the Company shall have no obligation to determine the Trading Price of the Securities unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Securities at such time would be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate on such Trading Day and such Holder requests that the Company require the Bid Solicitation Agent to determine the Trading Price. Promptly after receiving such evidence, the Company shall instruct the Bid Solicitation Agent to determine the Trading Price of the Securities beginning on the next Trading Day and on each successive Trading Day until the Trading Price on a Trading Day is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the applicable Conversion Rate on such Trading Day. If and when the Trading for each day of the Measurement Period is less than 98% of the product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate, the Company will notify the Holders and the Trustee. At anytime after the Trading Price Condition is met, the Company will notify the Holders on the first Trading Day on which the Trading Price per $1,000 Principal Amount of Securities is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate for such Trading Day.

(iii) A Holder may surrender its Securities for conversion if the Company calls such Securities for redemption as provided in Article 6, until the close of business on the third Scheduled Trading Day immediately preceding the applicable Redemption Date, even if such Securities are not otherwise convertible at such time, after which time the Holders’ right to convert their Securities pursuant to this Section 8.01 will expire unless the Company defaults in the payment of the Redemption Price.

(iv) In the event that the Company elects to:

(A)

issue to all or substantially all holders of Common Stock rights, options or warrants convertible into or exchangeable or exercisable for Common Stock, for a period expiring not more than 60 calendar days after the date of such issuance, at a price less than the average of the Last Reported Sale Prices of a share of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the announcement of such issuance; or

(B)

distribute to all or substantially all holders of Common Stock assets, debt securities or other rights to purchase securities of the Company, which distribution has a per share value, as reasonably determined by

the Company’s Board of Directors in good faith, that exceeds 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the date of announcement of such distribution,

then, in each case, the Company shall notify the Holders, in the manner provided in Section 1.06, at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution. Once the Company has given such notice, Holders may surrender Securities for conversion at any time until the earlier of (i) 5:00 p.m., New York City time, on the Business Day immediately preceding the applicable Ex-Dividend Date or (ii) the Company’s announcement that such issuance or distribution will not take place, even if the Securities are not otherwise convertible at such time.

(v) If (x) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs, or (y) the Company is a party to (a) a consolidation, merger, or binding share exchange pursuant to which the Common Stock would be converted into cash, securities or other assets, or (b) a transfer or lease of all or substantially all of the Company’s consolidated assets (each, a “Corporate Event”), then the Securities may be surrendered for conversion at any time from and after the later of (i) the date that is 30 Scheduled Trading Days immediately prior to the anticipated effective date of such Corporate Event and (ii) the date on which the Company delivers to the Holders notice of such Corporate Event until the earlier of (a) 35 Business Days after the actual effective date of such Corporate Event (or, if such Corporate Event constitutes a Fundamental Change, the related Fundamental Change Repurchase Date) and (b) the date the Company announces such Corporate Event will not take place. The Company will notify the Holders, in the manner provided in Section 1.06, and the Trustee of a Corporate Event and the anticipated effective date for such Corporate Event in the manner provided in Section 1.06 as promptly as practicable following the date on which the Company publicly announces such Corporate Event, but in no event later than the 30^th Scheduled Trading Day immediately preceding the anticipated effective date for such Corporate Event, or, if the Company does not have knowledge of such Corporate Event or such anticipated effective date at such time, on the third Business Day immediately following the date on which the Company receives notice, or otherwise becomes aware, of such Corporate Event and such anticipated effective date, but in no event later than the actual effective date for such Corporate Event.

The initial Conversion Rate (subject to adjustment as provided in this Indenture) is 25.3139 shares of Common Stock per $1,000 Principal Amount.

Section 8.02. Conversion Procedure (a). Upon conversion of any Security, subject to this Section 8.02 and Sections 8.01 and 8.08, the Company will deliver to Holders in respect of each $1,000 Principal Amount of Securities tendered for conversion a settlement amount equal to the sum of the Daily Settlement Amounts for each of the 25 Trading Days during the Observation Period applicable to such Securities (the “Settlement Amount”).

The “Daily Settlement Amount” for each of the 25 Trading Days during an Observation Period means:

(i) an amount of cash equal to the lesser of (x) $40 and (y) the Daily Conversion Value for such Trading Day; and

(ii) to the extent the Daily Conversion Value exceeds $40, a number of shares of Common Stock equal to (x) the difference between the Daily Conversion Value for such Trading Day and $40, divided by (y) the Volume-Weighted Average Price for such Trading Day (the “Daily Share Amount”).

The “Daily Conversion Value” for each of the 25 consecutive Trading Days during an Observation Period means 4% of the product of (i) the applicable Conversion Rate on such Trading Day and (ii) the Volume-Weighted Average Price on such Trading Day.

(b) In the event that the Daily Share Amount for any Trading Day during the Observation Period exceeds the Daily Share Cap, the Company will deliver cash in lieu of such excess shares based on the Volume-Weighted Average Price of the Common Stock on such Trading Day, unless the Company has received shareholder approval as required by The NASDAQ Global Select Market for issuance of such excess shares at the time of conversion.

(c) For purposes of this Section 8.02, and notwithstanding the definition contained in Section 1.01, the term “Trading Day” shall mean a day during which (A) there is no Market Disruption Event and (B) trading in the Common Stock generally occurs on The NASDAQ Global Select Market or, if the Common Stock is not then listed on The NASDAQ Global Select Market, on the other principal U.S. national or regional securities exchange on which the Common Stock is 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 Volume-Weighted Average Price must be determined for purposes of this Section 8.02) is not so listed or traded, then for purposes of this Section 8.02, “Trading Day” shall mean a Business Day.

(d) Before any Holder shall be entitled to convert a Security as set forth above, such Holder shall (1) in the case of the conversion of the beneficial interest of a Global Security, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to Interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 8.02(k) and, if required pursuant to Section 8.02(h), pay all stamp, transfer or similar taxes or duties, if any, in connection with such conversion and (2) in the case of a Security issued in certificated form, (A) complete and manually sign and deliver an irrevocable written notice to the Conversion Agent in the form on the reverse of such certificated Security (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and shall state in writing therein the principal amount of Securities to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock, if any, to be delivered upon settlement of the Company’s conversion obligation to be registered, (B) surrender such Securities, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (C) if required pursuant to Section 8.02(h), pay all stamp, transfer or similar taxes or duties, if any, in connection with such conversion, and (D) if required, pay funds equal to Interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 8.02(k). No Notice of Conversion with respect to any Securities may be tendered by a Holder thereof if such Holder has also tendered a Fundamental Change Repurchase Notice and not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 7.03, except to the extent that a portion of such Security is not subject to such Fundamental Change Repurchase Notice.

If more than one Security shall be surrendered for conversion at one time by the same Holder, the Company’s conversion obligation with respect to such Securities, if any, that shall be payable upon conversion shall be computed on the basis of the aggregate Principal Amount of the Securities (or specified portions thereof to the extent permitted thereby) so surrendered.

(e) A Security shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in clause (d); provided, however, that if any shares of Common Stock are issuable upon the conversion of such Security, the Person in whose name such shares of Common Stock are issuable will become the holder of record of such shares as of the close of business on the last Trading Day of the Observation Period applicable to such Security.

(f) Payment of the amount of cash and number of shares of Common Stock, if any, pursuant to Section 8.02(a) in satisfaction of the Company’s conversion obligation shall be made by the Company to the Holder that converts a Security in no event later than the third Business Day immediately following the last Trading Day of the Observation Period applicable to such Security. Notwithstanding Section 8.02(a), the Company shall deliver cash in lieu of any fractional share of Common Stock issuable as part of the Daily Settlement Amount for any Trading Day, which amount of cash will equal the product of (i) such fractional share and (ii) the daily Volume-Weighted Average Price for such Trading Day, provided that record ownership shall be determined as set forth in Section 8.02(e) above.

(g) In case any Security shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Security so surrendered, without charge to such Holder, a new Security or Securities in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Securities.

(h) If a Holder submits a Security for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon the conversion, unless the tax is due because the Holder requests any shares to be issued in a name other than the Holder’s name, in which case the Holder will pay such tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax which will be due because the shares are to be issued in a name other than the Holder’s name. Nothing herein shall preclude any tax withholding required by law or regulations.

(i) Except as provided in Section 8.03, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Security as provided in this Article 8.

(j) Upon conversion of an interest in a Global Security, the Trustee shall make a notation on such Global Security as to the reduction in the Principal Amount represented thereby. The Company shall notify the Trustee in writing of any conversion of any Security effected through any Conversion Agent other than the Trustee.

(k) Upon conversion, a Holder will not receive any separate cash payment for accrued and unpaid Interest except as set forth below. The Company’s settlement of the conversion obligation as described above shall be deemed to satisfy its obligation to pay the Principal Amount of the Security and accrued and unpaid Interest to, but not including, the Conversion Date. As a result, accrued and unpaid Interest to, but not including, the Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the preceding sentence, payments in respect of accrued and unpaid Interest on Securities converted after the close of business on a Record Date and prior to the open of business on the related Interest Payment Date shall be governed by the provisions of Section 4.01 hereof. Except as described above, no payment or adjustment will be made for accrued Interest on converted Securities.

Section 8.03. Adjustment of Conversion Rate The Conversion Rate shall be adjusted from time to time by the Company as follows, except that the Conversion Rate shall not be adjusted for any Holder of the Securities that participates, at the same time as holders of Common Stock and as a result of holding the Securities, in any of the transactions described in this Section 8.03 without having to convert their Securities and as if it held a number of shares of Common Stock equal to the product of (i) the aggregate principal amount of Securities it holds (expressed in thousand) and (ii) the applicable Conversion Rate on the relevant Ex-Dividend Date, effective date or expiration date for such transaction:

(a) If the Company issues solely shares of Common Stock as a dividend or distribution to all or substantially all Holders of Common Stock, or shall effect a share split or a share combination, the Conversion Rate shall be adjusted based on the following formula:


CR₁= CR₀ ×		OS₁
		OS₀


where

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

	CR₁ =	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or the effective date;


		OS₀ =		the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or effective date; and

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

Any adjustment made under this Section 8.03(a) shall become effective immediately after the open of business on the Ex-Dividend date for such dividend or distribution, or immediately after the open of business on the effective date for such share split or share combination. If any dividend or distribution of the type described in this Section 8.03(a) is declared but not so paid or made, the Conversion Rate shall immediately be readjusted, effective as of the date the Company’s Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect had such dividend or distribution not been declared or announced.

(b) If the Company issues to all or substantially all holders of Common Stock rights, options or warrants entitling them (for a period expiring within 60 calendar days after the 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 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:


CR₁= CR₀ ×		OS₀ + X
		OS₀ + Y


where

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

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

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

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

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

Any increase made under this Section 8.03(b) will be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. To the extent such rights, options or warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend date for such issuance had not occurred.

For purposes of this Section 8.03(b), in determining whether any rights, options or warrants entitle the holders of Common Stock to subscribe for or purchase Common Stock at less than the average of the last reported sale prices of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or

warrants and any amount payable on exercise thereof, with the value of such consideration, if other than cash, to be determined by the Company’s Board of Directors.

(c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or rights, options or warrants to acquire Capital Stock of the Company or other securities, to all or substantially all holders of Common Stock, excluding:

•

dividends or distributions and rights, options or warrants referred to in Section 8.03(a), 8.03(b) or 8.03(e) for which an adjustment is made to the Conversion Rate pursuant to the relevant Section;

•

dividends or distributions paid exclusively in cash as described in Section 8.03(d);

•

dividends or distributions in connection with a reclassification, merger, sale or conveyance resulting in a change in the conversion consideration; and

•

Spin-Offs for which the provisions set forth in the latter portion of this Section 8.03(c) shall apply;

(any such shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or rights, options or warrants to acquire Capital Stock of the Company or other securities, the “Distributed Property”) then The Conversion Rate will be adjusted based on the following formula:


CR₁= CR₀ ×		SP₀
		SP₀ - FMV


where

	CR₀ =	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;

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

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

	FMV =	the fair market value (as determined by the Company’s Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution.

If “FMV” (as defined above) is equal to or greater than the “SP₀” (as defined above), in lieu of the foregoing increase, the Company shall pay each Holder, for each $1,000 principal amount of Securities held, at the same time and upon the same terms as holders of the Common Stock, the amount and kind of shares of the Company’s Capital Stock, evidences of the Company’s indebtedness, other assets or property or rights, options or warrants to acquire the Company’s Capital Stock or other securities that such Holder would have received if such Holder had owned a number of shares of Common Stock equal to the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend date for the distribution.

Any increase made under this portion of this Section 8.03(c) will become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

With respect to an adjustment pursuant to this Section 8.03(c) where there has been a payment of a dividend or other distribution on the common stock or shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of the Spin-Off) on a national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), the Conversion Rate will be increased based on the following formula:


CR₁= CR₀ ×		FMV₀ + MP₀
		MP₀


where

	CR₀ =	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for the Spin-Off;

	CR₁ =	the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for the Spin-Off;

	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 10 consecutive Trading Day period after, and including, the effective 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.

The adjustment to the Conversion Rate under the preceding paragraph will occur at the close of business on the last day of the Valuation Period but will be given effect immediately after the open of business on the Ex-Dividend Date for the Spin-Off; provided that if the first Trading Day of the Observation Period for any Security occurs after the first Trading Day of the Valuation Period for a Spin-Off, but on or before the last Trading Day of the Valuation Period for such Spin-Off, the reference in the above definition of “FMV₀” to “10” shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date of such Spin-Off to, but excluding, the first Trading Day of such Observation Period. If one or more Trading Days of the Observation Period for any Security occurs on or after the Ex-Dividend date for a Spin-Off, but on or prior to the first Trading Day in the Valuation Period for such Spin-Off, such Observation Period will be suspended on the first such Trading Day and will resume immediately after the first Trading Day of the Valuation Period for such Spin-Off and the reference in the above definition of “FMV₀” to “10” shall be deemed replaced with a reference to one (1).

Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company’s Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 8.03 (and no adjustment to the Conversion Rate under this Section 8.03 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 8.03(c). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 8.03 was made, (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share

redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.

For purposes of Section 8.03(a), Section 8.03(b) and this Section 8.03(c), any dividend or distribution to which this Section 8.03(c) is applicable that also includes one or both of:

(A) a dividend or distribution of shares of Common Stock to which Section 8.03(a) is applicable (the “Clause A Distribution”); or

(B) a dividend or distribution of rights, options or warrants to which Section 8.03(b) is applicable (the “Clause B Distribution”),

then:

(1) such dividend or distribution, other than the Clause A Distribution and Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 8.03(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 8.03(c) with respect to such Clause C Distribution shall then be made; and

(2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 8.03(a) and Section 8.03(b) with respect thereto shall then be made, except that, if determined by the Company’s Board of Directors, the Ex-Dividend Date of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and any shares of Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or effective date” within the meaning of Section 8.03(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 8.03(b).

(d) If the Company pays a dividend or makes a distribution to all or substantially all holders of Common Stock consisting exclusively of cash other than an Extraordinary Dividend payable with respect to the Securities, the Conversion Rate shall be adjusted based on the following formula:


CR₁ = CR₀ x		SP₀
		SP₀ – C


where

	CR₀ =	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution;

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

	SP₀ =	the Last Reported Sale Prices of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and

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

If “C” (as defined above) is equal to or greater than “SP₀” (as defined above), in lieu of the foregoing increase, the Company will pay each Holder, for each $1,000 principal amount of Securities held, at the same time and upon the same terms as holders of Common Stock, the amount of cash that such Holder would have received if such Holder had owned a number of shares of Common Stock equal to the Conversion Rate in effect immediately

prior to the open of business on the Ex-Dividend Date for the distribution. Such increase shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect had such dividend or distribution not been declared.

For the avoidance of doubt, for purposes of this Section 8.03(d), in the event of any reclassification of the Common Stock, as a result of which the Securities become convertible into more than one class of Common Stock, if an adjustment to the Conversion Rate is required pursuant to this Section 8.03(d), references in this Section 8.03(d) to one share of Common Stock or Last Reported Sale Price of one share of Common Stock shall be deemed to refer to a unit or to the price of a unit consisting of the number of shares of each class of Common Stock into which the Securities are then convertible equal to the numbers of shares of such class issued in respect of one share of Common Stock in such reclassification. The above provisions of this paragraph shall similarly apply to successive reclassifications.

(e) If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for all or any portion of the 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 for exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula:

CR₁ = CR₀ x AC + (SP₁ x OS₁)

OS₀ x SP₁

where


CR₀ =		the Conversion Rate in effect immediately prior to the close of business on the last Trading Day of the Offer Valuation Period;

CR₁ =		the Conversion Rate in effect immediately after the close of business on the last Trading Day of the Offer Valuation Period;

AC =		the aggregate value of all cash and any other consideration (as determined by the Company’s 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 time such tender or exchange offer expires (including any shares purchased pursuant to the tender or exchange offer);

OS₁ =		the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (excluding any shares purchased pursuant to the tender or exchange offer); and

SP₁ =		the average of the Last Reported Sale Prices of Common Stock over the Offer Valuation Period.

The adjustment to the Conversion Rate under the preceding paragraph will occur at the close of business on the last Trading Day of the Offer Valuation period for a tender or exchange offer but will be given effect at the close of business on the Trading Day next succeeding the expiration date for such tender or exchange offer; provided that if the first Trading Day of the Observation Period for any Security occurs after the first Trading Day of the Offer Valuation Period for a tender or exchange offer, but on or before the last Trading Day of the Offer Valuation Period for such tender or exchange offer, the reference in the definition of “Offer Valuation Period” in Section 1.01 to “ten” shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the first Trading Day of the Offer Valuation Period for such tender or exchange offer to, but excluding, the first Trading Day of such Observation Period. If one or more Trading Days of the Observation Period for any Security occurs after the expiration date for any tender or exchange offer, but on or prior to the first Trading Day in the Offer Valuation Period for such tender or exchange offer, such Observation Period will be suspended on the first such Trading Day and will resume immediately after the first Trading Day of the Offer Valuation Period for such tender or exchange

offer and the reference in the above definition of “Offer Valuation Period” in Section 1.01 to “ten” shall be deemed replaced with a reference to one (1).

(f) Notwithstanding the foregoing, if any adjustment to the Conversion Rate described in clauses (a) through (e) of this Section 8.03 above becomes effective and a Holder that has converted its Securities (i) receives shares of Common Stock based on an adjusted Conversion Rate, and (ii) is a record holder of such shares of Common Stock on the record date for the dividend, distribution or other event giving rise to the adjustment or otherwise participates in such dividend, distribution or other event giving rise to the adjustment as a result of holding such shares of Common Stock, then in lieu of receiving shares of Common Stock at such an adjusted Conversion Rate, the Company will adjust the number of shares that it delivers to such Holder as it determines is appropriate to reflect such Holder’s participation in the related dividend, distribution or other event giving rise to the adjustment.

(g) If a Holder converts a Security, and on any Trading Day during the Observation Period for such Security, any distribution or transaction described in clauses (a) through (e) above has not yet resulted in an adjustment to the applicable Conversion Rate on the Trading Day in question, then promptly after such distribution or transaction has occurred, the Company will adjust the amount of cash and the number of shares of Common Stock deliverable to such Holder in respect of the relevant Trading Day as the Company determines is appropriate to reflect the event requiring adjustment.

(h) For purposes of this Section 8.03: (i) the term “record date” shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of 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) and (ii) the term “effective date” shall mean the first date on which the shares trade on the applicable exchange or in the applicable market, regular way, reflecting the transaction.

(i) If application of the formulas provided in clauses (a) through (e) of this Section 8.03 would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate shall be made except in the case of a reverse share split, share combination or readjustment. In addition, in no event shall the Company adjust the Conversion Rate to the extent that the adjustment would reduce the Conversion Price below the par value per share of Common Stock.

(j) In addition to those required by clauses (a) through (e) of this Section 8.03, and to the extent permitted by applicable law and subject to the applicable rules of The NASDAQ Global Select Market (regardless of whether the Common Stock is then listed on the NASDAQ Global Select Market), the Company from time to time may increase the Conversion Rate by any amount for a period of at least 20 consecutive Business Days if the Company’s Board of Directors determines that such increase would be in the Company’s best interest. In addition, the Company may also (but is not required to) increase the Conversion Rate to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection with any dividend or distribution of shares (or rights to acquire shares) or similar event. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall mail to the Holder of each Security at such Holder’s last address appearing on the Security Register provided for in Section 3.05 a notice of the increase at least fifteen 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.

(k) All calculations and other determinations under this Article 8 shall be made by the Company or its agents and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a share, as the case may be. No adjustment shall be made for the Company’s issuance of Common Stock or convertible or exchangeable securities or rights to purchase Common Stock or convertible or exchangeable securities, other than as provided in this Section 8.03. Until the 27^th Scheduled Trading Day immediately preceding the Maturity Date, no adjustment shall be made to the Conversion Rate unless such adjustment would require a change of at least 1% in the Conversion Rate then in effect at such time. Any adjustment that would otherwise be required to be made shall be carried forward and taken into account (i) in any subsequent adjustment of the

Conversion Rate, (ii) on the 27^th Scheduled Trading Day immediately preceding the Maturity Date, and (iii) for any Securities converted before February 15, 2041, immediately prior to the open of business on the first Trading Day of the Observation Period for such Securities and on each subsequent Trading Day of such Observation Period.

(l) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee and the Conversion Agent shall have received such Officers’ Certificate, neither the Trustee nor the Conversion Agent shall be deemed to have knowledge of any adjustment of the Conversion Rate and may assume without inquiry that the last Conversion Rate of which a Responsible Officer of the Trustee or the Conversion Agent, as applicable, has actual 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 at his last address appearing on the Security Register provided for in Section 3.05 of this Indenture, within 20 days of the effective date of such adjustment. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.

(m) In any case in which this Section 8.03 provides that an adjustment shall become effective immediately after (1) an Ex-Dividend Date or effective date for an event or (2) the expiration date for any tender or exchange offer pursuant to Section 8.03(e) (each an “Adjustment Determination Date”), the Company may elect to defer until the occurrence of the applicable Adjustment Event (as hereinafter defined) (x) issuing to the Holder of any Security converted after such Adjustment Determination Date and before the occurrence of such Adjustment Event, the additional shares of Common Stock or other securities issuable upon such conversion by reason of the adjustment required by such Adjustment Event over and above the Common Stock issuable upon such conversion before giving effect to such adjustment and (y) paying to such Holder any amount in cash in lieu of any fraction pursuant to Section 8.03. For purposes of this Section 8.03(m), the term “Adjustment Event” shall mean:

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

(ii) in any case referred to in clause (2) hereof, the date a sale or exchange of Common Stock pursuant to such tender or exchange offer is consummated and becomes irrevocable.

(n) For purposes of this Section 8.03, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.

(o) Notwithstanding any of the foregoing, the 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 the securities of the Company and the investment of additional optional amounts in shares of Common Stock under any plan; (ii) upon the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any Subsidiary; (iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security not described in clause (ii) and outstanding as of the date the Securities were first issued; (iv) for any dividend or distribution in connection with a merger, sale or conveyance effected solely for the purpose of changing the Company’s jurisdiction of incorporation as permitted by the terms of the Indenture; (v) for a change in the par value of the Common Stock; or (vi) for accrued and unpaid Interest, if any.

Section 8.04. Shares to Be Fully Paid. The Company shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock to provide for conversion of the Securities from time to time as such Securities are presented for conversion.

Section 8.05. Adjustments of Average Prices. Whenever a provision of the Indenture requires the calculation of an average of Last Reported Sale Prices or Volume-Weighted Average Price or any function thereof 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 that becomes effective, or any event requiring an adjustment to the Conversion Rate where the effective date, the Ex-Dividend Date or expiration date of the event occurs, at any time during the period from which such Last Reported Sale Price, Volume-Weighted Average Price or functions thereof are to be calculated, including upon the occurrence of multiple events that each result in an adjustment to the Conversion Rate in such period.

Section 8.06. Adjustment in Connection with a Make-Whole Fundamental Change. (a) If a Holder elects to convert Securities at any time following the Company’s delivery of a notice of a Make-Whole Fundamental Change and until (i) if such Make-Whole Fundamental Change is a Fundamental Change, the Fundamental Change Repurchase Date for such Fundamental Change, and (ii) if such Make-Whole Fundamental Change is not a Fundamental Change, the 35^th Business Day immediately following the effective date of such Make-Whole Fundamental Change, the Conversion Rate for such Securities will be increased by an additional number of shares of Common Stock (the “Additional Shares”) as described below.

(b) The number of Additional Shares by which the Conversion Rate will be increased shall be determined by reference to the table attached as Exhibit B hereto, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (the “Make-Whole Effective Date”) and the Stock Price; provided that if the actual Stock Price is between two Stock Price amounts in such table or the Make-Whole Effective Date is between two Make-Whole Effective Dates in such table, the number of Additional Shares shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the next higher and next lower Stock Price amounts and the two nearest Make-Whole Effective Dates, as applicable, based on a 365-day year; provided further that if (1) the Stock Price is greater than $85.00 per share of Common Stock (subject to adjustment in the same manner as set forth in Section 8.03), no Additional Shares will be added to the Conversion Rate, and (2) the Stock Price is less than $32.92 per share (subject to adjustment in the same manner as set forth in Section 8.03), no Additional Shares will be added to the Conversion Rate. Notwithstanding the foregoing, in no event will the Conversion Rate, as a result of a Make-Whole Fundamental Change, exceed 25.3139 shares per $1,000 Principal Amount (subject to adjustment in the same manner as set forth in Section 8.03).

(c) The Stock Prices set forth in the first row of the table in Exhibit B hereto shall be adjusted as of any date on which the Conversion Rate of the Securities is adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate in effect immediately prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares within the table shall be adjusted in the same manner as the Conversion Rate as set forth in Section 8.03 (other than by operation of an adjustment to the Conversion Rate by adding Additional Shares).

(d) The table in Exhibit B hereto sets forth the hypothetical Stock Price and the number of Additional Shares to be received per $1,000 Principal Amount of Securities.

(e) Upon surrender of Securities for conversion in connection with a Make-Whole Fundamental Change, the Company shall deliver an amount of cash and a number of shares of Common Stock pursuant to Section 8.02, provided, however, that if the Observation Period applicable to such Security ends on or prior to the effective date for such Make-Whole Fundamental Change, the Company shall deliver the portion of the Settlement Amount corresponding to the Additional Shares, if any, on the third Business Day immediately following the effective date for such Make-Whole Fundamental Change (for the avoidance of doubt, if an anticipated Make-Whole Fundamental Change does not occur, the Holder will not receive any portion of the Settlement Amount corresponding to such Additional Shares), and provided further that if the Holder converts its Securities after the effective date of such Make-Whole Fundamental Change and such Make-Whole Fundamental Change is described in clause (2) of the definition of Fundamental Change (regardless of the proviso to such clause) and the consideration for Common Stock in such Make-Whole Fundamental Change is comprised entirely of cash, the conversion obligation per $1,000 principal amount of Securities 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 8.06) multiplied by such Stock Price. In such event, the Company will pay the conversion obligation in cash on the third Business Day following the Conversion Date. The Company will notify Holders of the effective date of any Make-Whole Fundamental Change and disseminate a press release through Reuters Economic Services and Bloomberg Business News announcing such effective date no later than five Business Days after such effective date.

(f) The Company shall notify Holders of the Securities, the Trustee and the Paying Agent of a Make-Whole Fundamental Change and the anticipated effective date of such Make-Whole Fundamental Change and disseminate a press release through Reuters Economic Services and Bloomberg Business News announcing the same no later than the 30^th Scheduled Trading Day immediately preceding the anticipated effective date of such Make-Whole Fundamental Change, or, if the Company does not have knowledge of such Make-Whole Fundamental Change or such anticipated effective date at such time, on the third Business Day immediately following the date on which the Company receives notice, or otherwise becomes aware, of such Make-Whole Fundamental Change and such anticipated effective date, but in no event later than the actual effective date for such Make-Whole Fundamental Change.

Section 8.07. Effect of Recapitalizations, Reclassifications and Changes to the Common Stock.

(a) If any of the following events occur:

(i) any recapitalization, reclassification or change of shares of Common Stock issuable upon conversion of the Securities (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination, or any other change for which an adjustment is provided in Section 8.03);

(ii) any consolidation, merger or combination of the Company with another Person;

(iii) any sale, lease or other transfer of all of the consolidated assets of the Company and its Subsidiaries to any other Person substantially as an entirety; or

(iv) any statutory share exchange,

in each case as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof), then, at the effective time of the transaction, the right to convert a Security will be changed to a right to convert each $1,000 principal amount of such Security 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 transaction would have owned or been entitled to receive (the “Reference Property”) upon such transaction. In such a case, any increase in the Conversion Rate by the Additional Shares as provided in Section 8.06 will not be payable in Additional Shares of Common Stock (or cash and Additional Shares) but will represent the right to receive the aggregate amount of cash, securities or other property into which the Additional Shares would be exchanged as a result of the above transaction. However, at and after the effective time of such transaction, (x) any amount otherwise payable in cash upon conversion of the Securities pursuant to Section 8.02 will continue to be payable in cash, (y) the number of shares of Common Stock otherwise deliverable upon conversion of the Securities pursuant to Section 8.02 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 transaction and (z) the Volume-Weighted Average Price will be calculated based on the value of a unit of Reference Property that a holder of one share of Common Stock would have received in such transaction. If the transaction 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 shareholder election), the Reference Property into which the Securities will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such election. If the transaction also constitutes a Fundamental Change, a Holder may require the Company to repurchase all or a portion of its Securities pursuant to Article 7 hereof.

Section 8.08. Certain Covenants.

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

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

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

(c) The Company covenants that if at any time the Common Stock shall be listed on any national securities exchange or automated quotation system, the Company will, if permitted and required by the rules of such exchange or automated quotation system, list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, all Common Stock issuable upon conversion of the Securities.

(d) The Company covenants that it shall not become a party to any transaction described in Section 8.07 unless the terms of such transaction are consistent with the foregoing.

Section 8.09. Responsibility of Trustee. The Trustee and any other Conversion Agent shall not at any time be under any duty or responsibility to any Holder to determine the Conversion Rate or whether any facts exist which may require any adjustment of the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities or property, which may at any time be issued or delivered upon the conversion of any Security; and the Trustee and any other Conversion Agent make no representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property or cash upon the surrender of any Security for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article 8. Without limiting the generality of the foregoing, neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 8.07 relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders upon the conversion of their Securities after any event referred to in such Section 8.07 or to any adjustment to be made with respect thereto, but, subject to the provisions of Section 11.01, may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in conclusively relying upon, the Officers’ Certificate and Opinion of Counsel (which the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto.

Section 8.10. Notice to Holders Prior to Certain Actions. In case:

(a) the Company shall declare a dividend (or any other distribution) on its Common Stock that would require an adjustment in the Conversion Rate pursuant to Section 8.03; or

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

(c) of any reclassification 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 shareholders of the Company is required, or of the sale or transfer of all or substantially all of the assets of the Company; or

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

the Company shall cause to be filed with the Trustee and to be mailed to each Holder at his address appearing on the Security Register, provided for in Section 3.05 of this Indenture, as promptly as possible but in any event at least 30 days prior to the applicable date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution or rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution or rights are to be determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up.

Section 8.11. Shareholder Rights Plans. Each share of Common Stock issued upon conversion of Securities pursuant to this Article 8 shall be entitled to receive the appropriate number of rights, if any, and the certificates representing the Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any shareholder rights plan adopted by the Company, as the same may be amended from time to time. If at the time of conversion, however, the rights have separated from the shares of Common Stock in accordance with the provisions of the applicable shareholder rights agreement so that the Holders of the Securities would not be entitled to receive any rights in respect of Common Stock issuable upon conversion of the Securities, the Conversion Rate will be adjusted at the time of separation as if the Company has distributed to all holders of Common Stock, shares of Capital Stock of the Company, evidence of indebtedness or assets as provided in Section 8.03(c), subject to readjustment in the event of the expiration, termination or redemption of such rights.

Section 8.12. Exchange in Lieu of Conversion.

(a) If at any time when a Holder surrenders Securities for conversion prior to the Stated Maturity of the Securities, the Company:

(i) has designated a financial institution (a “Designated Institution”) to accept, solely at its option, such Securities in exchange for cash and shares of Common Stock, if any, equal to the consideration due upon conversion as provided in Section 8.02; and

(ii) notifies the Holder surrendering such Securities for conversion by the close of business on the second Trading Day after the Conversion Date, that it has directed the Designated Institution to make an exchange in lieu of conversion,

then, notwithstanding anything in this Indenture to the contrary, the Company may direct the Conversion Agent to surrender such Securities, on or prior to the commencement of the applicable Observation Period to the Designated Institution for exchange in lieu of conversion.

(b) If the Designated Institution accepts Securities surrendered for exchange, it shall notify the Conversion Agent whether it shall deliver, upon exchange, an amount in cash or a combination of an amount in

cash and a number of shares of Common Stock and shall deliver such amount in cash and number of shares of Common Stock, if any, as specified in Section 8.02 to the Conversion Agent and the Stock Transfer Agent (in the case of shares of Common Stock) and the Conversion Agent, and Stock Transfer Agent, if applicable, shall deliver such amount in cash and number of shares of Common Stock, if any, to the converting Holder, on the third Business Day immediately following the last day of the applicable Observation Period, which delivery shall be deemed to satisfy the Company’s conversion obligations under this Article 8 with respect to such Holder. Any Securities so exchanged by such Designated Institution shall remain Outstanding for all purposes under this Indenture.

(c) If the Designated Institution agrees to accept any Securities for exchange but does not timely deliver the related consideration to the Conversion Agent, or if the Designated Institution does not accept such Securities for exchange, the Company shall, on the third Business Day immediately following the last day of the applicable Observation Period, convert such Securities into cash and shares of Common Stock, if any, in accordance with the provisions of Section 8.02.

(d) For the avoidance of doubt, in no event will the Company’s designation of a financial institution pursuant to this Section 8.12 require such financial institution to accept any Securities for exchange.

ARTICLE 9

EVENTS OF DEFAULT; REMEDIES

Section 9.01. Events of Default. “Event of Default,” wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

(a) default in the payment of Interest on any Securities when due and payable and such default continues for a period of 30 days;

(b) default in the payment of the Principal Amount, Redemption Price or Fundamental Change Repurchase Price on any Security when it becomes due and payable at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration or otherwise;

(c) default in the Company’s obligation to convert the Securities into cash and, if applicable, shares of its Common Stock, upon exercise of a Holder’s conversion rights in accordance with Article 8 hereof;

(d) failure by the Company to comply with its obligations under Article 10 hereof;

(e) failure by the Company to issue any notice required under Article 8 hereof or a Fundamental Change Company Notice, when due;

(f) default in the performance of any covenant, agreement or condition of the Company in this Indenture or the Securities (other than a covenant or warranty or default in whose performance or whose breach is elsewhere in this paragraph specifically provided for), and such default continues for a period of 60 days after there has received, by registered or certified mail, to the Company by the Trustee or by the Holders of at least 25% in aggregate Principal Amount of the Outstanding Securities a written notice specifying such default and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;

(g) (A) failure by the Company or any of its Significant Subsidiaries to make any payment in an amount in excess of $25 million by the end of any applicable grace period after maturity of indebtedness for money borrowed and continuance of such failure, or (B) the acceleration of indebtedness for borrowed money in an amount in excess of $25 million because of a default by the Company or one of its Significant Subsidiaries with respect to such indebtedness without such indebtedness having been discharged or such acceleration having been cured, waived, rescinded or annulled for a period of 30 days;

(h) the entry by a court having jurisdiction over the Company or its Significant Subsidiaries of (i) a decree or order for relief in respect of the Company or any of its Significant Subsidiaries of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging the Company or any of its Significant Subsidiaries as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect f the Company or any of its Significant Subsidiaries under any applicable federal or state law or (iii) appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any of its Significant Subsidiaries, or of any substantial part of its or its Significant Subsidiaries’ property, or ordering the winding up or liquidation of its or its Significant Subsidiaries’ 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 60 consecutive days; or

(i) the commencement by the Company or any of its Significant Subsidiaries 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 the Company or any of its Significant Subsidiaries to the entry 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 or to the commencement of any bankruptcy or insolvency case or proceeding against it or any of its Significant Subsidiaries, or the filing by it or any of its Significant Subsidiaries of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by the Company or any of its Significant Subsidiaries 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 any of its Significant Subsidiaries or of any substantial part of its or any of its Significant Subsidiaries’ property, or the making by it or any of its Significant Subsidiaries of an assignment for the benefit of creditors, or the admission by the Company or any of its Significant Subsidiaries in writing of its or any of its Significant Subsidiaries’ inability to pay its debts generally as they become due, or the taking of corporate action by the Company or any of its Significant Subsidiaries in furtherance of any such action.

Section 9.02. Acceleration of Maturity; Rescission and Annulment. (a) If an Event of Default (other than those specified in Sections 9.01(h) and 9.01(i) with respect to the Company or any of its Significant Subsidiaries) occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in aggregate Principal Amount of the Outstanding Securities may declare the Principal Amount plus accrued and unpaid Interest on all the Outstanding Securities to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such Principal Amount plus accrued and unpaid Interest shall become immediately due and payable.

(b) Notwithstanding the foregoing, in the case of an Event of Default specified in Section 9.01(h) or Section 9.01(i) with respect to the Company or any of its Significant Subsidiaries, the Principal Amount plus accrued and unpaid Interest on all Outstanding Securities will ipso facto become due and payable without any declaration or other act on the part of the Trustee or any Holder.

(c) At any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article 9 provided, the Holders of a majority in aggregate Principal Amount of the Outstanding Securities, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:

(i) such rescission and annulment will not conflict with any judgment or decree of a court of competent jurisdiction; and

(ii) all Events of Default, other than the non-payment of the Principal Amount plus accrued and unpaid Interest on Securities that have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 9.13.

No such rescission shall affect any subsequent Default or impair any right consequent thereon.

Section 9.03. Additional Interest. (a) If, at any time during the six month period beginning on, and including, the date which is six months after the Issue Date of the Securities, the Company fails to timely file any document or report that the Company 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 current reports on Form 8-K), or the Securities 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 Securities) or Persons that are no longer the Company’s affiliates but that were the Company’s affiliates within the three immediately preceding months, the Company shall pay Additional Interest on the Securities which shall accrue on the Securities (i) at a rate of 0.25% per annum of the Principal Amount of Securities Outstanding for each day during the first 90 days during which the Company’s failure to file, or the failure of the Securities to be Freely Tradable by Holders, other than the Company’s Affiliates, as described above, has occurred and is continuing and (ii) at a rate of 0.50% per annum of the Principal Amount of Securities Outstanding for each day after the first 90 days during such period for which the Company’s failure to file, or the failure of the Securities to be Freely Tradable by Holders, other than the Company’s Affiliates, as described above, has occurred and is continuing.

(b) If, and for so long as, the Restricted Securities Legend has not been removed in accordance with Section 3.10 or the Securities are not otherwise Freely Tradable by Holders, other than the Company’s Affiliates or Persons that are no longer the Company’s affiliates but that were the Company’s affiliates within the three immediately preceding months (as a result of restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Securities), on and after the 365th day after the Issue Date of the Securities, the Company shall pay Additional Interest on the Securities which shall accrue on the Securities at a rate of (i) 0.25% per annum of the Principal Amount of Securities Outstanding for the for each day during the first 90 days during such period and (ii) 0.50% per annum of the Principal Amount Securities Outstanding for each day after the first 90 days during such period.

(c) Notwithstanding Section 9.02, if so elected by the Company, the sole remedy for any Event of Default relating to the failure to comply with Section 5.10 hereof, will for the first 360 days after the occurrence of such an Event of Default consist exclusively of the right to receive Additional Interest on the Securities at an annual rate equal to 0.25% of the Principal Amount of Outstanding Securities during the first 180 days after the occurrence of such an Event of Default and 0.50% of the Principal Amount of Outstanding Securities from the 181st day until the 360th day following the occurrence of such an Event of Default. The Additional Interest payable pursuant to this Section 9.03(c) will be in addition to any Additional Interest that may accrue pursuant to Section 9.03(a) or 9.03(b) hereof. If the Company so elects, the Additional Interest payable under this Section 9.03(c) will be payable on all Outstanding Securities from and including the date on which such Event Of Default first occurs to, but not including, the 360th day thereafter, or such earlier date on which such Event of Default has been cured or waived. On the 360th day after such Event of Default (or earlier, if the Event of Default is cured or waived prior to 360th day), Additional Interest payable pursuant to this Section 9.03(c) will cease to accrue and, to the extent the Event of Default is continuing, the Securities will be subject to acceleration as provided in Section 9.02. In the event the Company does not elect to pay the Additional Interest payable pursuant to this Section 9.03(c) upon an Event of Default in accordance with this paragraph, the Securities will be subject to acceleration as provided in Section 9.02.

In order to elect to pay the Additional Interest payable pursuant to this Section 9.03(c) as the sole remedy during the first 360 days after the occurrence of an Event of Default relating to the failure to comply with Section 5.10 in accordance with the immediately preceding paragraph, the Company must (i) notify all Holders, the Trustee and Paying Agent of such election prior to the beginning of such 360-day period. Upon the failure to timely give all Holders, the Trustee and Paying Agent such notice, the Securities will be subject to acceleration as provided in Section 9.02.

Section 9.04. Collection of Indebtedness and Suits for Enforcement by Trustee. If an Event of Default occurs and is continuing, the Trustee may, but shall not be obligated to, pursue any available remedy to collect the payment of the Principal Amount plus accrued but unpaid Interest on the Securities or to enforce the performance of any provision of the Securities or this Indenture. The Trustee may maintain a

proceeding even if the Trustee does not possess any of the Securities or does not produce any of the Securities in the proceeding.

Section 9.05. Trustee May File Proofs of Claim. In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee under Section 11.07.

No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

Section 9.06. Application of Money Collected. Any money collected by the Trustee pursuant to this Article 9 shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money to Holders, upon presentation of the Securities and the notation thereon of 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 11.07; and

SECOND: To the payment of the amounts then due and unpaid on the Securities for the Principal Amount, Redemption Price, Fundamental Change Repurchase Price or Interest, as the case may be, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities; and

THIRD: Any remainder to the Company.

Section 9.07. Limitation on Suits. No Holder of any Security shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder (other than in the case of an Event of Default specified in Section 9.01(a), 9.01(b) or 9.01(c)), unless:

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

(ii) the Holders of not less than 25% in aggregate Principal Amount of the Outstanding Securities shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

(iii) such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;

(iv) the Trustee for 60 days after its receipt of such notice, request and offer of security or indemnity satisfactory to it has failed to institute any such proceeding; and

(v) no direction, in the opinion of the Trustee, inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in aggregate Principal Amount of the Outstanding Securities;

it being understood and intended that no one or more Holders shall have any right in any manner whatever by virtue of, or by availing itself of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).

Section 9.08. Unconditional Right of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of the Principal Amount, Redemption Price, Fundamental Change Repurchase Price or Interest in respect of the Securities held by such Holder, on or after the respective due dates expressed in the Securities or any Redemption Date or Fundamental Change Purchase Date, as applicable, and to convert the Securities in accordance with Article 8, or to bring suit for the enforcement of any such payment on or after such respective dates or the right to convert, shall not be impaired or affected adversely without the consent of such Holder.

Section 9.09. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

Section 9.10. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

Section 9.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article 9 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

Section 9.12. Control by Holders. The Holders of a majority in Principal Amount of the Outstanding Securities shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee, provided that:

(i) such direction shall not be in conflict with any rule of law or with this Indenture; and

(ii) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.

Section 9.13. Waiver of Past Defaults. The Holders of not less than a majority in Principal Amount of the Outstanding Securities may on behalf of the Holders of all the Securities waive any past Default hereunder and its consequences, except a Default:

(i) Described in Section 9.01(a), 9.01(b) or 9.01(c); or

(ii) in respect of a covenant or provision hereof which under Article 14 cannot be modified or amended without the consent of the Holder of each Outstanding Security affected.

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

Section 9.14. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, in either case in respect of the Securities, a court may require any party litigant in such suit to file an undertaking to pay the costs of the suit, and the court may assess reasonable costs, including reasonable attorney’s fees and expenses, against any party litigant in the suit having due regard to the merits and good faith of the claims or defenses made by the party litigant; but the provisions of this Section 9.14 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in Principal Amount of the Outstanding Securities, or to any suit instituted by any Holder for the enforcement of the payment of the Principal Amount on any Security on or after Maturity of such Security, the Redemption Price or the Fundamental Change Repurchase Price.

ARTICLE 10

CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER OR LEASE

Section 10.01. Company May Consolidate, etc., Only on Certain Terms. The Company shall not consolidate with or merge into any other Person or sell, convey, transfer or lease all or substantially all of its properties and assets or all or substantially all of the Company’s and its Subsidiaries’ consolidated properties and assets, to any Person, unless:

(a) the resulting, surviving or transferee Person is a corporation organized and existing under the laws of the United States of America, any state thereof or the District of Columbia;

(b) the surviving entity or the other entity to which such sale, conveyance, transfer or lease has been made (the “Surviving Entity”), as applicable, expressly assumes by supplemental indenture, executed and delivered to the Trustee, all of the Company’s obligations under the Securities and this Indenture;

(d) if upon the occurrence of any such consolidation, merger, sale, conveyance, transfer or lease the Securities would become convertible into securities issued by an issuer other than the Surviving Entity, the issuer of the securities into which the Securities have become convertible shall fully and unconditionally guarantee, on a senior basis, the Surviving Entity’s obligations under the Securities.

Section 10.02. Successor Substituted. Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of all or substantially all of the properties and assets of the Company or of the Company and its Subsidiaries in accordance with Section 10.01, the Surviving Entity formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such Surviving Entity had been named as the Company herein, and thereafter, except in the case of a lease of all or substantially all of the Company’s properties and assets, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.

ARTICLE 11

THE TRUSTEE

Section 11.01. Certain Duties and Responsibilities. (a) The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Except during the continuance of an Event of Default of which a Responsible Officer of the Trustee has actual knowledge, (i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision 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 mathematical calculations or other facts stated therein). In case an Event of Default of which a Responsible Officer of the Trustee has actual knowledge with respect to the Securities has occurred (which has not been cured or waived), the Trustee shall exercise 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.

(b) 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

(i) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;

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

(iii) the Trustee shall not be liable with respect to any reasonable action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series, 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 with respect to the Securities of such series; and,

(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers. Whether or not therein expressly so 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 11.01.

Section 11.02. Notice of Defaults. The Trustee shall give the Holders notice of any Default hereunder within 90 days after it is known by the Trustee; provided, that (except in the case of any Default in the payment of Principal Amount or Interest on any of

the Securities, Redemption Price or Fundamental Change Repurchase Price), the Trustee shall be protected in withholding such notice if and so long as a Responsible Officer of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders.

Section 11.03. Certain Rights Of Trustee. Subject to the provisions of Section 11.01:

(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors of the Company may be sufficiently evidenced by a Board Resolution;

(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officers’ Certificate;

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

(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture or to institute, conduct or defend any litigation hereunder or in relation hereto at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

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

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

(h) the Trustee shall not be charged with knowledge or required to take notice of any Default or Event of Default with respect to the Securities unless either (i) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (ii) written notice of such Default or Event of Default shall have been received by a Responsible Officer of the Trustee by the Company or any other obligor on such Securities or by any Holder of such Securities;

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

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

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

(l) the permissive rights of the Trustee to take certain actions under or perform any discretionary act enumerated in this Indenture shall not be construed as a duty unless so specified herein, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such action or act;

(m) the Trustee shall not be liable in its individual capacity with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with this Indenture or at the direction of the Holders of a majority in aggregate Principal Amount of the Outstanding Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising or omitting to exercise any trust or power conferred upon the Trustee, under this Indenture;

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

(o) the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.

Section 11.04. Not Responsible for Recitals. The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity, sufficiency or priority of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof. Except with respect to the authentication of Securities pursuant to Section 3.03, the Trustee shall not be responsible for the legality or the validity of this Indenture or the Securities issued or intended to be issued hereunder.

Section 11.05. May Hold Securities. The Trustee, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Section 11.08 and 11.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar or such other agent.

Section 11.06. Money Held in Trust. Subject to the provisions of Section 13.02, all monies and properties 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 otherwise agreed in writing with the Company.

Section 11.07. Compensation, Reimbursement; Indemnification.

The Company agrees:

(i) to pay to the Trustee from time to time such compensation for all services rendered by it hereunder as the Company and the Trustee shall from time to time agree in writing (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

(ii) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as shall be determined to have been caused by its own negligence or willful misconduct; and

(iii) to indemnify the Trustee and any predecessor Trustee for, and to hold it harmless against, any and all loss, liability, damage, claim or expense including taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of this trust, including the reasonable costs and expenses of defending itself against any claim (whether assessed by the Company, by any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder.

Notwithstanding any other provision of this Indenture to the contrary, in no event shall the Trustee be liable for 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.

The obligations of the Company under this Section 11.07 shall survive the resignation or removal of the Trustee and the satisfaction and discharge of this Indenture. To secure the Company’s payment obligations in this Section 11.07, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay principal on the Securities. Such lien shall survive the resignation or removal of the Trustee and the satisfaction and discharge of this Indenture. When the Trustee incurs expenses or renders services after a Default or an Event of Default specified in Section 9.01(h) or 9.01(i) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under U.S. Code, Title 11 or any other similar foreign, federal or state law for the relief of debtors.

Section 11.08. Disqualification; Conflicting Interests. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.

Section 11.09. Corporate Trustee Required; Eligibility. 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, or whose parent banking company 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 said supervising or examining authority, then for the purposes of this Section 11.09, 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 11.09, it shall resign immediately in the manner and with the effect hereinafter specified in this Article 11.

Section 11.10. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article 11 shall become effective until the acceptance of appointment by the successor Trustee under Section 11.11.

(b) The Trustee may resign at any time by giving written notice thereof to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction at the expense of the Company for the appointment of a successor Trustee.

(c) The Trustee may be removed at any time by Act of the Holders of majority in Principal Amount of the Outstanding Securities, delivered to the Trustee and to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the notice of removal, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities.

(d) If at any time:

(i) the Trustee shall fail to comply with Section 11.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or

(ii) the Trustee shall cease to be eligible under Section 11.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or

(iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent, or

(iv) 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, (A) the Company by a Company Order may remove the Trustee, or (B) subject to Section 9.14, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of such Holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company, by a Company Order, shall promptly appoint a successor Trustee. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Holders of a majority in Principal Amount of the Outstanding Securities delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee and supersede the successor Trustee appointed by the Company. If no successor Trustee shall have been so appointed by the Company or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.

(f) The Company shall give written notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Holders in the manner provided in Section 1.06. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.

Section 11.11. Acceptance of Appointment by Successor. (a) Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the

Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts.

(b) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article 11.

Section 11.12. Merger, Conversion, Consolidation or Succession to Business. Any Person into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee by sale or otherwise, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article 11, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

Section 11.13. Preferential Collection of Claims against the Company. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

ARTICLE 12

HOLDERS’ LISTS AND REPORTS BY TRUSTEE

Section 12.01. Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee:

(i) semi-annually, not more than 15 days after each Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Record Date; and

(ii) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;

excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar; provided, however, that no such list need be furnished so long as the Trustee is acting as Security Registrar.

Section 12.02. Preservation of Information; Communications to Holders. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 12.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 12.01 upon receipt of a new list so furnished.

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

(c) Every Holder, 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 Holders made pursuant to the Trust Indenture Act.

Section 12.03. 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. Reports so required to be transmitted at stated intervals of not more than 12 months shall be transmitted no later than July 15 in each calendar year, commencing in July 15, 2012. Each such report shall be dated as of a date not more than 60 days prior to the date of transmission.

(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange, if any, upon which the Securities are listed, with the Commission and with the Company. The Company will promptly notify the Trustee in writing when the Securities are listed on any stock exchange or of any delisting thereof.

ARTICLE 13

SATISFACTION AND DISCHARGE

Section 13.01. Satisfaction and Discharge of Indenture. This Indenture shall cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when

(a) either

(i) all Securities theretofore authenticated and delivered (other than (A) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (B) Securities for whose payment money has theretofore been deposited with the Trustee 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 have been delivered to the Trustee for cancellation; or

(ii) all such Securities not theretofore delivered to the Trustee for cancellation have become due and payable and the Company has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to pay and discharge the entire indebtedness evidenced by such Securities not theretofore delivered to the Trustee for cancellation;

(b) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and

(c) 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 11.07 and, if money shall have been deposited with the Trustee pursuant to Section 13.01 (a)(ii), the obligations of the Trustee under Section 13.02 and the last paragraph of Section 5.04 shall survive such satisfaction and discharge.

Section 13.02. Application of Trust Money. Subject to the provisions of the last paragraph of Section 5.04. All money deposited with the Trustee pursuant to Section 13.01 shall be held in trust and applied by it, in accordance with the provisions of the Securities

and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and Interest for whose payment such money has been deposited with the Trustee.

ARTICLE 14

SUPPLEMENTAL INDENTURES

Section 14.01. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:

(i) to cure any ambiguity or omission or correct any inconsistent or otherwise defective provision contained herein, so long as such action does not adversely affect the interests of the Holders;

(ii) to provide for the assumption by a successor corporation of the Company’s obligations under the indenture;

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

(iv) to provide security for the Securities;

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

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

(vii) to comply with any requirement of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act;

(viii) to appoint a successor Trustee with respect to the indenture;

(ix) to comply with the rules of any applicable Depository; or

(x) to conform the provisions of this Indenture to the “Description of Notes” section contained in the final offering memorandum dated May 5, 2011.

Section 14.02. Supplemental Indentures With Consent of Holders. With the consent of the Holders of not less than a majority in Principal Amount of the Outstanding Securities, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may 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 of modifying in any manner the rights of the Holders under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,

(i) reduce the percentage of the aggregate Principal Amount of the Outstanding Securities, the consent of whose Holders is required for any supplemental indenture, or the consent of whose Holders is required for any waiver under this Indenture (including any waiver of past defaults pursuant to Section 9.13);

(ii) reduce the rate or extend the time of payment of any Interest on any Security;

(iii) reduce the Principal Amount of, or extend the Stated Maturity of, any Security;

(iv) make any change that impairs or adversely affects the conversion rights of any Holder or Conversion Rate of any Security;

(v) reduce the Redemption Price or Fundamental Change Repurchase Price of any Security 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;

(vi) make any Security payable in money other than that stated in the Security or other than in accordance with the provisions of this Indenture;

(vii) impair the right of any Holder to receive payment of the Principal Amount of, or Interest on, a Holder’s Securities 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 Securities;

(viii) change the ranking of the Securities;

(ix) modify any of the provisions of this Section 14.02 or Section 9.10, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby.

It shall not be necessary for any Act of Holders under this Section 14.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

Section 14.03. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article 14 or the modifications thereby of the trusts created by this Indenture, the Trustee shall receive, and (subject to Section 11.01) shall be fully protected in conclusively relying upon, in addition to the documents required by Section 1.02, an Opinion of Counsel and Officer’s Certificate stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. Subject to the preceding sentence, the Trustee shall sign such supplemental indenture if the same does not adversely affect the Trustee’s own rights, duties or immunities under this Indenture or otherwise. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

Section 14.04. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article 14, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

Section 14.05. Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article 15 shall conform to the requirements of the Trust Indenture Act.

Section 14.06. Reference in Securities to Supplemental Indentures. Securities authenticated and delivered after the execution of any supplemental indenture pursuant to this Article 14 shall bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities.

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


NOVELLUS SYSTEMS, INC.

By:		/s/ John D. Hertz
		Name: John D. Hertz
		Title: Vice President and Chief Financial Officer

[Trustee Signature Follows]


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

By:		/s/ Teresa Petta
Name: Teresa Petta
Title: Vice President

EXHIBIT A

Form of Fundamental Change Repurchase Notice

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

700 S. Flower Street, 5th Floor

Los Angeles, CA 90017

Attention: Corporate Trust Services

Re:

Novellus Systems, Inc. (the “Company”)

2.625% Senior Convertible Notes due 2041

This is a Fundamental Change Repurchase Notice as defined in Section 7.01(a) of the Indenture dated as of May 10, 2011 (the “Indenture”) between the Company and The Bank of New York Mellon Trust Company, N.A., as Trustee. Terms used but not defined herein shall have the meanings ascribed to them in the Indenture.

Certificate No(s). of Securities:

I intend to deliver the following aggregate Principal Amount of Securities for purchase by the Company pursuant to Section 7.01 of the Indenture (in multiples of $1,000): $

I hereby agree that the Securities will be purchased as of the Fundamental Change Repurchase Date pursuant to the terms and conditions thereof and of the Indenture.


Signed:

A-1

EXHIBIT B

Additional Shares to Be Delivered in Connection with Conversion

Upon a Make-Whole Fundamental Change


	Stock price
Effective date	$32.92		$35.00		$40.00		$45.00		$50.00		$55.00		$60.00		$65.00		$70.00		$75.00		$80.00		$85.00
May 10, 2011		5.0628		4.9473		4.1304		3.5077		3.0192		2.6271		2.3066		2.0404		1.8165		1.6259		1.4621		1.3201
May 15, 2012		5.0628		4.8893		4.0716		3.4497		2.9630		2.5733		2.2554		1.9920		1.7709		1.5831		1.4220		1.2826
May 15, 2013		5.0628		4.8191		3.9998		3.3782		2.8930		2.5058		2.1909		1.9308		1.7130		1.5286		1.3708		1.2346
May 15, 2014		5.0628		4.7396		3.9161		3.2932		2.8086		2.4233		2.1113		1.8546		1.6405		1.4599		1.3060		1.1736
May 15, 2015		5.0628		4.6586		3.8275		3.2005		2.7146		2.3299		2.0199		1.7661		1.5557		1.3792		1.2295		1.1015
May 15, 2016		5.0628		4.5678		3.7229		3.0887		2.5963		2.2101		1.9009		1.6497		1.4431		1.2712		1.1266		1.0040
May 15, 2017		5.0628		4.4839		3.6178		2.9665		2.4653		2.0732		1.7617		1.5111		1.3072		1.1394		1.0002		0.8835
May 15, 2018		5.0628		4.4276		3.5296		2.8520		2.3299		1.9231		1.6027		1.3479		1.1436		0.9784		0.8438		0.7333
May 15, 2019		5.0628		4.3365		3.3942		2.6754		2.1208		1.6906		1.3563		1.0960		0.8932		0.7349		0.6110		0.5134
May 15, 2020		5.0628		4.2644		3.2631		2.4753		1.8531		1.3678		0.9971		0.7208		0.5198		0.3767		0.2767		0.2078
May 15, 2021		5.0628		4.2368		3.2016		2.3345		1.5650		0.8752		0.0000		0.0000		0.0000		0.0000		0.0000		0.0000
May 15, 2026		5.0628		4.2330		3.1470		2.2551		1.4880		0.8211		0.0000		0.0000		0.0000		0.0000		0.0000		0.0000
May 15, 2031		5.0628		4.4075		3.2311		2.2881		1.4876		0.7963		0.0000		0.0000		0.0000		0.0000		0.0000		0.0000
May 15, 2036		5.0628		4.8574		3.4057		2.3303		1.4729		0.7640		0.0000		0.0000		0.0000		0.0000		0.0000		0.0000
May 15, 2041		5.0628		3.2575		0.0000		0.0000		0.0000		0.0000		0.0000		0.0000		0.0000		0.0000		0.0000		0.0000

B-1

EXHIBIT C

NOVELLUS SYSTEMS, INC.

Officers’ Certificate

[NAME OF OFFICER], the [TITLE]¹ of NOVELLUS SYSTEMS, INC., a California corporation (the “Company”) and [NAME OF OFFICER], the [TITLE]² of the Company do hereby certify, in connection with the sale of $700,000,000 of the Company’s 2.625% Senior Convertible Notes due 2041 (the “Securities”) pursuant to the terms of the Indenture, dated as of May 10, 2011 (as may be amended or supplemented from time to time, the “Indenture”), by and among the Company and The Bank of New York Mellon Trust Company, N.A. (the “Trustee”), that:

1. The undersigned are permitted to sign this “Officers’ Certificate” on behalf of the Company, as the term “Officers’ Certificate” is defined in the Indenture.

2. The undersigned have read, and thoroughly examined, the Indenture and the definitions therein relating thereto.

3. In the opinion of the undersigned, the undersigned have made such examination as is necessary to enable the undersigned to express an informed opinion as to whether or not all conditions precedent to the removal of the Restricted Securities Legend described herein as provided for in the Indenture have been complied with.

4. To the best knowledge of the undersigned, all conditions precedent described herein as provided for in the Indenture have been complied with and no Event of Default (as defined in the Indenture) with respect to any of the Securities (as defined in the Indenture) shall have occurred and is occurring.

5. The Securities have become Freely Tradable without restrictions by non-affiliates of the Company pursuant to Rule 144 under the Securities Act of 1933, as amended.

In accordance with Section 3.10 of the Indenture, the Company hereby instructs you as follows:

1. To take those actions necessary so that the Restricted Securities Legend and set forth on the Restricted Global Securities shall be deemed removed from the Global Securities in accordance with the terms and conditions of the Securities and as provided in the Indenture, without further action on the part of the Holders.

2. To take those actions necessary so that the Restricted Securities CUSIP for the Securities shall be removed from the Global Securities and replaced with an Unrestricted Securities CUSIP, which Unrestricted Securities CUSIP shall be 670008AD3, in accordance with the terms and conditions of the Global Securities and as provided in the Indenture, without further action on the part of the Holders.

[signature page follows]

¹	[Chief Executive Officer, Chief Financial Officer or any Vice President of the Company]

²	[To be the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary]

C-1

IN WITNESS WHEREOF, we have signed this certificate as of [ ].


NOVELLUS SYSTEMS, INC., a California corporation

By:
		Name:
		Title:

By:
		Name:
		Title:

C-2

EXHIBIT D

FORM OF PRIVATE PLACEMENT LEGEND (COMMON STOCK)

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.

BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER AGREES FOR THE BENEFIT OF NOVELLUS SYSTEMS, INC. (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 OF THE COMPANY’S 2.625% CONVERTIBLE SENIOR NOTES DUE 2041 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 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 (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (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.

D-1

Attached files

NOVELLUS SYSTEMS INC Reports

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