exv4w1






Exhibit 4.1




Execution Version




 





ALTRA HOLDINGS, INC.




as Issuer



the GUARANTORS



party hereto



and



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



as Trustee



INDENTURE



Dated as of March 7, 2011



2.75% Convertible Senior Notes due 2031



 




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE 1 Definitions

	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. References to Interest
	 	 	10	 
	Section 1.03.
Rules of Construction
	 	 	10	 
	 
	 	 	 	 
	ARTICLE 2 Issue, Description, Execution, Registration and Exchange of Notes

	 
	 	 	 	 
	Section 2.01. Designation and Amount
	 	 	11	 
	Section 2.02. Form of Notes
	 	 	11	 
	Section 2.03. Date and Denomination of Notes; Payments of Interest
	 	 	11	 
	Section 2.04. Execution, Authentication and Delivery of Notes
	 	 	12	 
	Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary
	 	 	12	 
	Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes
	 	 	17	 
	Section 2.07. Temporary Notes
	 	 	18	 
	Section 2.08. Cancellation of Notes Paid, Converted, Etc
	 	 	18	 
	Section 2.09. CUSIP Numbers
	 	 	18	 
	Section 2.10. Additional Notes; Repurchases
	 	 	18	 
	 
	 	 	 	 
	ARTICLE 3 Satisfaction and Discharge

	 
	 	 	 	 
	Section 3.01. Satisfaction and Discharge
	 	 	19	 
	 
	 	 	 	 
	ARTICLE 4 Particular Covenants of the Company

	 
	 	 	 	 
	Section 4.01. Payment of Principal and Interest
	 	 	19	 
	Section 4.02. Maintenance of Office or Agency
	 	 	19	 
	Section 4.03. Appointments to Fill Vacancies in Trustee’s Office
	 	 	19	 
	Section 4.04. Provisions as to Paying Agent
	 	 	20	 
	Section 4.05. Existence
	 	 	21	 
	Section 4.06. Rule 144A Information Requirement and Annual Reports
	 	 	21	 
	Section 4.07. Stay, Extension and Usury Laws
	 	 	22	 
	Section 4.08. Compliance Certificate; Statements as to Defaults
	 	 	22	 
	Section 4.09. Further Instruments and Acts
	 	 	22	 
	Section 4.10. Furnishing Guarantees
	 	 	22	 
	 
	 	 	 	 
	ARTICLE 5 Lists of Holders and Reports by the Company and the Trustee

	 
	 	 	 	 
	Section 5.01. Lists of Holders
	 	 	23	 
	Section 5.02. Preservation and Disclosure of Lists
	 	 	23	 
	 
	 	 	 	 
	ARTICLE 6 Defaults and Remedies

	 
	 	 	 	 
	Section 6.01. Events of Default
	 	 	23	 
	Section 6.02. Acceleration; Rescission and Annulment
	 	 	24	 
	Section 6.03. Additional Interest
	 	 	24	 
	Section 6.04. Payments of Notes on Default; Suit Therefor
	 	 	25	 
	Section 6.05. Application of Monies Collected by Trustee
	 	 	26	 
	Section 6.06. Proceedings by Holders
	 	 	26	 
	Section 6.07. Proceedings by Trustee
	 	 	27	 
	Section 6.08. Remedies Cumulative and Continuing
	 	 	27	 






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	 	 	Page
	Section 6.09. Direction of Proceedings and Waiver of Defaults by Majority of Holders
	 	 	28	 
	Section 6.10. Notice of Defaults
	 	 	28	 
	Section 6.11. Undertaking to Pay Costs
	 	 	28	 
	 
	 	 	 	 
	ARTICLE 7 Concerning the Trustee

	 
	 	 	 	 
	Section 7.01. Duties of Trustee
	 	 	28	 
	Section 7.02. Rights of Trustee
	 	 	29	 
	Section 7.03. No Responsibility for Recitals, Etc
	 	 	30	 
	Section 7.04. Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes
	 	 	30	 
	Section 7.05. Monies and Shares of Common Stock to Be Held in Trust
	 	 	30	 
	Section 7.06. Compensation and Expenses of Trustee
	 	 	30	 
	Section 7.07. Officers’ Certificate as Evidence
	 	 	31	 
	Section 7.08. Eligibility of Trustee
	 	 	31	 
	Section 7.09. Resignation or Removal of Trustee
	 	 	31	 
	Section 7.10. Acceptance by Successor Trustee
	 	 	32	 
	Section 7.11. Succession by Merger, Etc
	 	 	32	 
	Section 7.12. Trustee’s Application for Instructions from the Company
	 	 	33	 
	 
	 	 	 	 
	ARTICLE 8 Concerning the Holders

	 
	 	 	 	 
	Section 8.01. Action by Holders
	 	 	33	 
	Section 8.02. Proof of Execution by Holders
	 	 	33	 
	Section 8.03. Who Are Deemed Absolute Owners
	 	 	33	 
	Section 8.04. Company-Owned Notes Disregarded
	 	 	34	 
	Section 8.05. Revocation of Consents; Future Holders Bound
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 9 Holders’ Meetings

	 
	 	 	 	 
	Section 9.01. Purpose of Meetings
	 	 	34	 
	Section 9.02. Call of Meetings by Trustee
	 	 	35	 
	Section 9.03. Call of Meetings by Company or Holders
	 	 	35	 
	Section 9.04. Qualifications for Voting
	 	 	35	 
	Section 9.05. Regulations
	 	 	35	 
	Section 9.06. Voting
	 	 	35	 
	Section 9.07. No Delay of Rights by Meeting
	 	 	36	 
	 
	 	 	 	 
	ARTICLE 10 Supplemental Indentures

	 
	 	 	 	 
	Section 10.01. Supplemental Indentures Without Consent of Holders
	 	 	36	 
	Section 10.02. Supplemental Indentures with Consent of Holders
	 	 	37	 
	Section 10.03. Effect of Supplemental Indentures
	 	 	37	 
	Section 10.04. Notation on Notes
	 	 	38	 
	Section 10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee
	 	 	38	 
	 
	 	 	 	 
	ARTICLE 11 Consolidation, Merger, Sale, Conveyance and Lease

	 
	 	 	 	 
	Section 11.01. Company May Consolidate, Etc. on Certain Terms
	 	 	38	 
	Section 11.02. Successor Corporation to Be Substituted
	 	 	38	 
	Section 11.03. Opinion of Counsel to Be Given to Trustee
	 	 	39	 
	 
	 	 	 	 
	ARTICLE 12 Immunity of Incorporators, Stockholders, Officers and Directors

	 
	 	 	 	 
	Section 12.01. Indenture and Notes Solely Corporate Obligations
	 	 	39	 






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	 	 	Page
	ARTICLE 13 Contingent Interest

	 
	 	 	 	 
	Section 13.01. Contingent Interest.
	 	 	39	 
	Section 13.02. Trustee’s Responsibilities in Respect of Contingent Interest
	 	 	40	 
	Section 13.03. Payment of Contingent Interest
	 	 	40	 
	Section 13.04. Tax Treatment of the Securities
	 	 	40	 
	 
	 	 	 	 
	ARTICLE 14 Conversion of Notes

	 
	 	 	 	 
	Section 14.01. Conversion Privilege
	 	 	40	 
	Section 14.02. Conversion Procedure; Settlement Upon Conversion.
	 	 	42	 
	Section 14.03. Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes
	 	 	45	 
	Section 14.04. Adjustment of Conversion Rate
	 	 	47	 
	Section 14.05. Adjustments of Prices
	 	 	53	 
	Section 14.06. Shares to Be Fully Paid
	 	 	53	 
	Section 14.07. Effect of Recapitalizations, Reclassifications and Changes of the Common Stock.
	 	 	53	 
	Section 14.08. Certain Covenants
	 	 	55	 
	Section 14.09. Responsibility of Trustee
	 	 	55	 
	Section 14.10. Notice to Holders Prior to Certain Actions
	 	 	56	 
	Section 14.11. Stockholder Rights Plans
	 	 	56	 
	Section 14.12. Limit on Issuance of Shares of Common Stock Upon Conversion
	 	 	56	 
	Section 14.13. Exchange in lieu of conversion.
	 	 	56	 
	 
	 	 	 	 
	ARTICLE 15 Repurchase of Notes at Option of Holders

	 
	 	 	 	 
	Section 15.01. Repurchase at Option of Holders Upon a Fundamental Change.
	 	 	57	 
	Section 15.02. Repurchase at Option of Holders Upon an Option Repurchase Date.
	 	 	59	 
	Section 15.03. Withdrawal of Fundamental Change Repurchase Notice or Option Repurchase Notice
	 	 	61	 
	Section 15.04. Deposit of Fundamental Change Repurchase Price and Option Repurchase Price.
	 	 	61	 
	Section 15.05. Covenant to Comply with Applicable Laws Upon Repurchase of Notes
	 	 	62	 
	Section 15.06. Purchase by Third Party
	 	 	62	 
	 
	 	 	 	 
	ARTICLE 16 Optional Redemption

	 
	 	 	 	 
	Section 16.01. Optional Redemption.
	 	 	62	 
	Section 16.02. Notice of Redemption; Selection of Notes.
	 	 	62	 
	Section 16.03. Payment of Notes Called for Redemption.
	 	 	64	 
	Section 16.04. Restrictions on Redemption
	 	 	65	 
	Section 16.05. No Registration Obligation on Redemption
	 	 	65	 
	 
	 	 	 	 
	ARTICLE 17 GUARANTEE OF NOTES

	 
	 	 	 	 
	Section 17.01. Unconditional Guarantee
	 	 	66	 
	Section 17.02. Limitations on Guarantees; Release or Suspension of Particular Guarantors’ Obligations
	 	 	66	 
	Section 17.03. Execution and Delivery of Guarantee
	 	 	67	 
	Section 17.04. Release of a Guarantor due to Extraordinary Events
	 	 	67	 
	Section 17.05. Waiver of Subrogation
	 	 	67	 
	Section 17.06. No Set-Off
	 	 	68	 
	Section 17.07. Obligations Absolute
	 	 	68	 
	Section 17.08. Obligations Continuing
	 	 	68	 
	Section 17.09. Obligations Not Reduced
	 	 	68	 
	Section 17.10. Obligations Reinstate
	 	 	68	 
	Section 17.11. Obligations Not Affected
	 	 	68	 
	Section 17.12. Waiver
	 	 	69	 






iii









 






	 	 	 	 	 
	 	 	Page
	Section 17.13. No Obligation to Take Action Against the Company
	 	 	69	 
	Section 17.14. Dealing with the Company and Others
	 	 	69	 
	Section 17.15. Default and Enforcement
	 	 	70	 
	Section 17.16. Amendment, etc
	 	 	70	 
	Section 17.17. Acknowledgment
	 	 	70	 
	Section 17.18. Costs and Expenses
	 	 	70	 
	Section 17.19. No Merger or Waiver; Cumulative Remedies
	 	 	70	 
	Section 17.20. Survival of Obligations
	 	 	70	 
	Section 17.21. Guarantee in Addition to Other Obligations
	 	 	70	 
	Section 17.22. Severability
	 	 	71	 
	Section 17.23. Successors and Assigns
	 	 	71	 
	Section 17.24. Acknowledgement under TIA
	 	 	71	 
	 
	 	 	 	 
	ARTICLE 18 Miscellaneous Provisions

	 
	 	 	 	 
	Section 18.01. Provisions Binding on Company’s Successors
	 	 	71	 
	Section 18.02. Official Acts by Successor Corporation
	 	 	71	 
	Section 18.03. Addresses for Notices, Etc
	 	 	71	 
	Section 18.04. Governing Law
	 	 	72	 
	Section 18.05. Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee
	 	 	72	 
	Section 18.06. Legal Holidays
	 	 	72	 
	Section 18.07. No Security Interest Created
	 	 	72	 
	Section 18.08. Benefits of Indenture
	 	 	72	 
	Section 18.09. Table of Contents, Headings, Etc
	 	 	73	 
	Section 18.10. Authenticating Agent
	 	 	73	 
	Section 18.11. Execution in Counterparts
	 	 	73	 
	Section 18.12. Severability
	 	 	73	 
	Section 18.13. Waiver of Jury Trial
	 	 	74	 
	Section 18.14. Force Majeure
	 	 	74	 
	Section 18.15. Calculations
	 	 	74	 






iv









 





     INDENTURE dated as of March 7, 2011, among ALTRA HOLDINGS, INC., a Delaware corporation, as
issuer (the “Company”, as more fully set forth in Section 1.01) each of the Guarantors party hereto
and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee (the “Trustee”, as more fully set
forth in Section 1.01).



W I T N E S S E T H:




     WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issuance of
its 2.75% Convertible Senior Notes due 2031 (the “Notes”), initially in an aggregate principal
amount not to exceed $75,000,000.00 (as increased by an amount equal to the aggregate principal
amount of any additional Notes purchased by the Initial Purchasers pursuant to the exercise of
their option to purchase additional Notes as set forth in the Purchase Agreement), and in order to
provide the terms and conditions upon which the Notes are to be authenticated, issued and
delivered, the Company has duly authorized the execution and delivery of this Indenture; and



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



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



     NOW, THEREFORE, THIS INDENTURE



WITNESSETH:




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



ARTICLE 1

Definitions




     Section 1.01. Definitions. The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective meanings specified in
this Section 1.01. The words “herein,” “hereof,” “hereunder,” and words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other subdivision. The
terms defined in this Article include the plural as well as the singular.



     “Additional Interest” means all amounts, if any, payable pursuant to Section 4.06(d), Section
4.06(e) and Section 6.03, as applicable.



     “Additional Shares” shall have the meaning specified in Section 14.03(a).



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



1









 





     “Bid Solicitation Agent” means the Person appointed by the Company to solicit bids for the
Trading Price of the Notes in accordance with Section 14.01(b)(i); provided, however, that the
Trustee may not act as the Bid Solicitation Agent. The Company shall initially act as Bid
Solicitation Agent.



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



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



     “Business Day” means, with respect to any Note, any day other than a Saturday, a Sunday or a
day on which the Federal Reserve Bank of New York is closed.



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



     “Cash Settlement” shall have the meaning specified in Section 14.02(a).



     “Clause A Distribution” shall have the meaning specified in Section 14.04(c).



     “Clause B Distribution” shall have the meaning specified in Section 14.04(c).



     “Clause C Distribution” shall have the meaning specified in Section 14.04(c).



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



     “closing
price” means the closing price of the Common Stock on the
NASDAQ Global Select Market or the NASDAQ Global Market or, if
the Common Stock is not then listed on the NASDAQ  Global Select
Market or the NASDAQ Global Market, on the principal other U.S.
national or regional securities exchange on which the Common Stock is then listed or, if the Common
Stock is not then listed on a U.S. national or regional securities exchange, on the principal other
market on which the Common Stock is then traded.



     “Combination Settlement” shall have the meaning specified in Section 14.02(a).



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



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



     “Common Stock” means the common stock of the Company, par value $0.001 per share, at the date
of this Indenture, subject to Section 14.07.



     “Company” shall have the meaning specified in the first paragraph of this Indenture, and
subject to the provisions of Article 11, shall include its successors and assigns.



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



     “Contingent Payment Regulations” shall have the meaning specified in Section 13.04.



2









 





     “Contingent Interest” shall have the meaning specified in Section 13.01(a).



     “Conversion Agent” shall have the meaning specified in Section 4.02.



     “Conversion Date” shall have the meaning specified in Section 14.02(d).



     “Conversion Obligation” shall have the meaning specified in Section 14.01(a).



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



     “Conversion Rate” shall have the meaning specified in Section 14.01(a).



     “Corporate Trust Office” means the principal office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the date hereof is located at The
Bank of New York Mellon Trust Company, N.A., 700 South Flower Street, Suite 500, Los Angeles,
California 90017, Attention: Corporate Trust Administration, or such other address as the Trustee
may designate from time to time by notice to the Holders and the Company, or the principal
corporate trust office of any successor Trustee (or such other address as such successor Trustee
may designate from time to time by notice to the Holders and the Company).



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



     “Daily Conversion Value” means, for each of the 40 consecutive Trading Days during the
Observation Period, 2.5% of the product of (a) the Conversion Rate on such Trading Day and (b) the
Daily VWAP on such Trading Day.



     “Daily Measurement Value” means the Specified Dollar Amount (if any), divided by 40.



     “Daily Settlement Amount,” for each of the 40 consecutive Trading Days during the Observation
Period, shall consist of:



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



     (b) if the Daily Conversion Value exceeds the Daily Measurement Value, a number of shares of
Common Stock equal to (i) the difference between the Daily Conversion Value and the Daily
Measurement Value, divided by (ii) the Daily VWAP for such Trading Day.



     “Daily VWAP” means, for each of the 40 consecutive Trading days during the applicable
Observation Period, the per share volume-weighted average price as displayed under the heading
“Bloomberg VWAP” on Bloomberg page “AIMC.UQ EQUITY AQR” (or its equivalent successor if such page
is not available) in respect of the period from the scheduled open of trading until the scheduled
close of trading of the primary trading session on such Trading Day (or if such volume-weighted
average price is unavailable, the market value of one share of 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 “Daily VWAP” shall be
determined without regard to after hours trading or any other trading outside of the regular
trading session trading hours.



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



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



     “Designated Institution” shall have the meaning specified in Section 14.13(a).



3









 





     “Distributed Property” shall have the meaning specified in Section 14.04(c).



     “Effective Date” shall have the meaning specified in Section 14.03(c).



     “Event of Default” shall have the meaning specified in Section 6.01.



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



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



     “Form of Assignment and Transfer” shall mean the “Form of Assignment and Transfer” attached as
Attachment 4 to the Form of Note attached hereto as Exhibit A.



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



     “Form of Notation of Guarantee” shall mean the “Form of Notation of Guarantee” attached as
Attachment 5 to the Form of Note attached hereto as Exhibit A.



     “Form of Option Repurchase Notice” shall mean the “Form of Option Repurchase Notice” attached
as Attachment 3 to the Form of Note attached hereto as Exhibit A.



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



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



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



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



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



4









 





     (d) the Common Stock (or other common stock underlying the Notes) ceases to be listed or
quoted on any of The New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global
Market (or any of their respective successors);


provided, however, that a transaction or transactions described in clause (b) above shall not
constitute a Fundamental Change if at least 90% of the consideration received or to be received by
the holders of Common Stock, excluding cash payments for fractional shares, in connection with such
transaction or transactions consists of shares of Publicly Traded Securities, and as a result of
this transaction or transactions the Notes become convertible into such Publicly Traded Securities,
excluding cash payments for fractional shares (subject to the provisions of Section 14.02(a)).




     “Fundamental Change Company Notice” shall have the meaning specified in Section 15.01(c).



     “Fundamental Change Repurchase Date” shall have the meaning specified in Section 15.01(a).



     “Fundamental Change Repurchase Notice” shall have the meaning specified in Section
15.01(b)(i).



     “Fundamental Change Repurchase Price” shall have the meaning specified in Section 15.01(a).



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



     “Guarantee” has the meaning provided in Section 17.01.



     “Guarantor” means (a) initially, each of the Guarantors named on the signature pages of this
Indenture, and (b) each of the Company’s Subsidiaries that in the future executes a Guarantee in
substantially the form of the Form of Notation of Guarantee in which such Subsidiary agrees to be
bound by the terms hereof as Guarantor, in each case, subject to release or suspension as provided
in Article 17.



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



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



     “Initial Purchasers” means Jefferies & Company, Inc., J.P. Morgan Securities LLC, Robert W.
Baird & Co. Incorporated, KeyBanc Capital Markets Inc. and Stephens Inc.



     “Interest Payment Date” means each March 1 and September 1 of each year, beginning on
September 1, 2011, subject to the adjustment specified in Section 18.06.



     “Interest Payment Period” means the period between consecutive Interest Payment Dates.



     “Irrevocable Net Share Settlement Election” has the meaning provided in Section 14.02(b).



     “Irrevocable Net Share Settlement Election Date” has the meaning provided in Section 14.02(b).



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



5









 





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



     “Make-Whole Premium” means a payment in cash, Common Stock or a combination of cash and Common
Stock, at the Company’s option, equal to the sum of the present values of the remaining scheduled
payments of interest on any Notes to be redeemed through March 1, 2018 (excluding interest accrued
to, but excluding, the Redemption Date), with such present values being computed using a discount
rate equal to 3.0%; provided, however, that if the Company elects to pay some or all of the
Make-Whole Premium in shares of Common Stock, then the number of shares of Common Stock a Holder
will receive upon redemption will be that number of shares of Common Stock that have a value equal
to the amount of the Make-Whole Premium payment to be paid to such Holder in shares of Common
Stock, divided by the product of the average of the closing prices of the Common Stock for the five
Trading Days immediately preceding and including the third day prior to the date of such redemption
multiplied by 97.5%. The Make-Whole Premium shall be determined by the Company in accordance with
the provisions of this Indenture.



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



     “Maturity Date” means March 1, 2031.



     “Measurement Period” shall have the meaning specified in Section 14.01(b)(i).



     “Merger Event” shall have the meaning specified in Section 14.07(a).



     “Note” or “Notes” shall have the meaning specified in the recitals of this Indenture.



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



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



     “Notice of Conversion” shall have the meaning specified in Section 14.02(c).



     “Observation Period” with respect to any Note surrendered for conversion means: (i) subject
to clause (ii), if the relevant Conversion Date occurs prior to December 1, 2030, the 40
consecutive Trading Day period beginning on, and including, the third Trading Day after such
Conversion Date; (ii) if the relevant Conversion Date occurs on or after the date of the Company’s
issuance of a Redemption Notice with respect to the Notes pursuant to Section 16.02 and prior to
the relevant Redemption Date, the 40 consecutive Trading Days beginning on, and including, the
42nd Scheduled Trading Day immediately preceding such Redemption Date; and (iii) if the
relevant Conversion Date occurs on or after December 1, 2030, the 40 consecutive Trading Days
beginning on, and including, the 42nd Scheduled Trading Day immediately preceding the
Maturity Date.



     “Offering Memorandum” means the preliminary offering memorandum dated February 28, 2011, as
supplemented by the pricing term sheet dated March 1, 2011, relating to the offering and sale of
the Notes.



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



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     “Officers’ Certificate,” when used with respect to the Company, means a certificate that is
delivered to the Trustee and that is signed by two Officers of the Company, provided that at least
one such Officer is either the Chairman of the Board, the Chief Executive Officer, the President,
the Chief Operating Officer or the Chief Financial Officer of the Company. Each such certificate
shall include the statements provided for in Section 18.05 if and to the extent required by the
provisions of such Section. One of the Officers giving an Officers’ Certificate pursuant to
Section 4.08 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 an opinion in writing signed by legal counsel, who may be an
employee of or counsel to the Company, or other counsel reasonably acceptable to the Trustee, that
is delivered to the Trustee. Each such opinion shall include the statements provided for in
Section 18.05 if and to the extent required by the provisions of such Section 18.05.



     “Option Company Notice” shall have the meaning specified in Section 15.02(c).



     “Option Repurchase Date” shall have the meaning specified in Section 15.02(a).



     “Option Repurchase Notice” shall have the meaning specified in Section 15.02(b)(i).



     “Option Repurchase Price” shall have the meaning specified in Section 15.02(a).



     “Optional Redemption” shall have the meaning specified in Section 16.01(a).



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



     (a) Notes (including, for the avoidance of doubt, Notes repurchased by the Company pursuant
to Section 2.10) theretofore canceled by the Trustee or accepted by the Trustee for cancellation;



     (b) Notes, or portions thereof, that have become due and payable and in respect of which
monies in the necessary amount shall have been deposited in trust with the Trustee or with any
Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent);



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



     (d) Notes converted pursuant to Article 15 and required to be cancelled pursuant to Section
2.08.



     “Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC,
shall
include Euroclear and Clearstream).




     “Paying Agent” shall have the meaning specified in Section 4.02.



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



     “Physical Notes” means permanent certificated Notes in registered form issued in minimum
denominations of $2,000 principal amount and integral multiples of $1,000 thereafter.



     “Physical Settlement” shall have the meaning specified in Section 14.02(a).



7









 





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



     “Publicly Traded Securities” means shares of common stock that are listed or quoted on any of
The New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or any of
their respective successors) or will be so listed or quoted when issued or exchanged in connection
with a Fundamental Change described in clause (b) of the definition thereof.



     “Purchase Agreement” means that certain Purchase Agreement, dated as of March 1, 2011, among
the Company, the Guarantors name therein, and the Initial Purchasers.



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



     “Redemption Date” shall have the meaning specified in Section 16.02(a).



     “Redemption Notice” shall have the meaning specified in Section 16.02(a).



     “Redemption Price” means:



     (a) on or after March 1, 2015 but prior to March 1, 2018, the sum of 100% of the principal
amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to, but not
including, the Redemption Date, plus the Make-Whole Premium; or



     (b) on or after March 1, 2018, 100% of the principal amount of the Notes to be redeemed, plus
accrued and unpaid interest (including, contingent interest and additional interest, if any) to,
but not including, the Redemption Date;


provided, however, in either case, that if the Redemption Date is after a Regular Record Date and
prior to the Interest Payment Date to which it relates, then the accrued and unpaid interest, if
any, to, but excluding, the Redemption Date, shall be paid on such Interest Payment Date to the
Holders of record of such Notes on the applicable Regular Record Date instead of the Holders
surrendering such Notes for redemption on the Redemption Date (and in this circumstance, the
Make-Whole Premium shall be calculated based on the present values of the remaining scheduled
payments of interest on such Notes, starting with the next Interest Payment Date for which interest
has not been provided for herein).The Redemption Price shall be determined by the Company in
accordance with the provisions of this Indenture.




     “Reference Property” shall have the meaning specified in Section 14.07(a).



     “Regular Record Date,” with respect to any Interest Payment Date, shall mean the later of the
February 15 or August 15 (whether or not such day is a Business Day) immediately preceding the
applicable March 1 or September 1 Interest Payment Date.



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



     “Responsible Officer” means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter



8









 




is referred because of such person’s knowledge of and familiarity with the particular subject
and who shall have direct responsibility for the administration of this Indenture.




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



     “Restricted Subsidiary” means (a) all existing Subsidiaries of the Company, other than any
foreign Subsidiaries, and (b) all future Subsidiaries of the Company that become Guarantors, in
each case, until such time as such Subsidiary is released in accordance with the terms of this
Indenture.



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



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



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



     “Settlement Amount” has the meaning specified in Section 14.02(a)(iv).



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



     “Settlement Notice” has the meaning specified in Section 14.02(a)(iii).



     “Significant Subsidiary” means a Subsidiary of the Company that meets the definition of
“significant subsidiary” in Article 1, Rule 1-02(w) of Regulation S-X under the Securities Act and
Exchange Act.



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



     “Spin-Off” shall have the meaning specified in Section 14.04(c).



     “Stock Price” shall have the meaning specified in Section 14.03(c).



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



     “Successor Company” shall have the meaning specified in Section 11.01(a).



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



9









 




the Common Stock is not then listed on a U.S. national or regional securities exchange, on the
principal other market on which the Common Stock is then listed or admitted for trading, except
that if the Common Stock is not so listed or admitted for trading, “Trading Day” means a Business
Day.




     “Trading Price” of the Notes on any date of determination means the average of the secondary
market bid quotations per $1,000 principal amount of Notes obtained by the Bid Solicitation Agent
for $2,000,000 principal amount of Notes at approximately 3:30 p.m., New York City time, on such
determination date from three independent nationally recognized securities dealers the Company
selects; provided that if at least three such bids cannot reasonably be obtained by the Bid
Solicitation Agent but two such bids are obtained, then the average of the two bids shall be used,
and if only one such bid can reasonably be obtained by the Bid Solicitation Agent, that one bid
shall be used.



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



     “Trigger Event” shall have the meaning specified in Section 14.04(c).



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



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



     “unit of Reference Property” shall have the meaning specified in Section 14.07(a).



     “Valuation Period” shall have the meaning specified in Section 14.04(c).



     Section 1.02. References to Interest. Unless the context otherwise requires, any reference
to interest on, or in respect of, any Note in this Indenture shall be deemed to include (a)
Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant
to any of Section 4.06(d), Section 4.06(e) and Section 6.03 and (b) Contingent Interest if, in such
context, Contingent Interest is, was or would be payable pursuant to Section 13.01(a). Unless the
context otherwise requires, any express mention of Additional Interest or Contingent Interest in
any provision hereof shall not be construed as excluding Additional Interest or Contingent
Interest, respectively, in those provisions hereof where such express mention is not made.



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




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




     (2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with U.S. generally accepted accounting principles in effect from time to time;




     (3) “or” is not exclusive;




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




     (5) “will” shall be interpreted to express a command;




     (6) provisions apply to successive events and transactions;




     (7) references to sections of or rules under the Securities Act will be deemed to
include substitute, replacement of successor sections or rules adopted by the SEC from time
to time; and




     (8) references to currency shall mean the lawful currency of the United States of
America, unless the context requires otherwise.



10









 





ARTICLE 2

Issue, Description, Execution, Registration and Exchange of Notes




     Section 2.01. Designation and Amount. The Notes shall be designated as the “2.75%
Convertible Senior Notes due 2031.” The aggregate principal amount of Notes that may be
authenticated and delivered under this Indenture is initially limited to $75,000,000 (as increased
by an amount equal to the aggregate principal amount of any additional Notes purchased by the
Initial Purchasers following the date hereof pursuant to the exercise of their option to purchase
additional Notes as set forth in the Purchase Agreement), subject to Section 2.10 and except for
Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu
of other Notes pursuant to Section 2.05, Section 2.06, Section 10.04, Section 14.02 and Section
15.04.



     Section 2.02. Form of Notes. The Notes and the Trustee’s certificate of authentication to be
borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, the
terms and provisions of which shall constitute, and are hereby expressly incorporated in and made a
part of this Indenture. To the extent applicable, the Company and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.



     Any Global Note may be endorsed with or have incorporated in the text thereof such legends or
recitals or changes not inconsistent with the provisions of this Indenture as may be required by
the Custodian or the Depositary, or as may be required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any securities exchange or automated
quotation system upon which the Notes may be listed or traded or designated for issuance or to
conform with any usage with respect thereto, or to indicate any special limitations or restrictions
to which any particular Notes are subject.



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



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



     Section 2.03. Date and Denomination of Notes; Payments of Interest. (a) The Notes shall be
issuable in registered form without coupons in minimum denominations of $2,000 principal amount and
integral multiples of $1,000 thereafter. Each Note shall be dated the date of its authentication
and shall bear interest from the date specified on the face of the form of Note attached as Exhibit
A hereto. Accrued interest on the Notes shall be computed on the basis of a 360-day year composed
of twelve 30-day months.



          (b) The Person in whose name any Note (or its Predecessor Note) is registered on the Note
Register at the close of business on any Regular Record Date with respect to any Interest Payment
Date shall be entitled to receive the interest payable on such Interest Payment Date. Interest
shall be payable at the office or agency of the Company maintained by the Company for such
purposes, which shall initially be the Corporate Trust Office. The Company shall pay interest (i)
on any Physical Notes (A) to Holders having an aggregate principal amount of $5,000,000 or less, by
check mailed to the Holders of these Notes at their address as it appears in the Note Register and
(B) to Holders having an aggregate principal amount of more than $5,000,000, either by check mailed






11









 







to the Holders of these Notes or upon application by a Holder to the Note Registrar not later
than the relevant Regular Record Date, by wire transfer in immediately available funds to that
Holder’s account within the United States, which application shall remain in effect until the
Holder notifies, in writing, the Note Registrar to the contrary or (ii) on any Global Note by wire
transfer of immediately available funds to the account of the Depositary or its nominee.




     Section 2.04. Execution, Authentication and Delivery of Notes. The Notes shall be signed in
the name and on behalf of the Company by the manual or facsimile signature of at least one of its
Officers.



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



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



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



     Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer;
Depositary.



          (a) The Company shall cause to be kept at the Corporate Trust Office a register (the register
maintained in such office or in any other office or agency of the Company designated pursuant to
Section 4.02, the “Note Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. Such
register shall be in written form or in any form capable of being converted into written form
within a reasonable period of time. The Trustee is hereby appointed the “Note Registrar” for the
purpose of registering Notes and transfers of Notes as herein provided. The Company may appoint
one or more co-Note Registrars in accordance with Section 4.02.




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



     Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at any such office or agency
maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that
the Holder making the exchange is entitled to receive, bearing registration numbers not
contemporaneously outstanding.



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



12









 





     No service charge shall be charged to the Holder for any exchange or registration of transfer
of Notes, but the Company or the Trustee may require a Holder to pay a sum sufficient to cover any
tax or other similar governmental charge required by law or permitted pursuant to Section 14.02(f).



     None of the Company, the Trustee, the Note Registrar or any co-registrar shall be required to
exchange or register a transfer of (i) any Notes surrendered for conversion or, if a portion of any
Note is surrendered for conversion, such portion thereof surrendered for conversion, (ii) any
Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with
Article 15 or (iii) any Notes selected for redemption in accordance with Article 16.



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



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




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




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




THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION
OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NONE OF
THIS SECURITY, THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS
SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN 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.




THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
(A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT)



13









 






(B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN
ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION
IN WHICH SUCH PURCHASE IS MADE, OR (C) IT IS AN “ACCREDITED INVESTOR”
WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT AND (2) AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE EXPIRATION OF
THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET
FORTH IN RULE 144 UNDER THE SECURITIES ACT, ONLY (A) TO ALTRA HOLDINGS,
INC. (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH
THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS
MADE, (D) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 UNDER
THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C), (D) OR (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING
CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF
THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE
OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO
RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT.



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



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



14









 




Company shall promptly notify the Trustee upon the occurrence of the Resale Restriction
Termination Date and promptly after a registration statement, if any, with respect to the Notes or
any Common Stock issued upon conversion of the Notes has been declared effective under the
Securities Act.




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



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



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



     Notwithstanding the foregoing provisions, beneficial interests in a Global Note may be
exchanged for Physical Notes in accordance with the procedures of the Depositary.



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



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



     None of the Company, the Trustee or any agent of the Company or the Trustee shall have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.



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






15









 







registration statement that has become or been declared effective under the Securities Act and
that continues to be effective at the time of such transfer, or pursuant to the exemption from
registration provided by Rule 144 or any similar provision then in force under the Securities Act,
or unless otherwise agreed by the Company with written notice thereof to the Trustee and any
transfer agent for the Common Stock):





THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN 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.




THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
(A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH
PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, OR (C) IT IS
AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 UNDER THE
SECURITIES ACT AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH
RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES
ACT, ONLY (A) TO ALTRA HOLDINGS, INC. (THE “COMPANY”) OR ANY SUBSIDIARY
THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS
APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) TO
AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH,
ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S
AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C), (D) OR (F) TO REQUIRE THE




16









 







DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER
IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL
BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE EXPIRATION OF THE
APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH
IN RULE 144 UNDER THE SECURITIES ACT.



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



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




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




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



     The Trustee or such authenticating agent may authenticate any such substituted Note and
deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and, if
applicable, such authenticating agent may require. Upon the issuance of any substitute Note, the
Company or the Trustee may require the payment by the Holder of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Note that has matured or is about to mature or has been
surrendered for required repurchase or is about to be converted in accordance with Article 14 shall
become mutilated or be destroyed, lost or stolen, the Company may, in its sole discretion, instead
of issuing a substitute Note, pay or authorize the payment of or convert or authorize the
conversion of the same (without surrender thereof except in the case of a mutilated Note), as the
case may be, if the applicant for such payment or conversion shall furnish to the Company, to the
Trustee and, if applicable, to such authenticating agent such security or indemnity as may be
required by them to save each of them harmless for any loss, liability, cost or expense caused by
or connected with such substitution, and, in every case of destruction, loss or theft, evidence
satisfactory to the Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent
evidence of their satisfaction of the destruction, loss or theft of such Note and of the ownership
thereof.



17









 





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



     Section 2.07. Temporary Notes. Pending the preparation of Physical Notes, the Company may
execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon written
request of the Company, authenticate and deliver temporary Notes (printed or lithographed).
Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of
the Physical Notes but with such omissions, insertions and variations as may be appropriate for
temporary Notes, all as may be determined by the Company. Every such temporary Note shall be
executed by the Company and authenticated by the Trustee or such authenticating agent upon the same
conditions and in substantially the same manner, and with the same effect, as the Physical Notes.
Without unreasonable delay, the Company will execute and deliver to the Trustee or such
authenticating agent Physical Notes (other than any Global Note) and thereupon any or all temporary
Notes (other than any Global Note) may be surrendered in exchange therefor, at each office or
agency maintained by the Company pursuant to Section 4.02 and the Trustee or such authenticating
agent shall authenticate and deliver in exchange for such temporary Notes an equal aggregate
principal amount of Physical Notes. Such exchange shall be made by the Company at its own expense
and without any charge therefor. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits and subject to the same limitations under this Indenture as Physical
Notes authenticated and delivered hereunder.



     Section 2.08. Cancellation of Notes Paid, Converted, Etc. The Company shall cause all Notes
surrendered for the purpose of payment, repurchase, redemption, registration of transfer or
exchange or conversion, if surrendered to any Person other than the Trustee (including any of the
Company’s Agents, Subsidiaries or Affiliates), to be surrendered to the Trustee for cancellation.
All Notes delivered to the Trustee shall be canceled promptly by it, and no Notes shall be
authenticated in exchange thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall dispose of canceled Notes in accordance with its customary procedures
and, after such disposition, shall deliver a certificate of such disposition to the Company, at the
Company’s written request in a Company Order. If the Company shall acquire any of the Notes, such
acquisition shall not operate as a redemption, repurchase or satisfaction of the indebtedness
represented by such Notes unless and until the same are delivered to the Trustee for cancellation.



     Section 2.09. CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if
then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in all notices issued to
Holders as a convenience to such Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Notes or on
such notice and that reliance may be placed only on the other identification numbers printed on the
Notes. The Company will promptly notify the Trustee in writing of any change in the “CUSIP”
numbers.



     Section 2.10. Additional Notes; Repurchases. The Company may, without the consent of the
Holders and notwithstanding Section 2.01, reopen this Indenture and issue additional Notes
hereunder with the same terms and with the same CUSIP number as the Notes initially issued
hereunder in an unlimited aggregate principal amount; provided that such additional Notes must be
fungible with the Notes initially issued hereunder for U.S. federal income tax purposes. Prior to
the issuance of any such additional Notes, the Company shall deliver to the Trustee a Company
Order, an Officers’ Certificate and an Opinion of Counsel, such Officers’ Certificate and Opinion
of Counsel to cover such matters, in addition to those required by Section 18.05, as the Trustee
shall reasonably request. In addition, the Company may, to the extent permitted by law, directly
or indirectly (regardless of whether such Notes are surrendered to the Company), repurchase Notes
in the open market or otherwise, whether by the Company or its Subsidiaries or through a private or
public tender or exchange offer or through counterparties to private agreements, including by
cash-settled swaps or other derivatives. The Company shall cause any Notes so purchased to be
surrendered to the Trustee for cancellation in accordance with Section 2.08. For the avoidance of



18









 




doubt, for the purpose of the foregoing, Notes purchased pursuant to cash-settled swaps or
other derivatives shall not be considered “purchased.”




ARTICLE 3

Satisfaction and Discharge




     Section 3.01. Satisfaction and Discharge. This Indenture shall upon request of the Company
contained in an Officers’ Certificate cease to be of further effect, and the Trustee, at the
expense of the Company, shall execute instruments as reasonably requested by the Company
acknowledging satisfaction and discharge of this Indenture, when (a) (i) all Notes theretofore
authenticated and delivered (other than (x) Notes which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.06 and (y) Notes for whose payment money
has theretofore been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided in Section 4.04(d))
have been delivered to the Trustee for cancellation; or (ii) the Company has deposited with the
Trustee or delivered to Holders, as applicable, after the Notes have become due and payable,
whether at the Maturity Date, on any Redemption Date, Option Repurchase Date or Fundamental Change
Repurchase Date, or upon conversion or otherwise, cash, shares of Common Stock, or a combination
thereof, solely to satisfy the Company’s Conversion Obligation, or government obligations,
sufficient to pay all of the outstanding Notes and all other sums due and payable under this
Indenture by the Company; and (b) the Company has delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under
Section 7.06 shall survive.



ARTICLE 4

Particular Covenants of the Company




     Section 4.01. Payment of Principal and Interest. The Company covenants and agrees that it
will cause to be paid the principal (including the Option Repurchase Price or the Fundamental
Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, each of the Notes
at the places, at the respective times and in the manner provided herein and in the Notes.



     Section 4.02. Maintenance of Office or Agency. The Company will maintain an office or agency
where the Notes may be surrendered for registration of transfer or exchange or for presentation for
payment or repurchase (“Paying Agent”) or for conversion (“Conversion Agent”) and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office.



     The Company may also from time to time designate as co-Note Registrars one or more other
offices or agencies where the Notes may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency. The terms “Paying Agent” and “Conversion Agent” include any such
additional or other offices or agencies, as applicable.



     The Company hereby initially designates the Trustee as the Paying Agent, Note Registrar,
Custodian and Conversion Agent and the Corporate Trust Office shall be considered as one such
office or agency of the Company for each of the aforesaid purposes.



     Section 4.03. 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 7.09, a Trustee, so that there shall at all times be a Trustee hereunder.



19









 





     Section 4.04. Provisions as to Paying Agent. (a) If the Company shall appoint a Paying Agent
other than the Trustee, the Company will cause such Paying Agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions
of this Section 4.04:




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




          (ii) that it will give the Trustee prompt notice of any failure by the Company
to make any payment of the principal (including the Option Repurchase Price or the
Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid
interest on, the Notes when the same shall be due and payable; and




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



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



          (b) If the Company shall act as its own Paying Agent, it will, on or before each due date of
the principal (including the Option Repurchase Price or the Fundamental Change Repurchase Price, if
applicable) of, and accrued and unpaid interest on, the Notes, set aside, segregate and hold in
trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal (including
the Option Repurchase Price or the Fundamental Change Repurchase Price, if applicable) and accrued
and unpaid interest so becoming due and will promptly notify the Trustee in writing of any failure
to take such action and of any failure by the Company to make any payment of the principal
(including the Option Repurchase Price or the Fundamental Change Repurchase Price, if applicable)
of, or accrued and unpaid interest on, the Notes when the same shall become due and payable.




          (c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay, cause to be paid or deliver to the Trustee all sums or amounts held in trust by the
Company or any Paying Agent hereunder as required by this Section 4.04, such sums or amounts to be
held by the Trustee upon the trusts herein contained and upon such payment or delivery by the
Company or any Paying Agent to the Trustee, the Company or such Paying Agent shall be released from
all further liability but only with respect to such sums or amounts.




          (d) Any money and shares of Common Stock deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal (including the Option
Repurchase Price or the Fundamental Change Repurchase Price, if applicable) of, and accrued and
unpaid interest on, any Note and remaining unclaimed for two years after such principal (including
the Option Repurchase Price or the Fundamental Change Repurchase Price, if applicable) or interest
has become due and payable shall be paid to the Company on request of the Company contained in an
Officers’ Certificate, or (if then held by the Company) shall be discharged from such trust; and
the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money and shares of Common Stock, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to be 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 and shares of Common Stock
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 and shares of Common Stock
then remaining will be repaid or delivered to the Company.







20









 








     Section 4.05. Existence. Subject to Article 11, the Company will do or cause to be done all
things necessary to preserve and keep in full force and affect its corporate existence.



     Section 4.06. Rule 144A Information Requirement and Annual Reports. (a) At any time the
Company is not subject to Sections 13 or 15(d) of the Exchange Act, the Company shall, so long as
any of the Notes or any shares of Common Stock issuable upon conversion thereof shall, at such
time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities
Act, promptly provide to the Trustee and shall, upon written request, provide to any Holder,
beneficial owner or prospective purchaser of such Notes or any shares of Common Stock issued upon
conversion of such Notes, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act to facilitate the resale of such Notes or shares of Common Stock pursuant
to Rule 144A under the Securities Act. The Company shall take such further action as any Holder or
beneficial owner of such Notes or such Common Stock may reasonably request to the extent required
from time to time to enable such Holder or beneficial owner to sell such Notes or shares of Common
Stock in accordance with Rule 144A under the Securities Act, as such rule may be amended from time
to time.



          (b) The Company shall file with the Trustee within 45 calendar days after the same are
required to be filed with the Commission, copies of any documents or reports that the Company is
required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act or Section
314(a)(1) of the Trust Indenture Act (giving effect to any grace period provided by Rule 12b-25
under the Exchange Act). Any such document or report that the Company files with the Commission
via the Commission’s EDGAR system shall be deemed to be filed with the Trustee for purposes of this
Section 4.06(b) at the time such documents are filed via the EDGAR system.




          (c) Delivery of the reports and documents described in subsection (b) above to the Trustee is
for informational purposes only, and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to conclusively rely on an Officers’ Certificate). The Trustee is under no
duty to examine such reports, information or documents to ensure compliance with the provisions of
this Indenture or to ascertain the correctness or otherwise of the information or the statements
contained therein. The Trustee shall not be obligated to monitor or confirm, on a continuing basis
or otherwise, the Company’s or any other Person’s compliance with the covenants described above or
with respect to any reports or other documents filed under this Agreement.




          (d) If, at any time during the six-month period beginning on, and including, the date that is
six months after the last date of original issuance of the Notes, the Company fails to timely file
any document or report that it is required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods
thereunder and other than reports on Form 8-K) and the Company has not cured such failure to timely
file within 14 days after such failure, or the Notes are not otherwise freely tradable by Holders
other than the Company’s Affiliates (as a result of restrictions pursuant to U.S. securities law or
the terms of this Indenture or the Notes), the Company shall pay Additional Interest on the Notes.
Such Additional Interest shall accrue on the Notes at the rate of 0.25% per annum of the principal
amount of the Notes outstanding for each day during the first 90-day period beginning on, and
including, the date on which the Company’s failure to file has occurred and is continuing, and
0.50% per annum of the principal amount of Notes outstanding for each day after the 90th day, in
each case ending on the date that is one year after the last original issuance date of such Notes.
As used in this Section 4.06(d), documents or reports that the Company is required to “file” with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act does not include documents or
reports that the Company furnishes to the Commission pursuant to Section 13 or 15(d) of the
Exchange Act.




          (e) If, and for so long as, the restrictive legend on the Notes specified in Section 2.05(c)
has not been removed or the Notes are not otherwise freely tradable by Holders other than the
Company’s Affiliates (without restrictions pursuant to U.S. securities law or the terms of this
Indenture or the Notes) as of the 365th day after the last date of original issuance of the Notes,
the Company shall pay Additional Interest on the Notes at a rate equal to 0.25% per annum of the
principal amount of Notes outstanding during the first 90 days of such period, and 0.50% per annum
of the principal amount of the Notes outstanding for each day after the 90th day, until the
restrictive legend on the Notes has been removed in accordance with Section 2.05(c) and the Notes
are freely




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tradable by Holders other than the Company’s Affiliates (without restrictions pursuant to U.S.
securities law or the terms of this Indenture or the Notes).




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




          (g) The Additional Interest that is payable in accordance with Section 4.06(d) or Section
4.06(e) shall be in addition to, and not in lieu of, any Additional Interest that may be payable as
a result of the Company’s election pursuant to Section 6.03.




          (h) If Additional Interest is payable by the Company pursuant to Section 4.06(d) or Section
4.06(e), the Company shall deliver to the Trustee an Officers’ Certificate to that effect stating
(i) the amount of such Additional Interest that is payable and (ii) the date on which such
Additional Interest is payable. Unless and until a Responsible Officer of the Trustee receives at
the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no such
Additional Interest is payable. If the Company has paid Additional Interest directly to the
Persons entitled to it, the Company shall deliver to the Trustee an Officers’ Certificate setting
forth the particulars of such payment.




     Section 4.07. Stay, Extension and Usury Laws. The Company covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law or other law that would
prohibit or forgive the Company from paying all or any portion of the principal of or interest on
the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that
may affect the covenants or the performance of this Indenture; and the Company (to the extent it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not, by resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.



     Section 4.08. Compliance Certificate; Statements as to Defaults. The Company shall deliver
to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the
fiscal year ending on December 31, 2011) an Officers’ Certificate stating whether or not the
signers thereof have knowledge of any failure by the Company to comply with all conditions and
covenants then required to be performed under this Indenture and, if so, specifying each such
failure and the nature thereof.



     In addition, the Company shall deliver to the Trustee, as soon as possible, and in any event
within 60 days after the Company becomes aware of the occurrence of any Event of Default or
Default, an Officers’ Certificate setting forth the details of such Event of Default or Default,
its status and the action that the Company proposes to take with respect thereto.



     Section 4.09. Further Instruments and Acts. Upon request of the Trustee, the Company will
execute and deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purposes of this Indenture.



     Section 4.10. Furnishing Guarantees. The Company shall cause any Subsidiary formed or
acquired after the date hereof (other than any foreign Subsidiaries), that guarantees any of the
Company’s indebtedness for money borrowed or guarantees the obligations of any Restricted
Subsidiary, to become a Guarantor by causing, as promptly as practicable, but in any event not
later than the date on which such Subsidiary becomes a guarantor of any other Indebtedness of the
Company or any Subsidiary, such Subsidiary to execute and deliver to the Trustee a Guarantee in
substantially the form of the Form of Notation of Guarantee and the Company shall furnish to the
Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with, and an Opinion of Counsel
stating that, in the opinion of such counsel, all such conditions precedent have been complied
with.



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ARTICLE 5

Lists of Holders and Reports by the Company and the Trustee




     Section 5.01. Lists of Holders. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee, semi-annually, not more than 15 days after each February 15
and August 15 in each year beginning with August 15, 2011, and at such other times as the Trustee
may request in writing, within 30 days after receipt by the Company of any such request (or such
lesser time as the Trustee may reasonably request in order to enable it to timely provide any
notice to be provided by it hereunder), a list in such form as the Trustee may reasonably require
of the names and addresses of the Holders as of a date not more than 15 days (or such other date as
the Trustee may reasonably request in order to so provide any such notices) prior to the time such
information is furnished, except that no such list need be furnished so long as the Trustee is
acting as Note Registrar.



     Section 5.02. Preservation and Disclosure of Lists. The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as to the names and addresses of the
Holders contained in the most recent list furnished to it as provided in Section 5.01 or maintained
by the Trustee in its capacity as Note Registrar, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.



ARTICLE 6

Defaults and Remedies




     Section 6.01. Events of Default. The following events shall be “Events of Default” with
respect to the Notes:



          (a) default in any payment of interest on any Note when due and payable, and the default
continues for a period of 30 calendar days;




          (b) default in the payment of principal of any Note when due and payable on the Maturity Date,
upon Optional Redemption, upon required repurchase, upon declaration of acceleration or otherwise;




          (c) failure by the Company to comply with its obligation to convert the Notes in accordance
with this Indenture upon exercise of a Holder’s conversion right and such failure continues for
five business days;




          (d) failure by the Company to issue a Fundamental Change Company Notice in accordance with
Section 15.01(c) or notice of a specified corporate event in accordance with Section 14.01(b)(ii)
or Section 14.01(b)(iii), in each case when due;




          (e) failure by the Company to comply with its obligations under Article 11;




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




          (g) default by the Company or any Significant Subsidiary with respect to any mortgage,
agreement or other instrument under which there may be outstanding, or by which there may be
secured or evidenced, any indebtedness for money borrowed in excess of $20 million in the aggregate
of the Company and/or any Significant Subsidiary, whether such indebtedness now exists or shall
hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable
or (ii) constituting a failure to pay the principal or interest of any such debt when due and
payable at its stated maturity, upon required repurchase, upon declaration of acceleration or
otherwise;




          (h) a final judgment for the payment of $20 million or more (excluding any amounts covered by
insurance) rendered against the Company or any Significant Subsidiary, which judgment is not
discharged or stayed within 60 days after (i) the date on which the right to appeal thereof has
expired if no such appeal has commenced, or (ii) the date on which all rights to appeal have been
extinguished;




23









 





          (i) the Company or any Significant Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to the Company or any
such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of the Company or any such Significant Subsidiary or any substantial part of
its property, or shall consent to any such relief or to the appointment of or taking possession by
any such official in an involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally to pay its debts as they
become due; or




          (j) an involuntary case or other proceeding shall be commenced against the Company or any
Significant Subsidiary seeking liquidation, reorganization or other relief with respect to the
Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the Company or such Significant Subsidiary or
any substantial part of its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 30 consecutive days.




     Section 6.02. Acceleration; Rescission and Annulment. In case one or more Events of Default
shall have occurred and be continuing (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) of which a Responsible Officer of the Trustee has actual knowledge, then, and in each and
every such case (other than an Event of Default specified in Section 6.01(i) or Section 6.01(j)
with respect to the Company or any of its Significant Subsidiaries), unless the principal of all of
the Notes shall have already become due and payable, either the Trustee or the Holders of at least
25% in aggregate principal amount of the Notes then outstanding determined in accordance with
Section 8.04, by notice in writing to the Company (and to the Trustee if given by Holders), may,
and the trustee at the request of such Holders shall, declare 100% of the principal of, and accrued
and unpaid interest on, all the Notes to be due and payable immediately, and upon any such
declaration the same shall become and shall automatically be immediately due and payable, anything
in this Indenture or in the Notes contained to the contrary notwithstanding. If an Event of
Default specified in Section 6.01(i) or Section 6.01(j) with respect to the Company or any of its
Significant Subsidiaries occurs and is continuing, the principal of, and accrued and unpaid
interest on, all Notes shall be automatically and immediately due and payable.



     This provision, however, is subject to the conditions that if, at any time after the principal
of the Notes shall have been so declared due and payable, and before any judgment or decree for the
payment of the monies due shall have been obtained or entered as hereinafter provided, the Company
shall pay or shall deposit with the Trustee a sum sufficient to pay installments of accrued and
unpaid interest upon all Notes and the principal of any and all Notes that shall have become due
otherwise than by acceleration (with interest on overdue installments of accrued and unpaid
interest to the extent that payment of such interest is enforceable under applicable law, and on
such principal at the rate borne by the Notes plus one percent at such time) and amounts due to the
Trustee pursuant to Section 7.06, and if (1) rescission would not conflict with any judgment or
decree of a court of competent jurisdiction and (2) any and all existing Events of Default under
this Indenture, other than the nonpayment of the principal of and accrued and unpaid interest, if
any, on Notes that shall have become due solely by such acceleration, shall have been cured or
waived pursuant to Section 6.09, then and in every such case the Holders of a majority in aggregate
principal amount of the Notes then outstanding, by written notice to the Company and to the
Trustee, may waive all Defaults or Events of Default with respect to the Notes and rescind and
annul such declaration and its consequences and 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 or rescission and annulment shall extend to or shall affect any subsequent
Default or Event of Default, or shall impair any right consequent thereon. Notwithstanding
anything to the contrary herein, no such waiver or rescission and annulment shall extend to or
shall affect any Default or Event of Default resulting from (i) the nonpayment of the principal of,
or accrued and unpaid interest on, any Notes, (ii) a failure to repurchase any Notes when required
or (iii) a failure to pay or deliver, as the case may be, the consideration due upon conversion of
the Notes.



     Section 6.03. Additional Interest. Notwithstanding anything in this Indenture or in the
Notes to the contrary, to the extent the Company elects, the sole remedy for an Event of Default
relating to the Company’s failure to comply with its obligations as set forth in Section 4.06(b)
shall for the 365 days immediately following the



24









 




occurrence of such an Event of Default consist exclusively of the right to receive Additional
Interest on the Notes at a rate equal to 0.50% per annum of the principal amount of the Notes
outstanding. Additional Interest payable pursuant to this Section 6.03 shall be in addition to, not
in lieu of, any Additional Interest payable pursuant to Section 4.06(d) or Section 4.06(e). If the
Company so elects, such Additional Interest shall be payable in the same manner and on the same
dates as ordinary interest on the Notes. Such Additional Interest shall accrue from, and
including, the date on which such Event of Default first occurs, to, but excluding, the 365th day
thereafter (or such earlier date on which such Event of Default shall have been cured or waived).
On the 366th day after such Event of Default (if the Event of Default relating to the Company’s
failure to file is not cured or waived prior to such 366th day), such Additional Interest shall
cease to further accrue and the Notes will be subject to acceleration as provided in Section 6.02.
In the event the Company does not elect to pay Additional Interest following an Event of Default in
accordance with this Section 6.03, the Notes shall be subject to acceleration as provided in
Section 6.02.




     In order to elect to pay Additional Interest as the sole remedy during the first 365 days
after the occurrence of any Event of Default described in the immediately preceding paragraph, the
Company must notify all Holders of the Notes, the Trustee and the Paying Agent of such election
prior to the beginning of such 365-day period. Upon the failure to timely give such notice, the
Notes shall be immediately subject to acceleration as provided in Section 6.02.



     Section 6.04. Payments of Notes on Default; Suit Therefor. If an Event of Default described
in clause (a) or (b) of Section 6.01 shall have occurred, the Company shall, upon demand of the
Trustee, pay to it, for the benefit of the Holders of the Notes, the whole amount then due and
payable on the Notes for principal and interest, if any, and, in addition thereto, such further
amount as shall be sufficient to cover any amounts due to the Trustee under Section 7.06. If the
Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and
as trustee of an express trust, may institute a judicial proceeding for the collection of the sums
so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the
same against the Company or any other obligor upon the Notes and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of the Company or any other
obligor upon the Notes, wherever situated.



     In the event there shall be pending proceedings for the bankruptcy or for the reorganization
of the Company or any other obligor on the Notes under Title 11 of the United States Code, or any
other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or taken possession of
the Company or such other obligor, the property of the Company or such other obligor, or in the
event of any other judicial proceedings relative to the Company or such other obligor upon the
Notes, or to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section 6.04, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal and accrued and unpaid interest, if any, in respect of the Notes, and, in case
of any judicial proceedings, to file such proofs of claim and other papers or documents and to take
such other actions as it may deem necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial proceedings relative
to the Company or any other obligor on the Notes, its or their creditors, or its or their property,
and to collect and receive any monies or other property payable or deliverable on any such claims,
and to distribute the same after the deduction of any amounts due the Trustee under Section 7.06;
and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian or
similar official is hereby authorized by each of the Holders to make such payments to the Trustee,
as administrative expenses, and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for reasonable
compensation, expenses, advances and disbursements, including agents and counsel fees, and
including any other amounts due to the Trustee under Section 7.06, incurred by it up to the date of
such distribution. To the extent that such payment of reasonable compensation, expenses, advances
and disbursements out of the estate in any such proceedings shall be denied for any reason, payment
of the same shall be secured by a lien on, and shall be paid out of, any and all distributions,
dividends, monies, securities and other property that the Holders of the Notes may be entitled to
receive in such proceedings, whether in liquidation or under any plan of reorganization or
arrangement or otherwise.



25









 





     Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Holder 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.



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



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



     In case the Trustee shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned because of such waiver or rescission and
annulment or for any other reason or shall have been determined adversely to the Trustee, then and
in every such case the Company, the Holders, and the Trustee shall, subject to any determination in
such proceeding, be restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the Company, the Holders, and the Trustee shall continue as though
no such proceeding had been instituted.



     Section 6.05. Application of Monies Collected by Trustee. Any monies collected by the
Trustee pursuant to this Article 6 with respect to the Notes shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of such monies, upon
presentation of the several Notes, and stamping thereon the payment, if only partially paid, and
upon surrender thereof, if fully paid:



     First, to the payment of all amounts due the Trustee under Section 7.06;



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



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



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



     Section 6.06. Proceedings by Holders. Except to enforce the right to receive payment of
principal (including, if applicable, the Fundamental Change Repurchase Price) or interest when due,
or the right to receive payment or delivery of the consideration due upon conversion, no Holder of
any Note shall have any right by virtue of or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon



26









 




or under or with respect to this Indenture, or for the appointment of a receiver, trustee,
liquidator, custodian or other similar official, or for any other remedy hereunder, unless:




          (a) such Holder previously shall have given to the Trustee written notice of an Event of
Default and of the continuance thereof, as hereinbefore provided;




          (b) Holders of at least 25% in aggregate principal amount of the Notes then outstanding shall
have made written request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder;




          (c) such Holders shall have offered to the Trustee such security or indemnity satisfactory to
it against any loss, liability or expense that may be incurred therein or thereby;




          (d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or proceeding; and




          (e) no direction that, in the opinion of the Trustee, is inconsistent with such written
request shall have been given to the Trustee by the Holders of a majority in principal amount of
the Notes outstanding within such 60-day period pursuant to Section 6.09,



it being understood and intended, and being expressly covenanted by the taker and Holder of every
Note with every other taker and Holder and the Trustee that no one or more Holders shall have any
right in any manner whatever by virtue of or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holder, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and common benefit of all Holders
(except as otherwise provided herein). For the protection and enforcement of this Section 6.06,
each and every Holder and the Trustee shall be entitled to such relief as can be given either at
law or in equity.




     Notwithstanding any other provision of this Indenture and any provision of any Note, the right
of any Holder to receive payment or delivery, as the case may be, of (x) the principal (including
the Option Repurchase Price or the Fundamental Change Repurchase Price, if applicable) of, (y)
accrued and unpaid interest on, and (z) the consideration due upon conversion of, such Note, on or
after the respective due dates expressed or provided for in such Note or in this Indenture, or to
institute suit for the enforcement of any such payment or deliver, as the case may be, on or after
such respective dates against the Company shall not be impaired or affected without the consent of
such Holder.



     Section 6.07. Proceedings by Trustee. In case of an Event of Default the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either
by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.



     Section 6.08. Remedies Cumulative and Continuing. Except as provided in the last paragraph
of Section 2.06, all powers and remedies given by this Article 6 to the Trustee or to the Holders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the Holders of the Notes, by judicial
proceedings or otherwise, to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the
Notes to exercise any right or power accruing upon any Default or Event of Default shall impair any
such right or power, or shall be construed to be a waiver of any such Default or Event of Default
or any acquiescence therein; and, subject to the provisions of Section 6.06, every power and remedy
given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the Holders.



27









 





     Section 6.09. Direction of Proceedings and Waiver of Defaults by Majority of Holders. The
Holders of a majority in aggregate principal amount of the Notes at the time outstanding determined
in accordance with Section 8.04 shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to Notes; provided, however, that (a) such direction shall
not be in conflict with any rule of law or with this Indenture, and (b) the Trustee may take any
other action deemed proper by the Trustee that is not inconsistent with such direction. The
Trustee may refuse to follow any direction that it determines is unduly prejudicial to the rights
of any other Holder or that would involve the Trustee in personal liability. The Holders of a
majority in aggregate principal amount of the Notes at the time outstanding determined in
accordance with Section 8.04 may on behalf of the Holders of all of the Notes waive any past
Default or Event of Default hereunder and its consequences, except (i) a default in the payment of
accrued and unpaid interest, if any, on, or the principal (including any Fundamental Change
Repurchase Price) of, the Notes when due that has not been cured pursuant to the provisions of
Section 6.01, (ii) a failure by the Company to deliver the consideration due upon conversion of the
Notes or (iii) a default in respect of a covenant or provision hereof which under Article 10 cannot
be modified or amended without the consent of each Holder of an outstanding Note affected. Upon
any such waiver the Company, the Trustee and the Holders of the Notes shall be restored to their
former positions and rights hereunder; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event
of Default hereunder shall have been waived as permitted by this Section 6.09, said Default or
Event of Default shall for all purposes of the Notes and this Indenture be deemed to have been
cured and to be not continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereon.



     Section 6.10. Notice of Defaults. The Trustee shall, within 90 days after its actual
knowledge of the occurrence and continuance of a Default, mail to all Holders as the names and
addresses of such Holders appear upon the Note Register, notice of all Defaults known to a
Responsible Officer, unless such Defaults shall have been cured or waived before the giving of such
notice; provided that, except in the case of a Default in the payment of the principal of
(including the Option Repurchase Price or the Fundamental Change Repurchase Price, if applicable),
or accrued and unpaid interest on, any of the Notes or a Default in the payment or delivery of the
consideration due upon conversion, the Trustee shall be protected in withholding such notice if and
so long as a committee of Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders.



     Section 6.11. Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder
of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in its
discretion, require, in any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such suit and that such court
may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; provided that the provisions of this Section 6.11
(to the extent permitted by law) 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 Notes at the time outstanding determined in accordance with Section 8.04, or to any
suit instituted by any Holder for the enforcement of the payment of the principal of or accrued and
unpaid interest, if any, on any Note (including, but not limited to, the Fundamental Change
Repurchase Price with respect to the Notes being repurchased as provided in this Indenture) on or
after the due date expressed or provided for in such Note or to any suit for the enforcement of the
right to convert any Note in accordance with the provisions of Article 14.



ARTICLE 7

Concerning the Trustee




     Section 7.01. Duties of Trustee




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




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






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



               (ii) in the absence of bad faith on its part, the Trustee may conclusively
rely, without investigation, as to the truth or the statements and the correctness of the opinions
expressed therein, upon and statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture but need not verify the contents thereof.



          However, 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 examine the certificates
and opinions to determine whether or not they conform on their face to the requirements of this
Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other
facts stated therein).




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




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



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



               (iii) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant to Article 6.



          (d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to this paragraphs (a), (b) and (c) of
Section 7.01 and Section 7.02.




          (e) No provision of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur any liability. The Trustee shall be under no obligation to
exercise any of its rights and powers under this Indenture at the request of any Holders, pursuant
to the provisions of this Indenture, including, without limitation, Section 6.05, unless such
Holder’s shall have offered to the Trustee security and indemnity satisfactory to it against any
loss, liability or expense which might be incurred by it in compliance with such request or
direction.




          (f) The Trustee shall not be liable for interest on any money received by it
except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee
need not be segregated from other funds except to the extent required by law.




     Section 7.02. Rights of Trustee.



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




          (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee
may consult with counsel of its own selection and the advice of such counsel and Opinions of
Counsel with respect to legal matters relating to this Indenture and the Notes shall be full and
complete authorization and protection from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.





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          (c) The Trustee may act through its attorneys, accountants, experts and such other
professionals as the Trustee deems necessary, advisable or appropriate and shall not be responsible
for the misconduct or negligence of any attorney, accountant, expert or other such professional
appointed with due care.




          (d) The Trustee shall not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within the rights or powers conferred upon it by this
Indenture.




          (e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company shall be sufficiently evidenced by a written order signed by one Officer
of the Company.




          (f) The Trustee shall not be charged with knowledge of any Default or Event of Default with
respect to the Notes, unless either (1) a Responsible Officer shall have actual knowledge of such
Default or Event of Default or (2) written notice of such Default or Event of Default shall have
been given to the Trustee by the Company or by any Holder of the Notes. Absent such actual
knowledge or receipt of such notice, the Trustee may conclusively assume that there is no Default
or Event of Default.




          (g) 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 and
other Person employed to act hereunder.




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




          (i) The Trustee may request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture.




          (j) The Trustee shall not be liable for any action taken, suffered, or omitted to be taken 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.




     Section 7.03. No Responsibility for Recitals, Etc. The recitals contained herein and in the
Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the Company of any Notes
or the proceeds of any Notes authenticated and delivered by the Trustee in conformity with the
provisions of this Indenture.



     Section 7.04. Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note
Registrar May Own Notes. The Trustee, any Paying Agent, any Conversion Agent, Bid Solicitation
Agent or Note Registrar, in its individual or any other capacity, may become the owner or pledgee
of Notes with the same rights it would have if it were not the Trustee, Paying Agent, Conversion
Agent, Bid Solicitation Agent or Note Registrar.



     Section 7.05. Monies and Shares of Common Stock to Be Held in Trust. All monies and shares
of Common Stock 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 and shares of Common Stock 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 or shares of Common Stock
received by it hereunder except as may be agreed from time to time by the Company and the Trustee.



     Section 7.06. Compensation and Expenses of Trustee. The Company covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be entitled to, compensation for all
services rendered by it hereunder in any capacity (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) as mutually agreed to in
writing between the Trustee and the Company, and the Company will pay or



30









 




reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in accordance with any of the provisions of this
Indenture in any capacity thereunder (including the reasonable compensation and the expenses and
disbursements of its agents and counsel and of all Persons not regularly in its employ) except any
such expense, disbursement or advance as shall have been caused by its negligence, willful
misconduct or bad faith. The Company also covenants to indemnify the Trustee in any capacity under
this Indenture and any other document or transaction entered into in connection herewith and its
directors, officers, employees, agents and any authenticating agent for, and to hold them harmless
against, any loss, claim, damage, liability or expense incurred without negligence, willful
misconduct or bad faith on the part of the Trustee, its officers, directors, agents or employees,
or such agent or authenticating agent, as the case may be, and arising out of or in connection with
the acceptance or administration of this trust or in any other capacity hereunder, including the
costs and expenses of defending themselves against any claim of liability in the premises,
including costs of investigation, counsel fees and expenses, damages judgments and amounts paid in
settlement. The obligations of the Company under this Section 7.06 to compensate or indemnify the
Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall be
secured by a lien to which the Notes are hereby made subordinate on all money or property held or
collected by the Trustee, except, subject to the effect of Section 6.05, funds held in trust
herewith for the benefit of the Holders of particular Notes. The Trustee’s right to receive
payment of any amounts due under this Section 7.06 shall not be subordinate to any other liability
or indebtedness of the Company. The obligation of the Company under this Section 7.06 shall
survive the satisfaction and discharge of this Indenture and the earlier resignation or removal or
the Trustee. The Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld. The indemnification provided in this Section 7.06 shall extend
to the officers, directors, agents and employees of the Trustee.




     Without prejudice to any other rights available to the Trustee under applicable law, when the
Trustee and its agents and any authenticating agent incur expenses or render services after an
Event of Default specified in Section 6.01(i) or Section 6.01(j) occurs, the expenses and the
compensation for the services are intended to constitute expenses of administration under any
bankruptcy, insolvency or similar laws.



     Section 7.07. Officers’ Certificate as Evidence. Except as otherwise provided in Section
7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or omitting any
action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence, willful misconduct, recklessness and bad faith on
the part of the Trustee, be deemed to be conclusively proved and established by an Officers’
Certificate delivered to the Trustee, and such Officers’ Certificate, in the absence of negligence,
willful misconduct, recklessness and bad faith on the part of the Trustee, shall be full warrant to
the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the
faith thereof.



     Section 7.08. Eligibility of Trustee. There shall at all times be a Trustee hereunder which
shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section, 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, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.



     Section 7.09. Resignation or Removal of Trustee. (a) The Trustee may at any time resign by
giving written notice of such resignation to the Company and by mailing notice thereof to the
Holders at their addresses as they shall appear on the Note Register. Upon receiving such notice
of resignation, the Company shall promptly appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee
shall have been so appointed and have accepted appointment within 60 days after the mailing of such
notice of resignation to the Holders, the resigning Trustee may, upon ten Business Days’ notice to
the Company and the Holders, petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least
six months may, subject to the provisions of Section 6.11, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.



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





          (i) the Trustee shall cease to be eligible in accordance with the provisions of
Section 7.08 and shall fail to resign after written request therefor by the Company
or by any such Holder, or




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


then, in either case, the Company may by a Board Resolution remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 6.11, any Holder who has been a bona
fide holder of a Note or Notes for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor trustee.




          (c) The Holders of a majority in aggregate principal amount of the Notes at the time
outstanding, as determined in accordance with Section 8.04, may at any time remove the Trustee and
nominate a successor trustee that shall be deemed appointed as successor trustee unless within ten
days after notice to the Company of such nomination the Company objects thereto, in which case the
Trustee so removed or any Holder, upon the terms and conditions and otherwise as in Section 7.09(a)
provided, may petition any court of competent jurisdiction for an appointment of a successor
trustee.




          (d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant
to any of the provisions of this Section 7.09 shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 7.10.




     Section 7.10. Acceptance by Successor Trustee. Any successor trustee appointed as provided
in Section 7.09 shall execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally named as trustee
herein; but, nevertheless, on the written request of the Company or of the successor trustee, the
trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of
Section 7.06, execute and deliver an instrument transferring to such successor trustee all the
rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee,
the Company shall execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien to which the Notes are hereby made subordinate on all money or
property held or collected by such trustee as such, except, subject to Section 6.05, for funds held
in trust for the benefit of Holders of particular Notes, to secure any amounts then due it pursuant
to the provisions of Section 7.06.



     No successor trustee shall accept appointment as provided in this Section 7.10 unless at the
time of such acceptance such successor trustee shall be eligible under the provisions of Section
7.08.



     Upon acceptance of appointment by a successor trustee as provided in this Section 7.10, each
of the Company and the successor trustee, at the written direction and at the expense of the
Company shall mail or cause to be mailed notice of the succession of such trustee hereunder to the
Holders at their addresses as they shall appear on the Note Register. If the Company fails to mail
such notice within ten days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.



     Section 7.11. Succession by Merger, Etc. Any corporation or other entity into which the
Trustee may be merged or converted or with which it may be consolidated, or any corporation or
other entity resulting from any



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merger, conversion or consolidation to which the Trustee shall be a party, or any corporation
or other entity succeeding to all or substantially all of the corporate trust business of the
Trustee (including the administration of this Indenture), shall be the successor to the Trustee
hereunder without the execution or filing of any paper or any further act on the part of any of the
parties hereto; provided that in the case of any corporation or other entity succeeding to all or
substantially all of the corporate trust business of the Trustee such corporation or other entity
shall be eligible under the provisions of Section 7.08.




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



     Section 7.12. Trustee’s Application for Instructions from the Company. Any application by
the Trustee for written instructions from the Company (other than with regard to any action
proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders
of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing any
action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective. The Trustee shall not
be liable for any action taken by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in such application (which date shall
not be less than three Business Days after the date any officer that the Company has indicated to
the Trustee should receive such application actually receives such application, unless any such
officer shall have consented in writing to any earlier date), unless, prior to taking any such
action (or the effective date in the case of any omission), the Trustee shall have received written
instructions in accordance with this Indenture in response to such application specifying the
action to be taken or omitted.



ARTICLE 8

Concerning the Holders




     Section 8.01. Action by Holders. Whenever in this Indenture it is provided that the Holders
of a specified percentage in aggregate principal amount of the Notes may take any action (including
the making of any demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action, the Holders of such
specified percentage have joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Holders in person or by agent or proxy appointed in
writing, or (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly
called and held in accordance with the provisions of Article 9, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of Holders. Whenever the Company
or the Trustee solicits the taking of any action by the Holders of the Notes, the Company or the
Trustee may fix, but shall not be required to, in advance of such solicitation, a date as the
record date for determining Holders entitled to take such action. The record date if one is
selected shall be not more than fifteen days prior to the date of commencement of solicitation of
such action.



     Section 8.02. Proof of Execution by Holders. Subject to the provisions of Section 7.01,
Section 7.02 and Section 9.05, proof of the execution of any instrument by a Holder or its agent or
proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may
be prescribed by the Trustee or in such manner as shall be reasonably satisfactory to the Trustee.
The holding of Notes shall be proved by the Note Register or by a certificate of the Note
Registrar. The record of any Holders’ meeting shall be proved in the manner provided in Section
9.06.



     Section 8.03. Who Are Deemed Absolute Owners. The Company, the Trustee, any authenticating
agent, any Paying Agent, any Conversion Agent and any Note Registrar may deem the Person in whose
name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute
owner of such Note (whether or not such



33









 




Note shall be overdue and notwithstanding any notation of ownership or other writing thereon
made by any Person other than the Company or any Note Registrar) for the purpose of receiving
payment of or on account of the principal of and (subject to Section 2.03) accrued and unpaid
interest on such Note, for conversion of such Note and for all other purposes; and neither the
Company nor the Trustee nor any Paying Agent nor any Conversion Agent nor any Note Registrar shall
be affected by any notice to the contrary. All such payments so made to any Holder for the time
being, or upon its order, shall be valid, and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for monies payable upon any such Note. Notwithstanding
anything to the contrary in this Indenture or the Notes following an Event of Default, any Holder
of a beneficial interest in a Global Note may directly enforce against the Company such Holder’s
right to exchange such beneficial interest for a Note in certificated form in accordance with the
provisions of this Indenture.




     Section 8.04. Company-Owned Notes Disregarded. In determining whether the Holders of the
requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or
other action under this Indenture, Notes that are owned by the Company or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the Company
shall be disregarded and deemed not to be outstanding for the purpose of any such determination;
provided that for the purposes of determining whether the Trustee shall be protected in relying on
any such direction, consent, waiver or other action only Notes that a Responsible Officer knows are
so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be
regarded as outstanding for the purposes of this Section 8.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right to so act with respect to such Notes and that the
pledgee is not the Company or a Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company. In the case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officers’
Certificate listing and identifying all Notes, if any, known by the Company to be owned or held by
or for the account of any of the above described Persons; and, subject to Section 7.01, the Trustee
shall be entitled to accept such Officers’ Certificate as conclusive evidence of the facts therein
set forth and of the fact that all Notes not listed therein are outstanding for the purpose of any
such determination.



     Section 8.05. Revocation of Consents; Future Holders Bound. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by
the Holders of the percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action, any Holder of a Note that is shown by the evidence to be
included in the Notes the Holders of which have consented to such action may, by filing written
notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in
Section 8.02, revoke such action so far as concerns such Note. Except as aforesaid, any such
action taken by the Holder of any Note shall be conclusive and binding upon such Holder and upon
all future Holders and owners of such Note and of any Notes issued in exchange or substitution
therefor or upon registration of transfer thereof, irrespective of whether any notation in regard
thereto is made upon such Note or any Note issued in exchange or substitution therefor or upon
registration of transfer thereof.



ARTICLE 9

Holders’ Meetings




     Section 9.01. Purpose of Meetings. A meeting of Holders may be called at any time and from
time to time pursuant to the provisions of this Article 9 for any of the following purposes:



          (a) to give any notice to the Company or to the Trustee or to give any directions to the
Trustee permitted under this Indenture, or to consent to the waiving of any Default or Event of
Default hereunder and its consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article 6;




          (b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of
Article 7;




          (c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to
the provisions of Section 10.02; or







34









 








          (d) to take any other action authorized to be taken by or on behalf of the Holders of any
specified aggregate principal amount of the Notes under any other provision of this Indenture or
under applicable law.




     Section 9.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of
Holders to take any action specified in Section 9.01, to be held at such time and at such place as
the Trustee shall determine. Notice of every meeting of the Holders, setting forth the time and
the place of such meeting and in general terms the action proposed to be taken at such meeting and
the establishment of any record date pursuant to Section 8.01, shall be mailed to Holders of such
Notes at their addresses as they shall appear on the Note Register. Such notice shall also be
mailed to the Company. Such notices shall be mailed not less than twenty nor more than ninety days
prior to the date fixed for the meeting.



     Any meeting of Holders shall be valid without notice if the Holders of all Notes then
outstanding are present in person or by proxy or if notice is waived before or after the meeting by
the Holders of all Notes outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.



     Section 9.03. Call of Meetings by Company or Holders. In case at any time the Company,
pursuant to a Board Resolution, or the Holders of at least 10% in aggregate principal amount of the
Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by written
request setting forth in reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after receipt of such
request, then the Company or such Holders may determine the time and the place for such meeting and
may call such meeting to take any action authorized in Section 9.01, by mailing notice thereof as
provided in Section 9.02.



     Section 9.04. Qualifications for Voting. To be entitled to vote at any meeting of Holders a
Person shall (a) be a Holder of one or more Notes on the record date pertaining to such meeting or
(b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes on
the record date pertaining to such meeting. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.



     Section 9.05. Regulations. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders,
in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters concerning the conduct
of the meeting as it shall think fit.



     The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by Holders as provided in Section 9.03,
in which case the Company or the Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Holders of a majority in principal amount of the Notes represented
at the meeting and entitled to vote at the meeting.



     Subject to the provisions of Section 8.04, at any meeting of Holders each Holder or proxy
holder shall be entitled to one vote for each $1,000 principal amount of Notes held or represented
by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any
Note challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding.
The chairman of the meeting shall have no right to vote other than by virtue of Notes held by it or
instruments in writing as aforesaid duly designating it as the proxy to vote on behalf of other
Holders. Any meeting of Holders duly called pursuant to the provisions of Section 9.02 or Section
9.03 may be adjourned from time to time by the Holders of a majority of the aggregate principal
amount of Notes represented at the meeting, whether or not constituting a quorum, and the meeting
may be held as so adjourned without further notice.



     Section 9.06. Voting. The vote upon any resolution submitted to any meeting of Holders shall
be by written ballot on which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the



35









 




outstanding principal amount of the Notes held or represented by them. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of votes on any vote
by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was mailed as provided in
Section 9.02. The record shall show the principal amount of the Notes voting in favor of or
against any resolution. The record shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company
and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting.




     Any record so signed and verified shall be conclusive evidence of the matters therein stated.



     Section 9.07. No Delay of Rights by Meeting. Nothing contained in this Article 9 shall be
deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under
any of the provisions of this Indenture or of the Notes.



ARTICLE 10

Supplemental Indentures




     Section 10.01. Supplemental Indentures Without Consent of Holders. The Company, when
authorized by the resolutions of the Board of Directors and the Trustee, at the Company’s expense,
may from time to time and at any time enter into an indenture or indentures supplemental hereto for
one or more of the following purposes:



          (a) to cure any ambiguity, or correct any omission, defect or inconsistency in this Indenture,
so long as such action will not adversely affect the interests of Holders of the Notes; provided
that any such supplemental indenture made solely to conform the provisions of this Indenture to the
Offering Memorandum shall be deemed not to adversely affect the interests of Holders of the Notes;




          (b) to provide for the assumption by a Successor Company of the obligations of the Company
under this Indenture pursuant to Article 11;




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




          (d) to secure the Notes;




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




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




          (g) fix a Specified Dollar Amount that shall apply to all future conversions of Notes and
provide that the Company shall be required to satisfy its Conversion Obligations by paying cash
with respect to such Specified Dollar Amount;




          (h) to provide for a successor Trustee; or




          (i) release any Guarantor except as provided in Article 17 hereof.




     Upon the written request of the Company and subject to Section 10.05, the Trustee is hereby
authorized to join with the Company in the execution of any such supplemental indenture, to make
any further appropriate agreements and stipulations that may be therein contained, but the Trustee
shall not be obligated to, but may in its



36









 




discretion, enter into any supplemental indenture that affects the Trustee’s own rights,
duties, immunities or liabilities under this Indenture or otherwise.




     Any supplemental indenture authorized by the provisions of this Section 10.01 may be executed
by the Company and the Trustee without the consent of the Holders of any of the Notes at the time
outstanding, notwithstanding any of the provisions of Section 10.02.



     Section 10.02. Supplemental Indentures with Consent of Holders. With the consent (evidenced
as provided in Article 8) of the Holders of at least a majority in aggregate principal amount of
the Notes then outstanding (determined in accordance with Article 8 and including, without
limitation, consents obtained in connection with a repurchase of, or tender offer or exchange offer
for, Notes), the Company, when authorized by the resolutions of the Board of Directors and the
Trustee, at the Company’s expense, may from time to time and at any time enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or any supplemental indenture or of
modifying in any manner the rights of the Holders; provided, however, that, without the consent of
each Holder of an outstanding Note affected, no such supplemental indenture shall:



          (a) reduce the rate of or extend the stated time for payment of interest on any Note;




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




          (c) make any change that impairs or adversely affects the right of a Holder to convert any
Note or the Conversion Rate thereof;




          (d) reduce the Redemption Price, Option Repurchase Price or Fundamental Change Repurchase
Price of any Note or amend or modify in any manner adverse to the Holders the Company’s obligation
to make such payments, whether through an amendment or waiver of provisions in the Indenture
(including the definitions contained therein) or otherwise;




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




          (f) change the ranking of the Notes;




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




          (h) make any change in this Article 10 that requires each Holder’s consent or in the waiver
provisions in Section 6.01 or Section 6.09.




     Upon the written request of the Company, and upon the filing with the Trustee of evidence of
the consent of Holders as aforesaid and subject to Section 10.05, the Trustee shall join with the
Company in the execution of such supplemental indenture unless such supplemental indenture affects
the Trustee’s own rights, duties, immunities or liabilities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.



     The consent of the Holders is not necessary under this Section 10.02 to approve the particular
form of any proposed supplemental indenture. It is sufficient if such consent approves the
substance thereof. After any such supplemental indenture becomes effective, the Company shall mail
to the Holders a notice briefly describing such supplemental indenture. However, the failure to
give such notice to all the Holders, or any defect in the notice, will not impair or affect the
validity of the supplemental indenture.



     Section 10.03. Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article 10, this Indenture shall be and be deemed to
be modified and amended in accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this



37









 




Indenture of the Trustee, the Company and the Holders shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications and amendments and
all the terms and conditions of any such supplemental indenture shall be and be deemed to be part
of the terms and conditions of this Indenture for any and all purposes.




     Section 10.04. Notation on Notes. Notes authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article 10 may, at the Company’s
discretion and expense, bear a notation as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Notes so modified as to conform, in the opinion
of the Board of Directors, to any modification of this Indenture contained in any such supplemental
indenture may, at the Company’s expense, be prepared and executed by the Company, authenticated by
the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to Section 18.10)
and delivered in exchange for the Notes then outstanding, upon surrender of such Notes then
outstanding.



     Section 10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee. In
addition to the documents required by Section 18.05, the Trustee shall receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article 10 and is permitted or
authorized by the Indenture.



ARTICLE 11

Consolidation, Merger, Sale, Conveyance and Lease




     Section 11.01. Company May Consolidate, Etc. on Certain Terms. Subject to the provisions of
Section 11.02, the Company shall not consolidate with, merge with or into, or sell, convey,
transfer or lease all or substantially all of its properties and assets to another Person, unless:



          (a) the resulting, surviving or transferee Person (the “Successor Company”), if not the
Company, shall be a corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia, and the Successor Company (if not the
Company) shall expressly assume, by supplemental indenture all of the obligations of the Company
under the Notes and this Indenture; and




          (b) immediately after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing under this Indenture.




     For purposes of this Section 11.01, the sale, conveyance, transfer or lease of all or
substantially all of the properties and assets of one or more Subsidiaries of the Company to
another Person, which properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the Company on a
consolidated basis, shall be deemed to be the sale, conveyance, transfer or lease of all or
substantially all of the properties and assets of the Company to another Person.



     Section 11.02. Successor Corporation to Be Substituted. In case of any such consolidation,
merger, sale, conveyance, transfer or lease and upon the assumption by the Successor Company, by
supplemental indenture, executed and delivered to the Trustee, of the due and punctual payment of
the principal of and accrued and unpaid interest on all of the Notes, the due and punctual delivery
or payment, as the case may be, of any consideration due upon conversion of the Notes and the due
and punctual performance of all of the covenants and conditions of this Indenture to be performed
by the Company, such Successor Company shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein as the party of the first part, except in the case
of a lease of all or substantially all of the Company’s properties and assets. Such Successor
Company thereupon may cause to be signed, and may issue either in its own name or in the name of
the Company any or all of the Notes issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order of such Successor Company instead
of the Company and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver, or cause to be authenticated and
delivered, any Notes that previously shall have been signed and delivered by the Officers of the
Company to the Trustee for authentication, and any Notes that such Successor Company thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued
shall in all respects have the same legal rank and benefit under this Indenture as the Notes
theretofore or thereafter issued in accordance with the terms of this Indenture as though all of
such Notes had been issued at the date of the execution hereof. In the event of any such



38









 




consolidation, merger, sale, conveyance or transfer (but not in the case of a lease), upon
compliance with this Article 11 the Person named as the “Company” in the first paragraph of this
Indenture (or any successor that shall thereafter have become such in the manner prescribed in this
Article 11) may be dissolved, wound up and liquidated at any time thereafter and, except in the
case of a lease, such Person shall be released from its liabilities as obligor and maker of the
Notes and from its obligations under this Indenture.




     In case of any such consolidation, merger, sale, conveyance, transfer or lease, such changes
in phraseology and form (but not in substance) may be made in the Notes thereafter to be issued as
may be appropriate.



     Section 11.03. Opinion of Counsel to Be Given to Trustee. No consolidation, merger, sale,
conveyance, transfer or lease shall be effective unless the Trustee shall receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or lease and any such assumption and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture, complies with the
provisions of this Article 11.



ARTICLE 12

Immunity of Incorporators, Stockholders, Officers and Directors




     Section 12.01. Indenture and Notes Solely Corporate Obligations. No recourse for the payment
of the principal of or accrued and unpaid interest on any Note, nor for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement
of the Company in this Indenture or in any supplemental indenture or in any Note, nor because of
the creation of any indebtedness represented thereby, shall be had against any incorporator,
stockholder, employee, agent, Officer or director or Subsidiary, as such, past, present or future,
of the Company or of any successor corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a consideration for,
the execution of this Indenture and the issue of the Notes.



ARTICLE 13

Contingent Interest




     Section 13.01. Contingent Interest.



          (a) Contingent interest on the Notes (“Contingent Interest”) shall accrue and the Company
shall pay such Contingent Interest to the Holders beginning with the Interest Payment Period
commencing March 1, 2018, during any Interest Payment Period with respect to which the average
Trading Price for the five Trading Days ending on and including the third Trading Day immediately
preceding the first day such Interest Payment Period is greater than or equal to 120% of the
principal amount of Notes, in which case the Contingent Interest payable on each $1,000 principal
amount of the Notes for such Interest Payment Period shall be equal to 0.375% per annum of such
average Trading Price during such five Trading Day reference period; and




          (b) The Company shall provide prompt written notice to the Bid Solicitation Agent identifying
the three independent nationally recognized securities dealers referred to in the definition of
Trading Price, along with appropriate contact information for each. For purposes of this Article
13, if the Bid Solicitation Agent cannot reasonably obtain at least one bid for $2,000,000
principal amount of Notes from an independent nationally recognized securities dealer when
determining the Trading Price, then the Trading Price of the Notes on any date of determination
will equal the product of (i) the applicable Conversion Rate for the Notes and (ii) the average
closing price of the Common Stock for the five Trading Days ending on that date of determination.




          (c) The Bid Solicitation Agent shall not determine the Trading Price unless requested by the
Company to make such determination. The Company shall have no obligation to make such a request
unless a Holder of Notes provides the Company with reasonable evidence that the Trading Price of
the Notes for the five Trading Days ending on and including the third Trading Day immediately
preceding the first day of such Interest Payment Period is greater than or equal to 120% of the
principal amount of Notes as set forth in Section 13.01(a), at which time the Company shall
instruct the Bid Solicitation Agent to determine the average Trading Price in






39









 







accordance with Section 13.01(a). The Bid Solicitation Agent’s determination of the Trading
Price shall be conclusive absent manifest error and subject to Section 13.01(b).




     Section 13.02. Trustee’s Responsibilities in Respect of Contingent Interest. The Company
shall determine whether Holders are entitled to receive Contingent Interest, and if it so
determines, shall provide notice to the Trustee and all Holders of record of the Notes.
Simultaneously with providing such 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. Notwithstanding any term contained in this Indenture or any other
document to the contrary, the Trustee 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 13.03. Payment of Contingent Interest. Contingent Interest for any Interest Payment
Period shall be paid on the applicable Interest Payment Date to the Holder in whose name any Note
is registered on the Note Register on the corresponding Regular Record Date. Contingent Interest
due under this Article 13 shall be treated for all purposes of this Indenture like any other
interest accruing on the Note.



     Section 13.04. Tax Treatment of the Securities. For United Stated federal income tax
purposes, the Company agrees, and by acceptance of a beneficial interest in the Notes each Holder
and any beneficial owner of the Notes shall be deemed to have agreed, to (1) treat the Notes as
debt instruments that are subject to Treasury Regulation section 1.1275-4 or any successor
provision (the “Contingent Payment Regulations”), (2) treat the sum of the amount of any cash plus
the fair market value of any Common Stock received upon conversion of the Notes as a contingent
payment for purposes of the Contingent Payment Regulations, (3) accrue interest with respect to the
Notes as original discount for United States federal income tax purposes according to the
“noncontingent bond method” set forth in the Contingent Payment Regulations and (4) be bound by the
Company’s determination of the “comparable yield” and “projected payment schedule,” each within the
meaning of the Contingent Payment Regulations, with respect to the Notes. The Company agrees to
provide promptly to any Holder of Notes, upon written request, the issue price, amount of tax
original issue discount, issue date, comparable yield and projected payment schedule. Any such
written request should be sent to Altra Holdings, Inc. at the following address: 300 Granite
Street, Suite 201, Braintree, Massachusetts 02184, Attention: Chief Financial Officer.



ARTICLE 14

Conversion of Notes




     Section 14.01. Conversion Privilege. (a) Subject to and upon compliance with the provisions
of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert
all or any portion (if the portion to be converted is $2,000 principal amount or an integral
multiple of $1,000 thereafter) of such Note (i) at any time prior to the close of business on the
Business Day immediately preceding March 1, 2030, but only under the conditions and during the
periods set forth in Section 14.01(b), and (ii) irrespective of the conditions described in Section
14.01(b), on or after March 1, 2030 and prior to the close of business on the second Business Day
immediately preceding the Maturity Date, in each case, at an initial conversion rate of 36.0985
shares of Common Stock (subject to adjustment as provided in Section 14.04, the “Conversion Rate”)
per $1,000 principal amount of Notes (subject to the settlement provisions of Section 14.02, the
“Conversion Obligation”).



          (b) (i) The Notes may be surrendered for conversion during the five Business Day period
immediately after any 10 consecutive Trading Day period (the “Measurement Period”) in which the
Trading Price, as determined following a request by a Holder of Notes in accordance with this
subsection (b)(i), for each Trading Day of the Measurement Period was less than 97% of the product
of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each such Trading
Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this
subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company
shall provide written notice to the Bid Solicitation Agent of the three independent nationally
recognized securities dealers selected by the Company pursuant to the definition of Trading Price,
along with appropriate contact information for each. The Bid Solicitation Agent shall have no
obligation to determine the Trading Price unless the Company has requested such determination, and
the Company shall have no obligation to make such request unless a Holder provides the Company with
reasonable evidence that the Trading Price would be






40









 







less than 97% of the product of the Last Reported Sale Price of the Common Stock and the
Conversion Rate, at which time the Company shall instruct the Bid Solicitation Agent to determine
the Trading Price beginning on the next Trading Day and on each successive Trading Day until the
Trading Price is greater than or equal to 97% of the product of the Last Reported Sale Price of the
Common Stock and the Conversion Rate. If the Company does not instruct the Bid Solicitation Agent
to determine the Trading Price when obligated as provided in the preceding sentence, or if the
Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to
make such determination, then, in either case, for the purposes of this Section 14.01(b)(i), the
Trading Price shall be deemed to be less than 97% of the product of the Last Reported Sale Price of
the Common Stock and the Conversion Rate on each Trading Day of such failure. In addition, for
purposes of this Section 14.01(b)(i), if the Bid Solicitation Agent cannot reasonably obtain at
least one bid for $2,000,000 principal amount of Notes from an independent nationally recognized
securities dealer when determining the Trading Price , then the Trading Price shall be deemed to be
less than 97% of the product of the Last Reported Sale Price of the Common Stock and the Conversion
Rate. If the Trading Price condition set forth above has been met, the Company shall so notify the
Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after
the Trading Price condition set forth above has been met, the Trading Price is greater than or
equal to 97% of the product of the Last Reported Sale Price of the Common Stock and the applicable
Conversion Rate, the Company shall so notify the Holders of the Notes, the Trustee and the
Conversion Agent (if other than the Trustee).





          (ii) If the Company elects to:




          (A) issue to all or substantially all holders of its Common Stock any
rights, options or warrants entitling them, for a period of not more than 45
calendar days after the announcement date of such issuance, to subscribe for
or purchase shares of its Common Stock, at a price per share that is less
than the average of the Last Reported Sale Prices of the Common Stock for
the 10 consecutive Trading Day period ending on, and including, the Trading
Day immediately preceding the date of announcement of such issuance; or




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


then, in either case, the Company shall notify all Holders of the Notes, the Trustee and the
Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the
Ex-Dividend Date for such issuance or distribution. Once the Company has given such notice, the
Notes may be surrendered for conversion at any time until the earlier of (1) the close of business
on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution
and (2) the Company’s announcement that such issuance or distribution will not take place, even if
the Notes are not otherwise convertible at such time.





          (iii) If at any time a transaction or event that constitutes a Fundamental
Change or a Make-Whole Fundamental Change occurs, regardless of whether a Holder has
the right to require the Company to repurchase the Notes pursuant to Section 15.01,
or if the Company is a party to a consolidation, merger, binding share exchange, or
transfer or lease of all or substantially all of its assets, pursuant to which the
Common Stock would be converted into cash, securities or other assets, the Notes may
be surrendered for conversion at any time from or after the date that is 30
Scheduled Trading Days prior to the anticipated effective date of the transaction
(or, if later, the Business Day after the Company gives notice of such transaction)
until 30 Trading Days after the actual effective date of such transaction or, if
such transaction also constitutes a Fundamental Change, until the related
Fundamental Change Repurchase Date (or, in each case, if earlier, until the
Company’s announcement that such transaction or event will not take place). The
Company shall notify Holders, the Trustee and the Conversion Agent (if other than
the Trustee) (i) as promptly as practicable following the date the Company publicly
announces such transaction but in no event less than 30 Scheduled Trading Days prior
to the anticipated effective date of such transaction or (ii) if the Company does
not have knowledge of such transaction at least 30



41









 







Scheduled Trading Days prior to the anticipated effective date of such
transaction, within one Business Day of the date upon which the Company receives
notice, or otherwise becomes aware, of such transaction but in no event later than
the actual effective date of such transaction.




          (iv) The Notes may be surrendered for conversion during any fiscal quarter
(and only during such fiscal quarter) commencing after June 30, 2011, if the Last
Reported Sale Price of the Common Stock is greater than or equal to 130% of the
Conversion Price 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. The Company, shall determine at the beginning
of each fiscal quarter commencing after June 30, 2011 whether the Notes may be
surrendered for conversion in accordance with this clause (iv) and shall notify the
Company and the Trustee if the Notes become convertible in accordance with this
clause (iv).




          (v) If the Company calls any or all of the Notes for redemption pursuant to
Article 16, then Holders may surrender Notes that have been so called for redemption
at any time prior to the close of business on the third Scheduled Trading Day
immediately preceding the Redemption Date, even if the Notes are not otherwise
convertible at such time, after which time the Holder’s right to convert shall
expire, unless the Company defaults in the payment of the Redemption Price, in which
case a Holder of Notes may convert its Notes until the Redemption Price has been
paid or duly provided for.



     Section 14.02. Conversion Procedure; Settlement Upon Conversion.



          (a) Unless the Conversion Date of any conversion in accordance with this Article 14 is on or
after the Irrevocable Net Share Settlement Election Date, if any, and subject to this Section
14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or
deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount
of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if
applicable, in lieu of any fractional share of Common Stock in accordance with subsection (j) of
this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock,
together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance
with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth
in this Section 14.02.





          (i) All conversions occurring on or after March 1, 2030 or after the Company’s
issuance of a Redemption Notice with respect to the Notes and prior to the related
Redemption Date shall be settled using the same Settlement Method.




          (ii) Prior to March 1, 2030, except for any conversions that occur after the
Company’s issuance of a Redemption Notice with respect to the Notes but prior to the
related Redemption Date, the Company shall use the same Settlement Method for all
conversions occurring on the same Conversion Date, but the Company shall not have
any obligation to use the same Settlement Method with respect to conversions that
occur on different Trading Days.




          (iii) Unless a Conversion Date is on or after the Irrevocable Net Share
Settlement Election Date, if any, if, in respect of any such Conversion Date (or the
period beginning on, and including, March 1, 2030 and ending on, and including, the
third Scheduled Trading Day immediately preceding the Maturity Date, as the case may
be), the Company elects to deliver a notice (the “Settlement Notice”) of the
relevant Settlement Method in respect of such Conversion Date (or such period, as
the case may be), the Company, through the Trustee, shall deliver such Settlement
Notice to converting Holders no later than the close of business on the Trading Day
immediately following the relevant Conversion Date (or, in the case of any
conversions occurring after the date of issuance of a Redemption Notice with respect
to the Notes and prior to the related Redemption Date, in such Redemption Notice).
The Company must select a settlement method and inform holders of such settlement
method by no later than March 1, 2030 in the case of conversions occurring on or
after March 1, 2030. If the Company does not elect a Settlement Method prior to the
deadline set forth in the immediately preceding sentence, the



42









 







Company shall no longer have the right to elect Cash Settlement or Physical
Settlement and the Company shall be deemed to have elected Combination Settlement in
respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000
principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall
specify the relevant Settlement Method and in the case of an election of Combination
Settlement, the relevant Settlement Notice shall indicate the Specified Dollar
Amount. If the Company delivers a Settlement Notice electing Combination Settlement
in respect of its Conversion Obligation but does not indicate a Specified Dollar
Amount in such Settlement Notice, the Specified Dollar Amount shall be deemed to be
$1,000.




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




          (A) if the Company elects to satisfy its Conversion Obligation in
respect of such conversion by Physical Settlement, the Company shall deliver
to the converting Holder a number of shares of Common Stock equal to the
product of (1) the aggregate principal amount of Notes to be converted,
divided by $1,000, and (2) the Conversion Rate in effect on the Conversion
Date;




          (B) if the Company elects to satisfy its Conversion Obligation in
respect of such conversion by Cash Settlement, the Company shall pay to the
converting Holder in respect of each $1,000 principal amount of Notes being
converted cash in an amount equal to the sum of the Daily Conversion Values
for each of the 40 consecutive Trading Days during the related Observation
Period; and




          (C) if the Company elects (or is deemed to have elected) to satisfy its
Conversion Obligation in respect of such conversion by Combination
Settlement, the Company shall pay or deliver, as the case may be, in respect
of each $1,000 principal amount of Notes being converted, a Settlement
Amount equal to the sum of the Daily Settlement Amounts for each of the 40
consecutive Trading Days during the related Observation Period.




          (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion
Values (if applicable) shall be determined by the Company promptly following the
last day of the Observation Period. Promptly after such determination of the Daily
Settlement Amounts or the Daily Conversion Values, as the case may be, and the
amount of cash payable in lieu of any fractional share, the Company shall notify the
Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement
Amounts or the Daily Conversion Values, as the case may be, and the amount of cash
payable in lieu of fractional shares of Common Stock. The Trustee and the
Conversion Agent (if other than the Trustee) shall have no responsibility for any
such determination.



          (b) The Company shall have the right, in its sole discretion and without the consent of any
Holder, to irrevocably elect (an “Irrevocable Net Share Settlement Election”), by notice to
Holders, the Trustee and the Conversion Agent, promptly at any time prior to March 1, 2030, that
Combination Settlement, with a Specified Dollar Amount equal to $1,000), apply to each and every
conversion of any Security whose Conversion Date is on or after the date (the “Irrevocable Net
Share Settlement Election Date”) the Company provides such notice, which election, once given,
shall be irrevocable; provided, however, that the Company shall have the right to irrevocably
renounce its right to make an Irrevocable Net Share Settlement Election by notifying Holders, the
Trustee and the Conversion Agent at any time prior to the earlier of (A) March 1, 2030 and (B) the
Company’s exercise of the Irrevocable Net Share Settlement Election, in which case no Irrevocable
Net Share Settlement Election is permitted to be made after such notice; if the Company has duly
made an Irrevocable Net Share Settlement Election, then the Company need not, and may not,
thereafter provide a Settlement Method Election Notice in respect of any conversion of a Note.







43









 








          (c) Subject to Section 14.02(f), before any Holder of a Note shall be entitled to convert a
Note as set forth above, such Holder shall (i) in the case of a Global Note, 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 14.02(i) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an
irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a
facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in
writing therein the principal amount of Notes to be converted and the name or names (with
addresses) in which such Holder wishes the certificate or certificates for any shares of Common
Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender
such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement
and transfer documents), at the office of the Conversion Agent, (3) if required, furnish
appropriate endorsements and transfer documents and (4) 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 14.02(i). The Trustee (and if different, the Conversion Agent) shall notify the Company of
any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice
of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has
also delivered a Fundamental Change Repurchase Notice or an Option Repurchase Notice to the Company
in respect of such Notes and not validly withdrawn such Fundamental Change Repurchase Notice or
Such Option Repurchase Notice in accordance with Section 15.03, respectively.




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



          (d) A Note shall be deemed to have been converted immediately prior to the close of business
on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in
subsection (b) above. Except as otherwise provided in Section 14.03(b) or Section 14.07, the
Company shall pay or deliver, as the case may be, the consideration due in respect of the
Conversion Obligation on the third Business Day immediately following the relevant Conversion Date,
if the Company elects Physical Settlement, or on the third Business Day immediately following the
last Trading Day of the Observation Period, in the case of any other Settlement Method. If any
shares of Common Stock are due to converting Holders, the Company shall issue or cause to be
issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or
nominees, certificates or a book-entry transfer through the Depositary for the full number of
shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company’s
Conversion Obligation.




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




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




          (g) Except as provided in Section 14.04, no adjustment shall be made for dividends on any
shares issued upon the conversion of any Note as provided in this Article 14.




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







44









 








          (i) Upon conversion, a Holder shall not receive any separate cash payment for accrued and
unpaid interest, if any, except as set forth below. The Company’s settlement of the Conversion
Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the
Note and accrued and unpaid interest, if any, to, but not including, the Conversion Date. As a
result, accrued and unpaid interest, if any, to, but not including, the Conversion Date shall be
deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of
Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be
deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing,
if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes
as of the close of business on such Regular Record Date will receive the interest payable on such
Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered
for conversion during the period from the close of business on any Regular Record Date to the open
of business on the immediately following Interest Payment Date must be accompanied by funds equal
to the amount of interest payable on the Notes so converted; provided that no such payment shall be
required (1) if the Company has specified a Redemption Date that is after a Regular Record Date and
on or prior to the corresponding Interest Payment Date; (2) if the Company has specified a
Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the
corresponding Interest Payment Date; (3) for conversions following the Regular Record Date for the
interest payment due on March 1, 2031 or (4) to the extent of any overdue interest, if any such
amounts exist at the time of conversion with respect to such Notes.




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




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




     Section 14.03. Increased Conversion Rate Applicable to Certain Notes Surrendered in
Connection with Make-Whole Fundamental Changes.



          (a) If a Make-Whole Fundamental Change occurs on or prior to March 1, 2018 and a Holder elects
to convert its Notes in connection with such Make-Whole Fundamental Change, the Company shall,
under the circumstances described below, increase the Conversion Rate for the Notes so surrendered
for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as
described below. A conversion of Notes shall be deemed for these purposes to be “in connection
with” such Make-Whole Fundamental Change if the relevant Notice of Conversion is received by the
Conversion Agent from, and including, the Effective Date of the Make-Whole Fundamental Change up
to, and including, the Business Day immediately prior to the related Fundamental Change Repurchase
Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change
but for the proviso in clause (b) of the definition thereof, the 30th Trading Day immediately
following the Effective Date of such Make-Whole Fundamental Change).




          (b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change
pursuant to Section 14.01(b)(iii), the Company shall, at its option, satisfy the related Conversion
Obligation by Physical Settlement, Cash Settlement or Combination Settlement in accordance with
Section 14.02; provided, however, that if, at the effective time of a Make-Whole Fundamental Change
described in clause (b) of the definition of Fundamental Change, the Reference Property is composed
entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole
Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock Price
for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of
converted Notes equal to the Conversion Rate (including any adjustment for Additional Shares),






45









 







multiplied by such Stock Price. In such event, the Conversion Obligation shall be paid to
Holders in cash on the third Business Day following the Conversion Date. The Company shall notify
the Holders of Notes of the Effective Date of any Make-Whole Fundamental Change and issue a press
release announcing such Effective Date no later than five Business Days after such Effective Date.




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




          (d) The Stock Prices set forth in the column headings of the table below shall be adjusted as
of any date on which the Conversion Rate of the Notes is otherwise adjusted. The adjusted Stock
Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by
a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment
giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so
adjusted. The number of Additional Shares set forth in the table below shall be adjusted in the
same manner and at the same time as the Conversion Rate as set forth in Section 14.04.




          (e) The following table sets forth the number of Additional Shares to be received per $1,000
principal amount of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date
set forth below:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price
	Effective Date	 	$20.52	 	$23.50	 	$27.70	 	$30.00	 	$36.01	 	$40.00	 	$50.00	 	$60.00	 	$75.00	 	$90.00
	March 7, 2011
	 	 	12.6344	 	 	 	10.0016	 	 	 	7.5166	 	 	 	6.5447	 	 	 	4.7723	 	 	 	3.9864	 	 	 	2.7343	 	 	 	2.0156	 	 	 	1.3809	 	 	 	0.9970	 
	March 1, 2012
	 	 	12.6344	 	 	 	9.9891	 	 	 	7.3657	 	 	 	6.3586	 	 	 	4.5528	 	 	 	3.7724	 	 	 	2.5672	 	 	 	1.9013	 	 	 	1.3292	 	 	 	0.9884	 
	March 1, 2013
	 	 	12.6344	 	 	 	9.8768	 	 	 	7.0951	 	 	 	6.0472	 	 	 	4.2143	 	 	 	3.4515	 	 	 	2.3253	 	 	 	1.7373	 	 	 	1.2500	 	 	 	0.9625	 
	March 1, 2014
	 	 	12.6344	 	 	 	9.7052	 	 	 	6.6968	 	 	 	5.5841	 	 	 	3.7120	 	 	 	2.9801	 	 	 	1.9905	 	 	 	1.5254	 	 	 	1.1516	 	 	 	0.9248	 
	March 1, 2015
	 	 	12.6344	 	 	 	9.5093	 	 	 	6.2198	 	 	 	4.9992	 	 	 	2.9309	 	 	 	2.1771	 	 	 	1.5804	 	 	 	1.3164	 	 	 	1.0530	 	 	 	0.8774	 
	March 1, 2016
	 	 	12.6344	 	 	 	8.9959	 	 	 	5.4040	 	 	 	4.0977	 	 	 	1.9426	 	 	 	1.3401	 	 	 	1.0703	 	 	 	0.8919	 	 	 	0.7136	 	 	 	0.5946	 
	March 1, 2017
	 	 	12.6344	 	 	 	8.0508	 	 	 	4.2307	 	 	 	2.9568	 	 	 	1.0683	 	 	 	0.6758	 	 	 	0.5359	 	 	 	0.4466	 	 	 	0.3573	 	 	 	0.2977	 
	March 1, 2018
	 	 	12.6344	 	 	 	6.4547	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 






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




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




          (ii) if the Stock Price is greater than $90.00 per share (subject to adjustment
in the same manner as the Stock Prices set forth in the column headings of the
table above pursuant to subsection (d) above), no Additional Shares shall be added
to the Conversion Rate; and




          (iii) if the Stock Price is less than $20.52 per share (subject to adjustment
in the same manner as the Stock Prices set forth in the column headings of the table
above pursuant to subsection (d) above), no Additional Shares shall be added to the
Conversion Rate.


Notwithstanding the foregoing, in no event shall the total number of shares of Common Stock
issuable upon conversion exceed 48.7329 per $1,000 principal amount of Notes, subject to adjustment
in the same manner as the Conversion Rate pursuant to Section 14.04.







46









 








          (f) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate pursuant
to Section 14.04 in respect of a Make-Whole Fundamental Change.




     Section 14.04. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from
time to time by the Company if any of the following events occurs, except that the Company shall
not make any adjustments to the Conversion Rate if Holders of the Notes participate (other than in
the case of a share split or share combination), at the same time and upon the same terms as
holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions
described in this Section 14.04, without having to convert their Notes, as if they held a number of
shares of Common Stock equal to the Conversion Rate, multiplied by the principal amount (divided by
$1,000) of Notes held by such Holder.



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









where,




	 	 	 	 	 

	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to
the open of business on the Ex-Dividend Date of
such dividend or distribution, or immediately
prior to the open of business on the effective
date of such share split or share combination, as
applicable;
	 
	 	 	 	 
	CR1

	 	=
	 	the Conversion Rate in effect immediately after
the open of business on such Ex-Dividend Date or
effective date;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to the open of business on such
Ex-Dividend Date or effective date; and
	 
	 	 	 	 
	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 14.04(a) shall become effective immediately after the open
of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the
open of business on the effective date for such share split or share combination, as applicable.
If any dividend or distribution of the type described in this Section 14.04(a) is declared but not
so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the
Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared.




          (b) If the Company issues to all or substantially all holders of its Common Stock any rights,
options or warrants entitling them, for a period of not more than 45 calendar days after the
announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a
price per share that is less than the average of the Last Reported Sale Prices of the Common Stock
for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the date of announcement of such issuance, the Conversion Rate shall be increased based
on the following formula:









where,




47









 





	 	 	 	 	 

	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 the
Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading
Day immediately preceding the date of announcement of the issuance of such rights, options or
warrants.





Any increase made under this Section 14.04(b) shall be made successively whenever any such rights,
options or warrants are issued and shall become effective immediately after the open of business on
the Ex-Dividend Date for such issuance. To the extent that shares of the Common Stock are not
delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be
decreased to the Conversion Rate that would then be in effect had the increase with respect to the
issuance of such rights, options or warrants been made on the basis of delivery of only the number
of shares of Common Stock actually delivered. If such rights, options or warrants are not so
issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect
if such Ex-Dividend Date for such issuance had not occurred.




     For purposes of this Section 14.04(b), in determining whether any rights, options or warrants
entitle the holders to subscribe for or purchase shares of the Common Stock at less than such
average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day
period ending on, and including, the Trading Day immediately preceding the date of announcement for
such issuance, and in determining the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received by the Company for such rights,
options or warrants and any amount payable on exercise or conversion thereof, the value of such
consideration, if other than cash, to be determined by the Board of Directors or a committee
thereof.



          (c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness,
other assets or property or rights, options or warrants to acquire its Capital Stock or other
securities, to all or substantially all holders of the Common Stock, excluding (i) dividends,
distributions or issuances as to which an adjustment was effected pursuant to Section 14.04(a) or
Section 14.04(b), (ii) dividends or distributions paid exclusively in cash as to which an
adjustment was effected pursuant to Section 14.04(d), and (iii) Spin-Offs as to which the
provisions set forth below in this Section 14.04(c) shall apply (any of such shares of Capital
Stock, evidences of indebtedness, other assets or property or rights, options or warrants to
acquire Capital Stock or other securities of the Company, the “Distributed Property”), then the
Conversion Rate shall be increased based on the following formula:








where,




	 	 	 	 	 

	CR0

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






48









 






	 	 	 	 	 

	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, and including, the Trading Day immediately preceding the
Ex-Dividend Date for such distribution; and
	 
	 	 	 	 
	FMV

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





Any increase made under the portion of this Section 14.04(c) above shall become effective
immediately after the open of business on the Ex-Dividend Date for such distribution. If such
distribution is not so paid or made, the Conversion Rate shall be decreased to the Conversion Rate
that would then be in effect if such dividend or distribution had not been declared.
Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than
“SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall
receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same
terms as holders of the Common Stock receive the Distributed Property, the amount of Distributed
Property such Holder would have received if such Holder owned a number of shares of Common Stock
equal to the Conversion Rate in effect on the Ex-Dividend Date for the distribution. If the Board
of Directors determines the “FMV” (as defined above) of any distribution for purposes of this
Section 14.04(c) by reference to the actual or when-issued trading market for any securities, it
shall in doing so consider the prices in such market over the same period used in computing the
Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on,
and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution.




     With respect to an adjustment pursuant to this Section 14.04(c) where there has been a payment
of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or
series, or similar equity interest, of or relating to a Subsidiary or other business unit of the
Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national
securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following
formula:







Where,




	 	 	 	 	 

	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to the end of the Valuation Period;
	 
	 	 	 	 
	CR1

	 	=
	 	the Conversion Rate in effect immediately after the end of the Valuation Period;
	 
	 	 	 	 
	FMV0

	 	=
	 	the average of the Last Reported Sale Prices of the Capital Stock or similar equity
interest distributed to holders of the Common Stock applicable to one share of the Common
Stock (determined by reference to the definition of Last Reported Sale Price as set forth
in Section 1.01 as if references therein to Common Stock were to such Capital Stock or
similar equity interest) over the first 10 consecutive Trading Day period after, and
including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and
	 
	 	 	 	 
	MP0

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





The adjustment to the Conversion Rate under the preceding paragraph shall occur on the last Trading
Day of the Valuation Period; provided that in respect of any conversion during the Valuation
Period, references in the portion of this Section 14.04(c) related to Spin-Offs to 10 Trading Days
shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the
Ex-Dividend Date of such Spin-Off and the Conversion Date in determining the Conversion Rate.







49









 








     For purposes of this Section 14.04(c) (and subject in all respect to Section 14.11), rights,
options or warrants distributed by the Company to all holders of its Common Stock entitling them to
subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either
initially or under certain circumstances), which rights, options or warrants, until the occurrence
of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such
shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of
future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of
this Section 14.04(c) (and no adjustment to the Conversion Rate under this Section 14.04(c) will be
required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or
warrants shall be deemed to have been distributed and an appropriate adjustment (if any is
required) to the Conversion Rate shall be made under this Section 14.04(c). If any such right,
option or warrant, including any such existing rights, options or warrants distributed prior to the
date of this Indenture, are subject to events, upon the occurrence of which such rights, options or
warrants become exercisable to purchase different securities, evidences of indebtedness or other
assets, then the date of the occurrence of any and each such event shall be deemed to be the date
of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such
rights (in which case the existing rights, options or warrants shall be deemed to terminate and
expire on such date without exercise by any of the holders thereof). In addition, in the event of
any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or
other event (of the type described in the immediately preceding sentence) with respect thereto that
was counted for purposes of calculating a distribution amount for which an adjustment to the
Conversion Rate under this Section 14.04(c) was made, (1) in the case of any such rights, options
or warrants that shall all have been redeemed or purchased without exercise by any holders thereof,
upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such
rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be
readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case
may be, as though it were a cash distribution, equal to the per share redemption or purchase price
received by a holder or holders of Common Stock with respect to such rights, options or warrants
(assuming such holder had retained such rights, options or warrants), made to all holders of Common
Stock as of the date of such redemption or purchase, and (2) in the case of such rights, options or
warrants that shall have expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.



     For purposes of Section 14.04(a), Section 14.04(b) and this Section 14.04(c), any dividend or
distribution to which this Section 14.04(c) is applicable that also includes one or both of:




          (A) a dividend or distribution of shares of Common Stock to which
Section 14.04(a) is applicable (the “Clause A Distribution”); or




          (B) a dividend or distribution of rights, options or warrants to which
Section 14.04(b) is applicable (the “Clause B Distribution”),


then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B
Distribution, shall be deemed to be a dividend or distribution to which this Section 14.04(c) is
applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this
Section 14.04(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 14.04(a) and Section 14.04(b)
with respect thereto shall then be made, except that, if determined by the Company (I) the
“Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be
the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock included in
the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding
immediately prior to the open of business on such Ex-Dividend Date or effective date” within the
meaning of Section 14.04(a) or “outstanding immediately prior to the open of business on such
Ex-Dividend Date” within the meaning of Section 14.04(b).




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







50









 













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

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





Any increase pursuant to this Section 14.04(d) shall become effective immediately after the open of
business on the Ex-Dividend Date for such dividend or distribution. If such dividend or
distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the
Board of Directors determines not to make or pay such dividend or distribution, to the Conversion
Rate that would then be in effect if such dividend or distribution had not been declared.
Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than
“SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall
receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as
holders of shares of the Common Stock, the amount of cash that such Holder would have received if
such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the
Ex-Dividend Date for such cash dividend or distribution.




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








where,




	 	 	 	 	 

	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to
the close of business on the 10th Trading Day
immediately following, and including, the Trading
Day next succeeding the date such tender or
exchange offer expires;
	 
	 	 	 	 
	CR1

	 	=
	 	the Conversion Rate in effect immediately after
the close of business on the 10th Trading Day
immediately following, and including, the Trading
Day next succeeding the date such tender or
exchange offer expires;
	 
	 	 	 	 
	AC

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






51









 






	 	 	 	 	 

	OS0

	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to the date such tender or
exchange offer expires (prior to giving effect to
the purchase of all shares of Common Stock
accepted for purchase or exchange in such tender
or exchange offer);
	 
	 	 	 	 
	OS1

	 	=
	 	the number of shares of Common Stock outstanding
immediately after the date such tender or exchange
offer expires (after giving effect to the purchase
of all shares of Common Stock accepted for
purchase or exchange in such tender or exchange
offer); and
	 
	 	 	 	 
	SP1

	 	=
	 	the average of the Last Reported Sale Prices of
the Common Stock over the 10 consecutive Trading
Day period commencing on, and including, the
Trading Day next succeeding the date such tender
or exchange offer expires.





The adjustment to the Conversion Rate under this Section 14.04(e) shall occur at the close of
business on the 10th Trading Day immediately following, and including, the Trading Day next
succeeding the date such tender or exchange offer expires; provided that in respect of any
conversion within the 10 Trading Days immediately following, and including, the expiration date of
any tender or exchange offer, references in this Section 14.04(e) with respect to 10 Trading Days
shall be deemed replaced with such lesser number of Trading Days as have elapsed between the date
that such tender or exchange offer expires and the Conversion Date in determining the Conversion
Rate.




          (f) Notwithstanding this Section 14.04 or any other provision of this Indenture or the Notes,
if a Conversion Rate adjustment becomes effective on any Ex-Dividend Date, and a Holder that has
converted its Notes on or after such Ex-Dividend Date and on or prior to the related Record Date
would be treated as the record holder of the shares of Common Stock as of the related Conversion
Date as described under Section 14.02(j) based on an adjusted Conversion Rate for such Ex-Dividend
Date, then, notwithstanding the Conversion Rate adjustment provisions in this Section 14.04, the
Conversion Rate adjustment relating to such Ex-Dividend Date shall not be made for such converting
Holder. Instead, such Holder shall be treated as if such Holder were the record owner of the
shares of Common Stock on an unadjusted basis and participate in the related dividend, distribution
or other event giving rise to such adjustment.




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




          (h) In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this
Section 14.04, and to the extent permitted by applicable law and subject to the applicable rules of
the NASDAQ Global Market or such other principal U.S. national or regional securities exchange on
which the Common Stock is then listed, the Company from time to time may increase the Conversion
Rate by any amount for a period of at least 20 Business Days if the Board of Directors or a
committee thereof determines that such increase would be in the Company’s best interest. In
addition, the Company may (but is not required to) increase the Conversion Rate to avoid or
diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection
with a dividend or distribution of shares (or rights to acquire shares) or similar event. Whenever
the Conversion Rate is increased pursuant to either of the preceding two sentences, the Company
shall mail to the Holder of each Note at its last address appearing on the Note Register a notice
of the increase at least 15 days prior to the date the increased Conversion Rate takes effect, and
such notice shall state the increased Conversion Rate and the period during which it will be in
effect.




          (i) Notwithstanding anything to the contrary in this Article 14, the Conversion Rate shall not
be adjusted:





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



52









 






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




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




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




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



          (j) All calculations and other determinations under this Article 14 shall be made by the
Company and shall be made to the nearest one-ten-thousandth (1/10,000) of a share, with five
one-hundred-thousandths (5/100,000) rounded upward. The Company shall not be required to make an
adjustment under this Article 14 unless the adjustment would require a change of at least 1% in the
Conversion Rate. Notwithstanding the immediately preceding sentence, the Company shall carry
forward any adjustments that are less than 1% of the Conversion rate and make such carried-forward
adjustments on each Conversion Date, and each Observation Period Trading Day with respect to any
Conversion Date, for any Notes.




          (k) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee (and the Conversion Agent if not 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 shall have
received such Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any
adjustment of the Conversion Rate and may assume without inquiry that the last Conversion Rate of
which it has knowledge is still in effect. Promptly after delivery of such certificate, the
Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted
Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice
of such adjustment of the Conversion Rate to each Holder at its last address appearing on the Note
Register of this Indenture. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.




          (l) For purposes of this Section 14.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company so long as the Company
does not pay any dividend or make any distribution on shares of Common Stock held in the treasury
of the Company, but shall include shares issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock.




     Section 14.05. Adjustments of Prices. Whenever any provision of this Indenture requires the
Company to calculate the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or
the Daily Settlement Amounts over a span of multiple days (including an Observation Period and the
period for determining the Stock Price for purposes of a Make-Whole Fundamental Change), the Board
of Directors or a committee thereof shall make appropriate adjustments to each to account for any
adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to
the Conversion Rate where the Ex-Dividend Date of the event occurs, at any time during the period
when the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or the Daily
Settlement Amounts are to be calculated.



     Section 14.06. 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 Notes from time to time as such Notes are presented
for conversion (assuming that at the time of computation of such number of shares, all such Notes
would be converted by a single Holder and that Physical Settlement is applicable).



     Section 14.07. Effect of Recapitalizations, Reclassifications and Changes of the Common
Stock.



          (a) In the case of:







53









 









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




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




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




          (iv) any statutory share exchange,


in each case, as a result of which the Common Stock would be converted into, or exchanged for,
stock, other securities, other property or assets (including cash or any combination thereof) (any
such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the
right to convert each $1,000 principal amount of Notes shall be changed into a right to convert
such principal amount of Notes into the kind and amount of shares of stock, other securities or
other property or assets (including cash or any combination thereof) that a holder of a number of
shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would
have owned or been entitled to receive (the “Reference Property”, with each “unit of Reference
Property” meaning the kind and amount of Reference Property that a holder of one share of Common
Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such
Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute
with the Trustee a supplemental indenture permitted under Section 10.01(f) providing for such
change in the right to convert each $1,000 principal amount of Notes; provided, however, that at
and after the effective time of the Merger Event (A) the Company shall continue to have the right
to determine the form of consideration to be paid or delivered, as the case may be, upon conversion
of Notes in accordance with Section 14.02 and (B) (I) any amount payable in cash upon conversion of
the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II) any shares of
Common Stock that the Company would have been required to deliver upon conversion of the Notes in
accordance with Section 14.02 shall instead be deliverable in the amount and type of Reference
Property that a holder of that number of shares of Common Stock would have been entitled to receive
in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of
Reference Property.




     If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right
to receive more than a single type of consideration (determined based in part upon any form of
stockholder election), then (i) the Reference Property into which the Notes will be convertible
shall be deemed to be the weighted average of the types and amounts of consideration received by
the holders of Common Stock that affirmatively make such an election, and (ii) the unit of
Reference Property for purposes of the immediately preceding paragraph shall refer to the
consideration referred to in clause (i) attributable to one share of Common Stock. If the holders
receive only cash in such Merger Event, then for all conversions that occur after the effective
date of such Merger Event (x) the consideration due upon conversion of each $1,000 principal amount
of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion
Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the
price paid per share of Common Stock in such Merger Event and (y) the Company shall satisfy the
Conversion Obligation by paying cash to converting Holders on the third Business Day immediately
following the Conversion Date. The Company shall notify Holders, the Trustee and the Conversion
Agent (if other than the Trustee) of such weighted average as soon as practicable after such
determination is made.



     Such supplemental indenture described in the second immediately preceding paragraph shall
provide for adjustments that shall be as nearly equivalent as is possible to the adjustments
provided for in this Article 14. If, in the case of any Merger Event, the Reference Property
includes shares of stock, securities or other property or assets (including cash or any combination
thereof) of a Person other than the successor or purchasing corporation, as the case may be, in
such Merger Event, then such supplemental indenture shall also be executed by such other Person and
shall contain such additional provisions to protect the interests of the Holders of the Notes as
the Board of Directors shall reasonably consider necessary by reason of the foregoing, including to
the extent required by the Board of Directors and practicable the provisions providing for the
purchase rights set forth in Article 15.



          (b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a)
of this Section 14.07, the Company shall promptly file with the Trustee an Officers’ Certificate
briefly stating the reasons therefore, the kind or amount of cash, securities or property or asset
that will comprise the Reference






54









 







Property after any such Merger Event, any adjustment to be made with respect thereto and that
all conditions precedent have been complied with, and shall promptly mail notice thereof to all
Holders. The Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Holder, at its address appearing on the Note Register provided for in this
Indenture, within 20 days after execution thereof. Failure to deliver such notice shall not affect
the legality or validity of such supplemental indenture.




          (c) The Company shall not become a party to any Merger Event unless its terms are consistent
with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of
Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of
Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 prior to the effective
date of such Merger Event.




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




     Section 14.08. Certain Covenants.



          (a) The Company covenants that all shares of Common Stock issued upon conversion of Notes will
be fully paid and non-assessable by the Company and free from all taxes, liens and charges 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 Notes 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, to the extent then permitted by the rules and interpretations of the Commission,
secure such registration or approval, as the case may be.




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




     Section 14.09. 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 any adjustment thereto) or whether any facts exist that may require any adjustment (including
any increase) 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, property or cash that may at any time be issued or
delivered upon the conversion of any Note; 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 Note for
the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the
Company contained in this Article. 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 14.07
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 Notes after any event referred to in such
Section 14.07 or to any adjustment to be made with respect thereto, but, subject to the provisions
of Section 7.01, may accept (without any independent investigation) as conclusive evidence of the
correctness of any such provisions, and shall be protected in relying upon, the Officers’
Certificate (which the Company shall be obligated to file with the Trustee prior to the execution
of any such supplemental indenture) with respect thereto. Neither the Trustee nor the Conversion
Agent shall be responsible for determining whether any event contemplated by Section 14.01(b) has
occurred that makes the Notes eligible for conversion or no longer eligible therefor until the
Company has delivered to the Trustee and the Conversion Agent the notices referred to in Section
14.01(b) with respect to the commencement or termination of such conversion rights, on which
notices the Trustee and the Conversion Agent may conclusively rely, and the Company agrees to
deliver such notices to the Trustee and the Conversion Agent immediately after the occurrence of
any such event or at such other times as shall be provided for in Section 14.01(b).



55









 





     Section 14.10. Notice to Holders Prior to Certain Actions. In case of any:



          (a) action by the Company or one of its Subsidiaries that would require an adjustment in the
Conversion Rate pursuant to Section 14.04 or Section 14.11;




          (b) Merger Event; or




          (c) voluntary or involuntary dissolution, liquidation or winding-up of the Company or any of
its Subsidiaries;



then, in each case (unless notice of such event is otherwise required pursuant to another provision
of this Indenture), the Company shall cause to be filed with the Trustee and the Conversion Agent
(if other than the Trustee) and to be mailed to each Holder at its address appearing on the Note
Register, as promptly as possible but in any event at least 20 days prior to the applicable date
hereinafter specified, a notice stating (i) the date on which a record is to be taken for the
purpose of such action by the Company or one of its Subsidiaries or, if a record is not to be
taken, the date as of which the holders of Common Stock of record are to be determined for the
purposes of such action by the Company or one of its Subsidiaries, or (ii) the date on which such
Merger Event, 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 Merger Event,
dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall
not affect the legality or validity of such action by the Company or one of its Subsidiaries,
Merger Event, dissolution, liquidation or winding-up.




     Section 14.11. Stockholder Rights Plans. To the extent that the Company has a rights plan in
effect upon conversion of the Notes, each share of Common Stock, if any, issued upon such
conversion shall be entitled to receive the appropriate number of rights, if any, and the
certificates representing the Common Stock issued upon such conversion shall bear such legends, if
any, in each case as may be provided by the terms of any such stockholder rights plan, as the same
may be amended from time to time. If at the time of conversion, however, the rights have separated
from the shares of Common Stock in accordance with the provisions of the applicable stockholder
rights plan so that the Holders would not be entitled to receive any rights in respect of Common
Stock, if any, issuable upon conversion of the Notes, the Conversion Rate shall be adjusted at the
time of separation as if the Company distributed to all or substantially all holders of Common
Stock shares of Capital Stock of the Company, evidences of its indebtedness, other assets or
property or rights, options or warrants to acquire its Capital Stock or other securities as
provided in Section 14.04(c), subject to readjustment in the event of the expiration, termination
or redemption of such rights.



     Section 14.12. Limit on Issuance of Shares of Common Stock Upon Conversion. Notwithstanding
anything to the contrary in this Indenture, if an event occurs that would result in an increase in
the Conversion Rate by an amount in excess of limitations imposed by any shareholder approval rules
or listing standards of any national or regional securities exchange that are applicable to the
Company, the Company will, at its option, either obtain stockholder approval of any issuance of
Common Stock upon conversion of the Notes in excess such limitations or deliver cash in lieu of any
shares of Common Stock otherwise deliverable upon conversions in excess of such limitations based
on the Daily VWAP on each Trading Day of the relevant Observation Period in respect of which, in
lieu of delivering shares of Common Stock, the Company delivers cash pursuant to this Section
14.12.



     Section 14.13. Exchange in lieu of conversion.



          (a) When a Holder surrenders Notes for conversion, the Company may direct the Conversion Agent
to surrender, on or prior to the commencement of the applicable Observation Period, such Notes to a
financial institution designated by the Company for exchange in lieu of conversion (a “Designated
Institution”). If the Company so elects, then by the close of business on the second Trading Day
after the Conversion Date, the Company shall notify the Conversion Agent and the Holder
surrendering Notes for conversion that the Company has directed the Designated Institution to make
an exchange in lieu of conversion and the Company shall notify the Conversion Agent whether the
Designated Institution shall deliver, upon exchange, all cash, all shares of Common Stock or a
combination of cash and shares of Common Stock in accordance with the provisions of Section 14.02.




56












 





               (b) In order to accept any Notes surrendered for conversion, the Company shall cause the
Designated Institution to agree with the Company to deliver, in exchange for such Notes, all cash,
shares of Common Stock or a combination of cash and share of Common Stock due upon conversion in
accordance with the provisions of Section 14.02, at the sole option of the Designated Institution
and as is notified to the Conversion Agent by the Company.




               (c) If the Designated Institution accepts Notes surrendered for exchange under this Section
14.13, the Company shall cause such Designated Institution to deliver such cash, shares of Common
Stock or a combination of cash and share of Common Stock in accordance with the provisions of
Section 14.02 to the Conversion Agent (or otherwise coordinate delivery of Common Stock in
accordance with book-entry provisions), and the Conversion Agent shall deliver such cash and/or
shares of Common Stock to the Holder, within the time period specified in Section 14.02(d) (it
being understood that delivery of Common Stock will be coordinated by the Company in accordance
with book-entry procedures, if applicable). Such delivery shall be deemed to satisfy the Company’s
Conversion Obligation with respect to such Holder. Any Notes so exchanged by such Designated
Institution shall remain outstanding for all purposes under this Indenture.




               (d) If the Designated Institution agrees to accept any Notes for exchange but does not timely
deliver the related consideration to the Conversion Agent, or if the Designated Institution does
not accept such Notes for exchange, the Company shall convert such Notes into cash and/or shares of
Common Stock, in accordance with the provisions of Section 14.02.




               (e) For the avoidance of doubt, in no event will the Company’s designation of a financial
institution pursuant to this Section 14.13 require such financial institution to accept any Notes
for exchange.




               (f) The Company shall not pay any consideration to, or otherwise enter into any agreement
with, the Designated Institution for or with respect to such designation.




ARTICLE 15

Repurchase of Notes at Option of Holders




          Section 15.01. Repurchase at Option of Holders Upon a Fundamental Change.




               (a) If a Fundamental Change occurs at any time, each Holder shall have the right, at such
Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any
portion thereof in principal amounts of $2,000 or an integral multiple of $1,000 thereafter, on the
date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20
calendar days or more than 30 calendar days following the date of the Fundamental Change Company
Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid
interest thereon (including any Contingent Interest or Additional Interest, if any) to, but
excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”),
unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to
the Interest Payment Date to which such Regular Record Date relates, in which case the Company
shall instead pay the full amount of accrued and unpaid interest to Holders of record as of such
Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the
principal amount of Notes to be repurchased pursuant to this Article 15.



               (b) Repurchases of Notes under this Section 15.01 shall be made, at the option of the Holder
thereof, upon:




     (i) delivery to the Paying Agent by a Holder of a duly completed notice (the
“Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the
Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in
compliance with the Depositary’s procedures for surrendering interests in Global
Notes, if the Notes are Global Notes, in each case on or before the close of
business on the Business Day immediately preceding the Fundamental Change Repurchase
Date; and



57









 






     (ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying
Agent at any time after delivery of the Fundamental Change Repurchase Notice
(together with all necessary endorsements for transfer) at the Corporate Trust
Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are
Global Notes, in compliance with the procedures of the Depositary, in each case such
delivery being a condition to receipt by the Holder of the Fundamental Change
Repurchase Price therefor.



          The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall
state:





     (iii) in the case of Physical Notes, the certificate numbers of the Notes to be
delivered for repurchase;




     (iv) the portion of the principal amount of Notes to be repurchased, which must
be $2,000 or an integral multiple of $1,000 thereafter; and




     (v) that the Notes are to be repurchased by the Company pursuant to the
applicable provisions of the Notes and this Indenture;


provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice
must comply with appropriate Depositary procedures.




          Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this Section 15.01 shall have the right to
withdraw, in whole or in part, such Fundamental Change Repurchase Notice 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 Paying Agent in accordance with Section 15.03.




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




               (c) On or before the 20th Business Day after the occurrence of the effective date of a
Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee and the
Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental
Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of
the repurchase right at the option of the Holders arising as a result thereof. Such notice shall
be by first class mail or, in the case of Global Notes, in accordance with the applicable
procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish
a notice containing the information set forth in the Fundamental Change Company Notice 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 that time. Each
Fundamental Change Company Notice shall specify:




     (i) the events causing the Fundamental Change;




     (ii) the date of the Fundamental Change;




     (iii) the last date on which a Holder may exercise the repurchase right
pursuant to this Article 15;




     (iv) the Fundamental Change Repurchase Price;




     (v) the Fundamental Change Repurchase Date;




     (vi) the name and address of the Paying Agent;




     (vii) if applicable, that the Notes with respect to which a Fundamental Change
Repurchase Notice has been delivered by a Holder may be converted only if the Holder



58









 







withdraws the Fundamental Change Repurchase Notice in accordance with the terms
of this Indenture; and




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



          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
Notes pursuant to this Section 15.01.




          At the Company’s request, the Trustee shall give such notice in the Company’s name and at the
Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change
Company Notice shall be prepared by the Company. Neither the Trustee nor the Paying Agent shall be
responsible for determining if a Fundamental Change has occurred or for delivering a Fundamental
Change Company Notice to Holders.




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



          Section 15.02. Repurchase at Option of Holders Upon an Option Repurchase Date.




               (a) On March 1, 2018, March 1, 2021 and March 1, 2026, (each an “Option Repurchase Date”),
each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for
cash all of such Holder’s Notes, or any portion thereof in principal amounts of $2,000 or an
integral multiple of $1,000 thereafter, at a repurchase price equal to 100% of the principal amount
thereof, plus accrued and unpaid interest thereon (including any Contingent Interest or Additional
Interest, if any) to, but excluding, the Option Repurchase Date (the “Option Repurchase Price”),
unless the Option Repurchase Date falls after a Regular Record Date but on or prior to the Interest
Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay
the full amount of accrued and unpaid interest to Holders of record as of such Regular Record Date,
and the Option Repurchase Price shall be equal to 100% of the principal amount of Notes to be
repurchased pursuant to this Article 15.



               (b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder
thereof, upon:




     (i) delivery to the Paying Agent by a Holder of a duly completed notice (the
“Option Repurchase Notice”) in the form set forth in Attachment 3 to the Form of
Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance
with the Depositary’s procedures for surrendering interests in Global Notes, if the
Notes are Global Notes, in each case at any time from the opening of business on the
date that is 20 Business Days prior to the relevant Option Repurchase Date until the
close of business on the Business Day immediately preceding the relevant Option
Repurchase Date; and




     (ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying
Agent at any time after delivery of the Option Repurchase Notice (together with all
necessary endorsements for transfer) at the Corporate Trust Office of the Paying
Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in
compliance with the procedures of the



59









 







Depositary, in each case such delivery being a condition to receipt by the
Holder of the Fundamental Change Repurchase Price therefor.



     The Option Repurchase Notice in respect of any Notes to be repurchased shall state:




     (i) in the case of Physical Notes, the certificate numbers of the Notes to be
delivered for repurchase;




     (ii) the portion of the principal amount of Notes to be repurchased, which must
be $2,000 or an integral multiple of $1,000 thereafter; and




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


provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice
must comply with appropriate Depositary procedures.




          Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Option Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in
whole or in part, such Option Repurchase Notice at any time prior to the close of business on the
Business Day immediately preceding the applicable Option Repurchase Date by delivery of a written
notice of withdrawal to the Paying Agent in accordance with Section 15.03.




     (c) On or before the 20th Business Day prior to each Option Repurchase Date, the Company shall
give notice (the “Option Company Notice”) to all Holders of Notes and the Trustee and the Paying
Agent (in the case of a Paying Agent other than the Trustee) of the Option Repurchase Date and the
repurchase right at the option of the Holders arising as a result thereof. Such notice shall be by
first class mail or, in the case of Global Notes, in accordance with the applicable procedures of
the Depositary Simultaneously with providing such notice, the Company shall publish a notice
containing the information set forth in the Option Company Notice 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 that time. Each Option Company Notice shall
specify:




     (i) that Holders have the right to require the Company to purchase all or any
portion of their Notes pursuant to this Section 15.02;




     (ii) the applicable Option Repurchase Date;




     (iii) the last date on which a Holder may exercise the repurchase right
pursuant to this Article 15;




     (iv) the Option Repurchase Price;




     (v) the name and address of the Paying Agent;




     (vi) if applicable, that the Notes with respect to which a Option Repurchase
Notice has been delivered by a Holder may be converted only if the Holder withdraws
the Option Repurchase Notice in accordance with the terms of this Indenture; and




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



          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
Notes pursuant to this Section 15.01.







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          At the Company’s request, the Trustee shall give such notice in the Company’s name and at the
Company’s expense; provided, however, that, in all cases, the text of such Option Company Notice
shall be prepared by the Company. Neither the Trustee nor the Paying Agent shall be responsible
for determining if an Option Repurchase Date is forthcoming or has occurred or for delivering an
Option Company Notice to Holders.




     (d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any Option
Repurchase Date if the principal amount of the Notes has been accelerated, and such acceleration
has not been rescinded, on or prior to such date (except in the case of an acceleration resulting
from a Default by the Company in the payment of the Option Repurchase Price with respect to such
Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes
held by it during the acceleration of the Notes (except in the case of an acceleration resulting
from a Default by the Company in the payment of the Option Repurchase Price with respect to such
Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures
of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as
the case may be, the Option Repurchase Notice with respect thereto shall be deemed to have been
withdrawn.



          Section 15.03. Withdrawal of Fundamental Change Repurchase Notice or Option Repurchase
Notice. (a) A Fundamental Change Repurchase Notice or an Option Repurchase Notice may be withdrawn
(in whole or in part) by means of a written notice of withdrawal delivered to the Corporate Trust
Office of the Paying Agent in accordance with this Section 15.03 at any time prior to the close of
business on the Business Day immediately preceding the Fundamental Change Repurchase Date or the
Option Repurchase Date, as applicable, specifying:





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




     (ii) if Physical Notes have been issued, the certificate number of the Note in
respect of which such notice of withdrawal is being submitted, and




     (iii) the principal amount, if any, of such Note that remains subject to the
original Fundamental Change Repurchase Notice or Option Repurchase Notice, as
applicable, which portion must be in principal amounts of $2,000 or an integral
multiple of $1,000 thereafter;


provided, however, that if the Notes are Global Notes, the notice must comply with appropriate
procedures of the Depositary.




          Section 15.04. Deposit of Fundamental Change Repurchase Price and Option Repurchase Price.




               (a) The Company will deposit with the Trustee (or other Paying Agent appointed by the Company,
or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as
provided in Section 4.04) on or prior to 11:00 a.m., New York City time, on the Fundamental Change
Repurchase Date or the applicable Option Repurchase Date, an amount of cash sufficient to
repurchase all of the Notes to be repurchased at the appropriate Fundamental Change Repurchase
Price or Option Repurchase Price, as applicable. Subject to receipt of funds and/or Notes by the
Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for
repurchase (and not withdrawn prior to the close of business on the Business Day immediately
preceding the Fundamental Change Repurchase Date or Option Repurchase Date, as applicable ) will be
made on the later of (i) the Fundamental Change Repurchase Date or Option Repurchase Date, as
applicable, with respect to such Note (provided the Holder has satisfied the conditions in Section
15.01 or Section 15.02, as applicable) and (ii) the time of book-entry transfer or the delivery of
such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in
the manner required by Section 15.01 or Section 15.02, as applicable, by mailing checks for the
amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note
Register; provided, however, that payments of cash to the Depositary shall be made by wire transfer
of immediately available funds to the account of the Depositary or its nominee. The Trustee shall,
promptly after such payment and upon written demand by the Company, return to the Company any funds
in excess of the Fundamental Change Repurchase Price or the Option Repurchase Price, as applicable.



61









 





               (b) If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date or the
Option Repurchase Date, as applicable, the Trustee (or other Paying Agent appointed by the Company)
holds cash sufficient to make payment on all the Notes or portions thereof that are to be
repurchased on such Fundamental Change Repurchase Date or Option Repurchase Date, then (i) such
Notes will cease to be outstanding, (ii) interest will cease to accrue on such Notes (whether or
not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee
or Paying Agent) and (iii) all other rights of the Holders of such Notes will terminate (other than
the right to receive the Fundamental Change Repurchase Price or Option Repurchase Price, as
applicable).



               (c) Upon surrender of a Note that is to be repurchased in part pursuant to Section 15.01 or
Section 15.02, the Company shall execute and the Trustee shall authenticate and deliver to the
Holder a new Note in an authorized denomination equal in principal amount to the unrepurchased
portion of the Note surrendered.



          Section 15.05. Covenant to Comply with Applicable Laws Upon Repurchase of Notes. In
connection with any repurchase offer, the Company will, if required:




               (a) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules
under the Exchange Act;



               (b) file a Schedule TO or any successor or similar schedule; and



               (c) otherwise comply with all federal and state securities laws in connection with any offer
by the Company to repurchase the Notes;


in each case, so as to permit the rights and obligations under this Article 15 to be exercised in
the time and in the manner specified in this Article 15.




          Section 15.06. Purchase by Third Party. Notwithstanding the foregoing provisions of this
Article 15, the Company shall not be required to issue a Fundamental Change Company Notice upon a
Fundamental Change if a third party (i) issues a Fundamental Change Company Notice in the manner,
at the times and otherwise in compliance with the requirements set forth in Section 15.01(c)
applicable to a Fundamental Change Company Notice made by the Company and otherwise complies with
the provisions of this Article 15 as if it were the Company, and (ii) purchases and pays for all
Notes validly tendered and not withdrawn pursuant to such Fundamental Change Company Notice.




ARTICLE 16

Optional Redemption




          Section 16.01. Optional Redemption. The Notes shall not be redeemable by the Company prior to
March 1, 2015. On or after March 1, 2015, and prior to March 1, 2018, if the Last Reported Sale
Price of the Common Stock for 20 or more Trading Days in a period of 30 consecutive Trading Days
ending on the Trading Day prior to the date the Company provides a Redemption Notice exceeds 130%
of the Conversion Price in effect on each such Trading Day, the Company may redeem (an “Optional
Redemption”) all or part of the Notes, upon notice as set forth in Section 16.02, at the applicable
Redemption Price. On or after March 1, 2018, the Company may redeem for cash all or part of the
Notes upon notice as set forth in Section 16.02, at the applicable Redemption Price.




          Section 16.02. Notice of Redemption; Selection of Notes.




               (a) In case the Company exercises its Optional Redemption right to redeem all or, as the case
may be, any part of the Notes pursuant to Section 16.01, it shall fix a date for redemption (each,
a “Redemption Date”) and it or, at its written request received by the Trustee not less than 55
calendar days prior to the Redemption Date (or such shorter period of time as may be acceptable to
the Trustee), the Trustee, in the name of and at the expense of the Company shall mail or cause to
be mailed a notice of such redemption (a “Redemption Notice”), not less than 30 nor more than 60
calendar days prior to the Redemption Date to each Holder of Notes so to be redeemed as a whole or
in part at its last address as the same appears on the Note Register; provided, however, that



62









 




if the Company shall give such notice, it shall also give written notice of the Redemption
Date to the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee);
provided that as long as the Notes are held through The Depository Trust Company, such notice may
be made by electronic transmission to The Depository Trust Company, as Holder. Neither the Trustee
nor the Paying Agent shall be responsible for reviewing the Redemption Notice or for the content or
accuracy of such notice. Neither the Trustee nor the Paying Agent shall have any duty to determine
or calculate the Make-Whole Premium, which shall be determined by the Company in accordance with
the provisions of the Indenture, and the Trustee shall not be under any responsibility to determine
the correctness of any such determination and/or calculation and may conclusively rely on the
correctness thereof.




               (b) The Redemption Notice, if mailed in the manner herein provided, shall be conclusively
presumed to have been duly given, whether or not the Holder receives such notice. In any case,
failure to give such Redemption Notice by mail or any defect in the Redemption Notice to the Holder
of any Note designated for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Note.



               (c) Each Redemption Notice shall specify:




     (i) the Redemption Date (which must be a Business Day);




     (ii) the Redemption Price, including the type of consideration to be paid for
the Make-Whole Premium;




     (iii) that on the Redemption Date, the Redemption Price will become due and
payable upon each such Note, and that interest thereon, if any, shall cease to
accrue on and after said date;




     (iv) the place or places where such Notes are to be surrendered for payment of
the Redemption Price;




     (v) that Holders may surrender their Notes for conversion at any time prior to
the close of business on the third Scheduled Trading Day immediately preceding the
Redemption Date;




     (vi) the procedures a converting Holder must follow to convert its Notes and
the Settlement Method and Specified Dollar Amount, if applicable;




     (vii) the Conversion Rate and, if applicable, the number of Additional Shares
added to the Conversion Rate in accordance with Section 14.03;




     (viii) the CUSIP, ISIN or other similar numbers, if any, assigned to such
Notes; and




     (ix) in case any Note is to be redeemed in part only, the portion of the
principal amount thereof to be redeemed and on and after the Redemption Date, upon
surrender of such Note, a new Note in principal amount equal to the unredeemed
portion thereof shall be issued.


A Redemption Notice shall be revocable.




               (d) If fewer than all of the outstanding Notes are to be redeemed, the Trustee shall select
the Notes or portions thereof of a Global Note or the Notes in certificated form to be redeemed (in
principal amounts of $2,000 or integral multiples of $1,000 thereafter) by lot, or on a pro rata
basis or by another method as may be requested by the Depositary’s applicable procedures. If any
Note selected for partial redemption is submitted for conversion in part after such selection, the
portion of the Note submitted for conversion shall be deemed (so far as may be possible) to be the
portion selected for redemption.



63









 





          Section 16.03. Payment of Notes Called for Redemption.




               (a) If any Redemption Notice has been given in respect of the Notes in accordance with Section
16.02, the Notes shall become due and payable on the Redemption Date at the place or places stated
in the Redemption Notice and at the applicable Redemption Price. On presentation and surrender of
the Notes at the place or places stated in the Redemption Notice, the Notes shall be paid and
redeemed by the Company at the applicable Redemption Price.



               (b) Prior to the open of business on the Redemption Date, the Company shall deposit with the
Paying Agent or, if the Company or a Subsidiary of the Company is acting as the Paying Agent, shall
segregate and hold in trust as provided in Section 7.05 an amount of cash (in immediately available
funds if deposited on the Redemption Date), sufficient to pay all, or the entire cash portion of,
the Redemption Price of all of the Notes to be redeemed on such Redemption Date.



               (c) Upon any redemption in accordance with this Article 16, the Company shall pay the
Make-Whole Premium with respect to the Notes called for redemption to Holders, at its option, in
cash, shares of Common Stock or a combination of cash and shares of Common Stock and shall specify
the type of consideration for the Make-Whole Premium (and, if a combination, will specify the
dollar amount of the Make-Whole Premium to be paid in cash) in the Notice of Redemption sent by the
Company pursuant to Section 16.02. If the Company does not specify the type of consideration for
the Make-Whole Premium in such Notice of Redemption, the Company shall pay the Make-Whole Premium
entirely in cash.



               (d) Any issuance of shares of Common Stock in respect of the Make-Whole Premium shall be
deemed to have been effected immediately prior to the close of business on the Redemption Date and
the Person or Persons in whose name or names any stock certificate or stock certificates
representing shares of Common Stock shall be issuable upon such redemption shall be deemed to have
become on the Redemption Date the holder or holders of record of the shares represented thereby;
provided, however, that any surrender for redemption on a date when the stock transfer books of the
Company shall be closed shall constitute the Person or Persons in whose name or names the stock
certificate or stock certificates representing such shares are to be issued as the holder or
holders of record of the shares represented thereby for all purposes at the Open of Business on the
next succeeding day on which such stock transfer books are open. No payment or adjustment shall be
made for dividends or distributions on any Common Stock declared prior to the Redemption Date. A
Holder receiving shares of Common Stock in respect of the Make-Whole Premium shall not be entitled
to any rights as a holder of Common Stock, including, among other things, the right to vote and
receive dividends and notices of stockholder meetings, until the Close of Business on the
Redemption Date.



               (e) The Company will not issue a fractional share of Common Stock upon payment of the
Make-Whole Premium. Instead, the Company shall pay cash in lieu of fractional shares based on the
Last Reported Sale Price of Common Stock on the Trading Day prior to the applicable Conversion
Date.



               (f) Any issuance and delivery of stock certificates representing shares of Common Stock on
payment of the Make-Whole Premium shall be made without charge to the Holder of Notes being
redeemed or for any tax or duty in respect of the issuance or delivery of such stock certificates
or the Notes represented thereby; provided, however, that the Company shall not be required to pay
any tax or duty which may be payable in respect of any transfer involved in the issuance or
delivery of stock certificates representing shares of Common Stock in a name other than that of the
Holder of the Notes being redeemed, and no such issuance or delivery shall be made unless the
Persons requesting such issuance or delivery has paid to the Company the amount of any such tax or
duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.



               (g) The Company may, at its option, pay the Make-Whole Premium payable to Holders pursuant to
Section 16.01 upon redemption of the Notes, in shares of Common Stock, if the following conditions
are satisfied:




     (i) The shares of Common Stock to be so issued (A) shall not require
registration under any federal securities law before such shares may be freely
transferable without being subject to any transfer restrictions under the Securities
Act upon redemption or if such



64









 







registration is required, such registration shall be completed and shall become
effective prior to the Redemption Date; and (B) shall not require registration with,
or approval of, any governmental authority under any state law or any other federal
law before shares may be validly issued or delivered upon redemption or if such
registration is required or such approval must be obtained, such registration shall
be completed or such approval shall be obtained prior to the Redemption Date.




     (ii) The shares of Common Stock to be listed upon redemption of Notes hereunder
are, or shall have been, approved for listing on the NASDAQ Global Select Market or
any other stock exchange on which the shares of Common Stock are then listed, in any
case, prior to the Redemption Date, and if the issuance of Common Stock would result
in an amount in excess of the limitations imposed by any shareholder approval rules
or listing standards of any national or regional securities exchange that are
applicable to the Company, the Company shall have previously obtained stockholder
approval of such issuance of Common Stock in excess of such limitations.




     (iii) All shares of Common Stock which may be issued upon redemption of Notes
shall be newly issued shares or treasury shares, shall be duly and validly issued
and fully paid and nonassessable and shall be free from preemptive rights and free
of any lien or adverse claim.




     (iv) If any of the conditions set forth in clauses (i) through (iii) of this
Section 16.03(g) are not satisfied in accordance with the terms thereof, the
Make-Whole Premium shall be paid by the Company only in cash.



               (h) Subject to receipt of funds by the Paying Agent, cash payment for the Notes to be redeemed
shall be made promptly after the later of:




     (i) the Redemption Date for such Notes; and




     (ii) the time of presentation of such Note to the Trustee (or other Paying
Agent appointed by the Company) by the Holder thereof in the manner required by this
Section 16.03.


The Paying Agent shall, promptly after such payment and upon written demand by the Company, return
to the Company any funds in excess of the cash portion of Redemption Price.




          Section 16.04. Restrictions on Redemption. The Company may not redeem any Notes on any date
if (a) the principal amount of the Notes has been accelerated in accordance with the terms of this
Indenture, and such acceleration has not been rescinded, on or prior to the Redemption Date (except
in the case of an acceleration resulting from a Default by the Company in the payment of the
Redemption Price with respect to such Notes) or (b) the Company has not paid or is not
simultaneously paying all accrued and unpaid interest thereon for all periods between Interest
Payment Dates or portions thereof terminating prior to the Redemption Date.




          Section 16.05. No Registration Obligation on Redemption. In the event of any redemption of
the Notes, the Company shall not be required to:




               (a) issue, register the transfer of or exchange any Note during the 15 calendar day period
prior to the date on which a Redemption Notice is deemed to have been given to all Holders of Notes
to be redeemed; or



               (b) register the transfer of or exchange any Notes so selected for redemption, in whole or in
part, except the unredeemed portion of any Notes being redeemed in part.



65









 





ARTICLE 17

GUARANTEE OF NOTES




          Section 17.01. Unconditional Guarantee. Each Guarantor, if any, hereby jointly and
severally, unconditionally and irrevocably guarantees (such guarantee to be referred to herein as a
“Guarantee”) to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, that: (a) all amounts due with respect to the Notes shall be duly
and punctually paid in full when due, whether upon conversion, at maturity, by acceleration or
otherwise, and interest on the overdue principal (including, without limitation, the Redemption
Price, Option Purchase Price and Fundamental Change Repurchase Price, if applicable) and (to the
extent permitted by law) interest, if any, on the Notes and all other obligations of the Company or
the Guarantors to the Holders or the Trustee hereunder or thereunder and all other obligations
shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any Notes or any of such other
obligations, the same shall be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed, or failing performance of any other obligation of the
Company to the Holders under this Indenture or under the Notes, for whatever reason, each Guarantor
shall be obligated to pay, or to perform or cause the performance of, the same immediately. An
Event of Default under this Indenture or the Notes shall constitute an event of default under each
Guarantee, and shall entitle the Holders of Notes to accelerate the obligations of the Guarantors
hereunder in the same manner and to the same extent as the obligations of the Company.




          Each of the Guarantors hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of
any judgment against the Company, any action to enforce the same, whether or not a Guarantee is
affixed to any particular Note, or any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of a guarantor. Each of the Guarantors hereby waives the benefit
of diligence, presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be
discharged except by complete performance of the obligations contained in the Notes, this Indenture
and each Guarantee. Each Guarantee is a guarantee of payment and not of collection. Each
Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes and the
Trustee, on the other hand, (a) subject to this Article 17, the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of each
Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration
in respect of the obligations guaranteed hereby, and (b) in the event of any acceleration of such
obligations as provided in Article 6 hereof, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantors for the purpose of each Guarantee.




          No stockholder, officer, director, employee or incorporator, past, present or future, of any
Guarantor, as such, shall have any personal liability under any Guarantee by reason of his, her or
its status as such stockholder, officer, director, employee or incorporator.




          Each Guarantor that makes a payment or distribution under its Guarantee shall be entitled to a
contribution from each other Guarantor in an amount pro rata, based on the net assets of each
Guarantor, determined in accordance with United States Generally Accepted Accounting Principles.




          Section 17.02. Limitations on Guarantees; Release or Suspension of Particular Guarantors’
Obligations. The obligations of each Guarantor under its Guarantee will be limited to the maximum
amount which, after giving effect to all other contingent and fixed liabilities of such Guarantor
and after giving effect to any collections from or payments made by or on behalf of any other
Guarantors in respect of the obligations of such other Guarantors under their Guarantees or
pursuant to their contribution obligations under this Indenture, will result in the obligations of
such Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer
under federal or state law.







66









 








          Additionally, if any Guarantor is released from its guarantee (rather than a suspension of its
guarantee) of the outstanding indebtedness of the Company or the obligations of any Restricted
Subsidiary as a guarantor of the Company’s Indebtedness, such Guarantor shall be automatically
released from its obligations as Guarantor, and from and after such date, such Guarantor shall
cease to constitute a Guarantor and a Restricted Subsidiary.




          Section 17.03. Execution and Delivery of Guarantee. To further evidence the Guarantee set
forth in Section 17.01, each Guarantor hereby agrees to execute and deliver to the Trustee a
Guarantee in substantially the form of the Form of Notation of Guarantee. Such Guarantee shall be
executed on behalf of each Guarantor by either manual or facsimile signature of an officer or agent
of each Guarantor, each of whom, in each case, shall have been duly authorized to so execute by all
requisite corporate action. The validity and enforceability of any Guarantee shall not be affected
by the fact that it is not affixed to any Note or Notes.




          If an officer or agent of a Guarantor whose signature is on this Indenture or a Guarantee no
longer holds that office at the time the Trustee authenticates a Note to which such Guarantee
relates or at any time thereafter, such Guarantor’s Guarantee of such Note shall be valid
nevertheless.




          The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of any Guarantee set forth in this Indenture on behalf of each Guarantor.




          Section 17.04. Release of a Guarantor due to Extraordinary Events. If no Default exists or
would exist under this Indenture, upon the sale or disposition of all or substantially all of the
assets of a Guarantor, or all of the Capital Stock of a Guarantor (including by consolidation,
merger, issuance or otherwise), by the Company or a Subsidiary of the Company, or upon the
consolidation or merger of a Guarantor with or into any Person (in each case, other than to the
Company or an Affiliate of the Company or a Subsidiary of the Company), or if any Guarantor is
dissolved or liquidated, such Guarantor and each Subsidiary of such Guarantor that is also a
Guarantor, or the Person acquiring such assets (in the event of a sale or other disposition of all
or substantially all of the assets of such Guarantor), shall be deemed automatically and
unconditionally released and discharged from all of its obligations under this Article 17 without
any further action required on the part of the Trustee or any Holder.




          The Trustee shall execute any documents reasonably requested by the Company or a Guarantor in
order to evidence the release of such Guarantor from its obligations under its Guarantee of the
Notes under this Article 17.




          Nothing contained in this Indenture or in any of the Notes shall prevent any consolidation or
merger of a Guarantor with or into the Company or another Guarantor or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.




          Section 17.05. Waiver of Subrogation. Until this Indenture is discharged and all of the
Notes are discharged and paid in full, each Guarantor hereby irrevocably waives and agrees not to
exercise any claim or other rights which it may now or hereafter acquire against the Company that
arise from the existence, payment, performance or enforcement of the Company’s obligations under
the Notes or this Indenture and such Guarantor’s obligations under its Guarantee and this
Indenture, in any such instance including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, and any right to participate in any
claim or remedy of the Holders against the Company, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law, including, without limitation, the
right to take or receive from the Company, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim or other rights. If
any amount shall be paid to any Guarantor in violation of the preceding sentence and any amounts
owing to the Trustee or the Holders of Notes under the Notes, this Indenture, or any other document
or instrument delivered under or in connection with such agreements or instruments, shall not have
been paid in full, such amount shall have been deemed to have been paid to such Guarantor for the
benefit of, and held in trust for the benefit of, the Trustee or the Holders and shall forthwith be
paid to the Trustee for the benefit of itself or such Holders to be credited and applied to the
obligations in favor of the Trustee or the Holders, as the case may be, whether matured or
unmatured, in accordance with the terms of this Indenture. Each Guarantor acknowledges that it
will receive direct and indirect benefits from the financing arrangements contemplated by this
Indenture and that the waiver set forth in this Section 17.05 is knowingly made in contemplation of
such benefits.







67









 








          Section 17.06. No Set-Off. Each payment to be made by a Guarantor hereunder in respect its
obligations for principal (including, without limitation, the Redemption Price, Option Purchase
Price and Fundamental Change Repurchase Price, if applicable), premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under this Indenture or any
other documentation governing the Notes shall be payable in the currency or currencies in which
such obligations are denominated, and shall be made without set-off, counterclaim, reduction or
diminution of any kind or nature.




          Section 17.07. Obligations Absolute. The obligations of each Guarantor hereunder are and
shall be absolute and unconditional and any monies or amounts expressed to be owing or payable by
each Guarantor hereunder which may not be recoverable from such Guarantor on the basis of a
Guarantee shall be recoverable from such Guarantor as a primary obligor and principal debtor in
respect thereof.




          Section 17.08. Obligations Continuing. The obligations of each Guarantor hereunder shall be
continuing and shall remain in full force and effect until all the obligations have been paid and
satisfied in full. Each Guarantor agrees with the Trustee that it will from time to time deliver
to the Trustee suitable acknowledgments of its continued liability hereunder and under any other
instrument or instruments in such form as counsel to the Trustee may advise and as will prevent any
action brought against it in respect of any default hereunder being barred by any statute of
limitations now or hereafter in force and, in the event of the failure of a Guarantor so to do, it
hereby irrevocably appoints the Trustee the attorney and agent of such Guarantor to make, execute
and deliver such written acknowledgment or acknowledgments or other instruments as may from time to
time become necessary or advisable, in the judgment of the Trustee on the advice of counsel, to
fully maintain and keep in force the liability of such Guarantor hereunder.




          Section 17.09. Obligations Not Reduced. Except as otherwise provided in Sections 17.02 and
17.04, the obligations of each Guarantor hereunder shall not be satisfied, reduced or discharged
except solely by the payment of such principal (including, without limitation, the Redemption
Price, Option Purchase Price and Fundamental Change Repurchase Price, if applicable), premium, if
any, interest, fees and other monies or amounts as may at any time prior to discharge of this
Indenture pursuant to Article 3 be or become owing or payable under or by virtue of or otherwise in
connection with the Notes or this Indenture.




          Section 17.10. Obligations Reinstate. The obligations of each Guarantor hereunder shall
continue to be effective or shall be reinstated, as the case may be, if at any time any payment
which would otherwise have reduced the obligations of any Guarantor hereunder (whether such payment
shall have been made by or on behalf of the Company or by or on behalf of a Guarantor) is rescinded
or reclaimed from the Trustee or any of the Holders upon the insolvency, bankruptcy, liquidation or
reorganization of the Company or any Guarantor or otherwise, all as though such payment had not
been made. If demand for, or acceleration of the time for, payment by the Company is stayed upon
the insolvency, bankruptcy, liquidation or reorganization of the Company, all such Indebtedness
otherwise subject to demand for payment or acceleration shall nonetheless be payable by each
Guarantor as provided herein.




          Section 17.11. Obligations Not Affected. Except as otherwise provided in Sections 17.02 and
17.04, the obligations of each Guarantor hereunder shall not be affected, impaired or diminished in
any way by any act, omission, matter or thing whatsoever, occurring before, upon or after any
demand for payment hereunder (and whether or not known or consented to by any Guarantor or any of
the Holders) which, but for this provision, might constitute a whole or partial defense to a claim
against any Guarantor hereunder or might operate to release or otherwise exonerate any Guarantor
from any of its obligations hereunder or otherwise affect such obligations, whether occasioned by
default of any of the Holders or otherwise, including, without limitation:




               (a) any limitation of status or power, disability, incapacity or other circumstance relating
to the Company or any other Person, including any insolvency, bankruptcy, liquidation,
reorganization, readjustment, composition, dissolution, winding up or other proceeding involving or
affecting the Company or any other Person;



               (b) any irregularity, defect, unenforceability or invalidity in respect of any indebtedness or
other obligation of the Company or any other Person under this Indenture, the Notes or any other
document or instrument;



68









 





               (c) any failure of the Company, whether or not without fault on its part, to perform or comply
with any of the provisions of this Indenture or the Notes, or to give notice thereof to a
Guarantor;



               (d) the taking or enforcing or exercising or the refusal or neglect to take or enforce or
exercise any right or remedy from or against the Company or any other Person or their respective
assets or the release or discharge of any such right or remedy;



               (e) the granting of time, renewals, extensions, compromises, concessions, waivers, releases,
discharges and other indulgences to the Company or any other Person;



               (f) any change in the time, manner or place of payment of, or in any other term of, any of the
Notes, or any other amendment, variation, supplement, replacement or waiver of, or any consent to
departure from, any of the Notes or this Indenture, including, without limitation, any increase or
decrease in any amount due with respect to any of the Notes;



               (g) any change in the ownership, control, name, objects, businesses, assets, capital structure
or constitution of the Company or a Guarantor;



               (h) any merger or amalgamation of the Company or a Guarantor with any Person or Persons;



               (i) the occurrence of any change in the laws, rules, regulations or ordinances of any
jurisdiction by any present or future action of any governmental authority or court amending,
varying, reducing or otherwise affecting, or purporting to amend, vary, reduce or otherwise affect,
any of the obligations of the Company or the Guarantor under this Indenture or a Guarantor under
its Guarantee; and



               (j) any other circumstance (other than by complete, irrevocable payment) that might otherwise
constitute a legal or equitable discharge or defense of the Company under this Indenture or the
Notes or of a Guarantor in respect of its Guarantee hereunder.



          Section 17.12. Waiver. Without in any way limiting the provisions of Section 17.01 hereof,
each Guarantor hereby waives notice of acceptance hereof, notice of any liability of any Guarantor
hereunder, notice or proof of reliance by the Holders upon the obligations of any Guarantor
hereunder, and diligence, presentment, demand for payment on the Company, protest, notice of
dishonor or non-payment of any of the obligations for principal (including, without limitation, the
Redemption Price, Option Purchase Price and Fundamental Change Repurchase Price, if applicable),
premium, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under this Indenture or any other documentation governing the Notes, or other notice or
formalities to the Company or any Guarantor of any kind whatsoever.




          Section 17.13. No Obligation to Take Action Against the Company. Neither the Trustee nor any
other Person shall have any obligation to enforce or exhaust any rights or remedies or to take any
other steps under any security for the obligations for principal (including, without limitation,
the Redemption Price, Option Purchase Price and Fundamental Change Repurchase Price, if
applicable), premium, interest, penalties, fees, indemnifications, reimbursements, damages and
other liabilities payable under this Indenture or any other documentation governing the Notes, or
against the Company or any other Person or any Property of the Company or any other Person before
the Trustee is entitled to demand payment and performance by any or all Guarantors of their
liabilities and obligations under their Guarantees or under this Indenture.




          Section 17.14. Dealing with the Company and Others. The Holders, without releasing,
discharging, limiting or otherwise affecting in whole or in part the obligations and liabilities of
any Guarantor hereunder and without the consent of or notice to any Guarantor, may:




               (a) grant time, renewals, extensions, compromises, concessions, waivers, releases, discharges
and other indulgences to the Company or any other Person;



69









 





               (b) take or abstain from taking security or collateral from the Company or from perfecting
security or collateral of the Company;



               (c) release, discharge, compromise, realize, enforce or otherwise deal with or do any act or
thing in respect of (with or without consideration) any and all collateral, mortgages or other
security given by the Company or any third party with respect to the obligations or matters
contemplated by this Indenture or the Notes;



               (d) accept compromises or arrangements from the Company;



               (e) apply all monies at any time received from the Company or from any security upon such part
of the Obligations as the Holders may see fit or change any such application in whole or in part
from time to time as the Holders may see fit; and



               (f) otherwise deal with, or waive or modify their right to deal with, the Company and all
other Persons and any security as the Holders or the Trustee may see fit.



          Section 17.15. Default and Enforcement. If any Guarantor fails to pay in accordance with
Section 17.01. hereof, the Trustee may proceed in its name as trustee hereunder in the
enforcement of the Guarantee of any such Guarantor and such Guarantor’s obligations thereunder and
hereunder by any remedy provided by law, whether by legal proceedings or otherwise, and to recover
from such Guarantor the obligations.




          Section 17.16. Amendment, etc. No amendment, modification or waiver of any provision of this
Indenture relating to any Guarantor or consent to any departure by any Guarantor or any other
Person from any such provision will in any event be effective or affect the obligation of any other
Guarantor unless it is signed by such Guarantor and the Trustee.




          Section 17.17. Acknowledgment. Each Guarantor hereby acknowledges communication of the terms
of this Indenture and the Notes and consents to and approves of the same.




          Section 17.18. Costs and Expenses. Each Guarantor shall pay on demand by the Trustee any and
all costs, fees and expenses (including, without limitation, legal fees) incurred by the Trustee,
its agents, advisors and counsel or any of the Holders in enforcing any of their rights under any
Guarantee.




          Section 17.19. No Merger or Waiver; Cumulative Remedies. No Guarantee shall operate by way
of merger of any of the obligations of a Guarantor under any other agreement, including, without
limitation, this Indenture. No failure to exercise and no delay in exercising, on the part of the
Trustee or the Holders, any right, remedy, power or privilege hereunder or under the Notes or the
Guarantees, shall operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder or under this Indenture or the Notes or the Guarantees
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges in the Guarantee and under this Indenture,
the Notes and any other document or instrument between a Guarantor and/or the Company and the
Trustee are cumulative and not exclusive of any rights, remedies, powers and privileges provided by
law.




          Section 17.20. Survival of Obligations. Without prejudice to the survival of any of the
other obligations of each Guarantor hereunder, the obligations of each Guarantor under Section
17.01 shall survive until the indefeasible payment in full of the obligations for principal
(including, without limitation, the Redemption Price, Option Purchase Price and Fundamental Change
Repurchase Price, if applicable), premium, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under this Indenture or any other
documentation governing the Notes and shall be enforceable against such Guarantor without regard to
and without giving effect to any defense, right of offset or counterclaim available to or which may
be asserted by the Company or any Guarantor.




          Section 17.21. Guarantee in Addition to Other Obligations. The obligations of each Guarantor
under its Guarantee and this Indenture are in addition to and not in substitution for any other
obligations to the Trustee or to






70









 







any of the Holders in relation to this Indenture or the Notes and any guarantees or security
at any time held by or for the benefit of any of them.




          Section 17.22. Severability. Any provision of this Article 17 which is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction unless its removal would substantially defeat the basic
intent, spirit and purpose of this Indenture and this Article 17.




          Section 17.23. Successors and Assigns. Each Guarantee shall be binding upon and inure to the
benefit of each Guarantor and the Trustee and the Holders and their respective successors and
permitted assigns, except that no Guarantor may assign any of its obligations hereunder or
thereunder.




          Section 17.24. Acknowledgement under TIA. Each Guarantor acknowledges that, by virtue of its
Guarantee, it is becoming an “obligor” on indenture securities under the Trust Indenture Act.




ARTICLE 18

Miscellaneous Provisions




          Section 18.01. Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements of the Company and the Guarantors contained in this Indenture shall bind
its successors and assigns whether so expressed or not.




          Section 18.02. Official Acts by Successor Corporation. Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by any board, committee
or Officer of the Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation or other entity that shall at the time be the
lawful sole successor of the Company.




          Section 18.03. Addresses for Notices, Etc. Any notice or demand that by any provision of
this Indenture is required or permitted to be given or served by the Trustee or by the Holders on
the Company or the Guarantors shall be deemed to have been sufficiently given or made, for all
purposes if given or served by being deposited postage prepaid by registered or certified mail in a
post office letter box addressed (until another address is filed by the Company with the Trustee)
to Altra Holdings, Inc., 300 Granite Street, Suite 201, Braintree, Massachusetts 02184, Attention:
General Counsel. Any notice, direction, request or demand hereunder to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all purposes, if given or served by being
deposited postage prepaid by registered or certified mail in a post office letter box addressed to
the Corporate Trust Office.




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




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




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




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




          In addition to the foregoing, the Trustee agrees to accept and act upon notice, instructions
or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other
similar unsecured electronic






71









 







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




          Section 18.04. Governing Law. THIS INDENTURE AND EACH NOTE, AND ANY CLAIM, CONTROVERSY OR
DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF
LAWS PROVISIONS THEREOF).




          Section 18.05. Evidence of Compliance with Conditions Precedent; Certificates and Opinions of
Counsel to Trustee. Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officers’ Certificate stating that such action is permitted by
the terms of this Indenture.




          Each Officers’ Certificate provided for, by or on behalf of the Company in this Indenture and
delivered to the Trustee with respect to compliance with this Indenture (other than the Officers’
Certificates provided for in Section 4.08) shall include (a) a statement that the Person making
such certificate is familiar with the requested action and this Indenture; (b) a brief statement as
to the nature and scope of the examination or investigation upon which the statement contained in
such certificate is based; (c) a statement that, in the judgment of such person, he or she has made
such examination or investigation as is necessary to enable him or her to express an informed
judgment as to whether or not such action is permitted by this Indenture; and (d) a statement as to
whether or not, in the judgment of such Person, such action is permitted by this Indenture.




          Notwithstanding anything to the contrary in this Section 18.05, if any provision in this
Indenture specifically provides that the Trustee shall or may receive an Opinion of Counsel in
connection with any action to be taken by the Trustee or the Company hereunder, the Trustee shall
be entitled to, or entitled to request, such Opinion of Counsel. An Officers’ Certificate
delivered to the Trustee under this Section 18.05 shall be deemed sufficient to satisfy this
provision for purposes of authenticating Notes on the date hereof; provided, however, that in no
event shall the foregoing derogate the Trustee’s entitlement to an Opinion of Counsel at any other
time under this Indenture.




          Section 18.06. Legal Holidays. If any Interest Payment Date (other than an Interest Payment
Date coinciding with the Maturity Date or earlier Fundamental Change Repurchase Date or Option
Repurchase Date) falls on a day that is not a Business Day, such Interest Payment Date shall be
postponed to the next succeeding Business Day. If the Maturity Date or earlier Fundamental Change
Repurchase Date or Option Repurchase Date would fall on a day that is not a Business Day, the
required payment of interest, if any, and principal shall be made on the next succeeding Business
Day, and no interest on such payment shall accrue for the period from and after the Maturity Date
or earlier Fundamental Change Repurchase Date or Option Repurchase Date to such next succeeding
Business Day.




          Section 18.07. No Security Interest Created. Nothing in this Indenture or in the Notes,
expressed or implied, shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any
jurisdiction.




          Section 18.08. Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed
or implied, shall give to any Person, other than the parties hereto, any Paying Agent, any
Conversion Agent, any Bid Solicitation Agent, any authenticating agent, any Note Registrar and
their successors hereunder or the Holders, any benefit or any legal or equitable right, remedy or
claim under this Indenture.







72









 








          Section 18.09. Table of Contents, Headings, Etc. The table of contents and the titles and
headings of the articles and sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.




          Section 18.10. Authenticating Agent. The Trustee may appoint an authenticating agent that
shall be authorized to act on its behalf and subject to its direction in the authentication and
delivery of Notes in connection with the original issuance thereof and transfers and exchanges of
Notes hereunder, including under Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section
10.04 and Section 15.04 as fully to all intents and purposes as though the authenticating agent had
been expressly authorized by this Indenture and those Sections to authenticate and deliver Notes.
For all purposes of this Indenture, the authentication and delivery of Notes by the authenticating
agent shall be deemed to be authentication and delivery of such Notes “by the Trustee” and a
certificate of authentication executed on behalf of the Trustee by an authenticating agent shall be
deemed to satisfy any requirement hereunder or in the Notes for the Trustee’s certificate of
authentication. Such authenticating agent shall at all times be a Person eligible to serve as
trustee hereunder pursuant to Section 7.08.




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




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




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




          The provisions of Section 7.02, Section 7.03, Section 7.04, Section 8.03 and this Section
18.10 shall be applicable to any authenticating agent.




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



          
                   
                      
           ,




as Authenticating Agent, certifies that this is one of the Notes described




in the within-named Indenture.




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

	 	 
	Authorized Officer	 	 






          Section 18.11. Execution in Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.




          Section 18.12. Severability. In the event any provision of this Indenture or in the Notes
shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity,
legality or enforceability of the remaining provisions shall not in any way be affected or
impaired.







73









 








          Section 18.13. Waiver of Jury Trial. EACH OF THE COMPANY, THE GUARANTORS AND THE TRUSTEE
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR
THE TRANSACTION CONTEMPLATED HEREBY.




          Section 18.14. Force Majeure. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts that are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.




          Section 18.15. Calculations. Except as otherwise provided herein, the Company or its agents
shall be responsible for making all calculations called for under this Indenture or the Notes, and
none of the Trustee, Conversion Agent, Note Registrar, Bid Solicitation Agent or Paying Agent (in
each case, if different from the Company) shall have any responsibility for making such
calculations. These calculations include, but are not limited to, determinations of the Last
Reported Sale Prices of the Common Stock, accrued interest payable on the Notes and the Conversion
Rate of the Notes. The Company or its agents shall make all these calculations in good faith and,
absent manifest error, their calculations shall be final and binding on Holders of Notes. The
Company or its agents shall provide a schedule of their calculations to each of the Trustee and the
Conversion Agent, and each of the Trustee and Conversion Agent is entitled to rely conclusively
upon the accuracy of their calculations without independent verification. The Trustee will forward
the Company’s or its agent’s calculations to any Holder of Notes upon the request of that Holder at
the sole cost and expense of the Company.







          Section
18.16.   NASDAQ Limitation. Notwithstanding anything therein to the contrary, the listing standards of the NASDAQ Global Select Market and the NASDAQ Global Market generally require the Company
to obtain the approval of its stockholders before entering into certain transactions that potentially result in the
issuance of 20% or more of the Common Stock outstanding at the time the Notes are issued unless the Company
obtains stockholder approval of issuances in excess of such limitations. In accordance with these listing standards, these restrictions will apply at any time when the Notes are outstanding, regardless of whether the Company then
has a class of securities listed on the NASDAQ Global Select Market or the NASDAQ Global Market. Accordingly, we shall be prohibited from redeeming, repurchasing or converting the Notes and from paying any interest or Make-Whole Premium in Common Stock in accordance with the provisions of this Indenture if, as a result of such action, the aggregate number of shares of Common Stock to be issued under such Notes equals or exceeds 20% of the
Common Stock outstanding at the time the Notes are issued. In such event, we will, at our option, either obtain
stockholder approval of such issuances or deliver cash in lieu of any shares otherwise deliverable upon conversions
in excess of such limitations based on the Daily VWAP on each Trading Day of the relevant Observation Period in respect of which, in lieu of delivering Common Stock, we deliver cash pursuant to this paragraph.







74









 






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







	 	 	 	 	 	 	 

	 	 	ALTRA HOLDINGS, INC.,	 	 
	 	 	as Issuer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Glenn E. Deegan
 

Name: Glenn E. Deegan
	 	 
	 

	 	 	 	Title: Vice President, Legal and Human
Resources, General Counsel and Secretary	 	 






	 	 	 	 	 	 	 

	 	 	Authorized signatory for each of the Guarantors listed on Schedule I hereto	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Glenn E. Deegan
 

	 	 
	 

	 	 	 	Name: Glenn E. Deegan	 	 
	 

	 	 	 	Title: Vice President, Legal and Human Resources,
General Counsel and Secretary	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Glenn E. Deegan
 

	 	 
	 

	 	 	 	Name: Glenn E. Deegan	 	 
	 

	 	 	 	Title: Secretary	 	 





Indenture

















 






	 	 	 	 	 	 	 

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

	 	By:
	 	/s/ Raymond Torres
 

	 	 
	 

	 	 	 	Name: Raymond Torres	 	 
	 

	 	 	 	Title: Senior Associate	 	 






Indenture
















 






	 	 	 	 	 



EXHIBIT A




[FORM OF FACE OF NOTE]

[INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]




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




[INCLUDE FOLLOWING LEGEND IF A RESTRICTED SECURITY]




          [THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS
SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NONE OF THIS SECURITY, THE COMMON STOCK,
IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN
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.




          (a) THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A)
IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (B) IT
IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH
PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, OR (C) IT IS AN “ACCREDITED INVESTOR”
WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT AND (2) AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO
RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT, ONLY (A) TO ALTRA HOLDINGS,
INC. (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL
BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN
ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D)
TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH,
ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN





1









 







DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE
TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSE (C), (D) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES
SET FORTH IN RULE 144 UNDER THE SECURITIES ACT.]




[INCLUDE THE FOLLOWING LEGEND IN ALL SECURITIES]




          FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE “CODE”), THIS SECURITY IS BEING ISSUED WITH TAX ORIGINAL ISSUE DISCOUNT. THE ISSUE
PRICE OF THIS SECURITY IS $1,000 PER $1,000 OF PRINCIPAL AMOUNT, AND THE ISSUE DATE OF THIS
SECURITY IS MARCH 7, 2011. IN ADDITION, THIS SECURITY IS SUBJECT TO UNITED STATES FEDERAL INCOME
TAX REGULATIONS GOVERNING CONTINGENT PAYMENT DEBT INSTRUMENTS. FOR PURPOSES OF SECTIONS 1272, 1273
AND 1275 OF THE CODE, THE COMPARABLE YIELD OF THIS SECURITY IS 8.25% COMPOUNDED SEMI-ANNUALLY
(WHICH WILL BE TREATED AS THE YIELD TO MATURITY FOR UNITED STATES FEDERAL INCOME TAX PURPOSES).




          FOR UNITED STATES FEDERAL INCOME TAX PURPOSES, PURSUANT TO SECTION 13.04 OF THE INDENTURE, THE
COMPANY AGREES, AND BY ACCEPTANCE OF A BENEFICIAL INTEREST IN THIS SECURITY, EACH HOLDER AND ANY
BENEFICIAL OWNER OF THIS SECURITY SHALL BE DEEMED TO HAVE AGREED, TO (1) TREAT THIS SECURITY AS
DEBT INSTRUMENTS THAT ARE SUBJECT TO TREASURY REGULATION SECTION 1.1275-4 OR ANY SUCCESSOR
PROVISION (THE “CONTINGENT PAYMENT REGULATIONS”), (2) TREAT THE SUM OF THE AMOUNT OF ANY CASH PLUS
THE FAIR MARKET VALUE OF ANY COMMON STOCK RECEIVED UPON CONVERSION OF THIS SECURITY AS A CONTINGENT
PAYMENT FOR PURPOSES OF THE CONTINGENT PAYMENT REGULATIONS, (3) ACCRUE INTEREST WITH RESPECT TO
THIS SECURITY AS ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES ACCORDING TO
THE “NONCONTINGENT BOND METHOD” SET FORTH IN THE CONTINGENT PAYMENT REGULATIONS, AND (4) BE BOUND
BY THE COMPANY’S DETERMINATION OF THE “COMPARABLE YIELD” AND “PROJECTED PAYMENT SCHEDULE,” EACH
WITHIN THE MEANING OF THE CONTINGENT PAYMENT REGULATIONS, WITH RESPECT TO THE SECURITY.




          THE COMPANY AGREES TO PROVIDE PROMPTLY TO THE HOLDER OF THIS SECURITY, UPON WRITTEN REQUEST,
THE ISSUE PRICE, AMOUNT OF TAX ORIGINAL ISSUE DISCOUNT, ISSUE DATE, COMPARABLE YIELD AND PROJECTED
PAYMENT SCHEDULE. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO ALTRA HOLDINGS, INC. AT THE FOLLOWING
ADDRESS: 300 GRANITE STREET, SUITE 201, BRAINTREE, MASSACHUSETTS 02184, ATTENTION: CHIEF FINANCIAL
OFFICER.





2









 








ALTRA HOLDINGS, INC.




2.75% Convertible Senior Notes due 2031



			
	 	 	 
	No. [___]
	 	Initially $[_______]





CUSIP No. [_______]




          Altra Holdings, Inc., a corporation duly organized and validly existing under the laws of the
State of Delaware (the “Company,” which term includes any successor corporation or other entity
under the Indenture referred to on the reverse hereof), for value received hereby promises to pay
to [CEDE & CO.] [_____], or registered assigns, the principal sum as set forth in the “Schedule of
Exchanges of Notes” attached hereto, which amount, taken together with the principal amounts of all
other outstanding Notes, shall not, unless permitted by the Indenture, exceed $[_______] in
aggregate at any time (or $[_______] if the Initial Purchasers exercise their option to purchase
additional Notes in full as set forth in the Purchase Agreement), in accordance with the rules and
procedures of the Depositary, on March 1, 2031, and interest thereon as set forth below.




          This Note shall bear interest at the rate of 2.75% per year from March 7, 2011, or from the
most recent date to which interest had been paid or provided for to, but excluding, the next
scheduled Interest Payment Date until March 1, 2031. Interest is payable semi-annually in arrears
on each March 1 and September 1, commencing on September 1, 2011, to Holders of record at the close
of business on the preceding February 15 and August 15 (whether or not such day is a Business Day),
respectively. Contingent Interest will be payable as set forth in Section 13.01(a), and Additional
Interest will be payable as set forth in Section 4.06(d), Section 4.06(e) and Section 6.03, of the
Indenture. Any reference to interest on, or in respect of, any Note therein shall be deemed to
include (a) Additional Interest if, in such context, Additional Interest is, was or would be
payable pursuant to any of such Section 4.06(d), Section 4.06(e) or Section 6.03 and (b) Contingent
Interest if, in such context, Contingent Interest is, was or would be payable pursuant to Section
13.01(a). Any express mention of the payment of Additional Interest or Contingent Interest in any
provision therein shall not be construed as excluding Additional Interest or Contingent Interest,
respectively, in those provisions thereof where such express mention is not made.




          The Company shall pay the principal of and interest on this Note, so long as such Note is a
Global Note, in immediately available funds to the Depositary or its nominee, as the case may be,
as the registered Holder of such Note. As provided in and subject to the provisions of the
Indenture, the Company shall pay the principal of any Notes (other than Notes that are Global
Notes) at the office or agency designated by the Company for that purpose. The Company has
initially designated the Trustee as its Paying Agent and Note Registrar in respect of the Notes and
its agency where Notes may be presented for payment or for registration of transfer.




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




          This Note, and any claim, controversy or dispute arising under or related to this Note, shall
be construed in accordance with and governed by the laws of the State of New York (without regard
to the conflicts of laws provisions thereof).




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




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




[Remainder of page intentionally left blank]






A-1









 








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




	 	 	 	 	 

	 	 	ALTRA HOLDINGS, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name: Glenn E. Deegan
	 

	 	 	 	Title: Vice President, Legal and Human
Resources, 

General Counsel and Secretary






Dated: March 7, 2011



TRUSTEE’S CERTIFICATE OF AUTHENTICATION




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

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

in the within-named Indenture.




	 	 	 	 

	By:
	 	 	 
	 

	 

Name:
	 	 
	 

	Title:	 	 






A-2









 






[FORM OF REVERSE OF NOTE]




ALTRA HOLDINGS, INC.



2.75% Convertible Senior Notes due 2031



          This Note is one of a duly authorized issue of Notes of the Company, designated as its 2.75%
Convertible Senior Notes due 2031 (the “Notes”), limited to the aggregate principal amount of
$[_______] (or $[_______] if the Initial Purchasers exercise their option to purchase additional
Notes in full as set forth in the Purchase Agreement), all issued or to be issued under and
pursuant to an Indenture dated as of March 7, 2011 (the “Indenture”), between the Company, the
Guarantors named therein 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 Notes. Additional Notes may be issued in an unlimited aggregate
principal amount, subject to certain conditions specified in the Indenture.




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




          Subject to the terms and conditions of the Indenture, the Company will make all payments and
deliveries in respect of the Fundamental Change Repurchase Price or the Option Repurchase Price, as
applicable, and the principal amount on the Maturity Date, as the case may be, to the Holder who
surrenders a Note to a Paying Agent to collect such payments in respect of the Note.




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




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




          The Notes are issuable in registered form without coupons in denominations of $2,000 principal
amount and integral multiples of $1,000 thereafter. At the office or agency of the Company
referred to on the face hereof, and in the manner and subject to the limitations provided in the
Indenture, Notes may be exchanged for a like aggregate principal amount of Notes of other
authorized denominations, without payment of any service charge but, if required by the Company or
Trustee, with payment of a sum sufficient to cover any transfer or similar tax that may be imposed
in connection therewith as a result of the name of the Holder of the new Notes issued upon such
exchange of Notes being different from the name of the Holder of the old Notes surrendered for such
exchange.




          The Notes shall be redeemable at the Company’s option in accordance with the terms and
conditions specified in the Indenture.




          Subject to the provisions of the Indenture, upon the occurrence of a Fundamental Change, the
Holder has the right, at such Holder’s option, to require the Company to repurchase for cash all of
such Holder’s Notes or any portion thereof (in principal amounts of $2,000 or integral multiples of
$1,000 thereafter) on the Fundamental Change Repurchase Date at a price equal to the Fundamental
Change Repurchase Price.







A-3









 








          Subject to the provisions of the Indenture, on each Option Repurchase Date, the Holder has the
right, at such Holders option to require the Company to repurchase for cash all of such Holder’s
Notes or any portion thereof (in principal amounts of $2,000 or integral multiples of $1,000
thereafter) at a price equal to the Option Repurchase Price.




          Subject to the provisions of the Indenture, the Holder hereof has the right, at its option,
during certain periods and upon the occurrence of certain conditions specified in the Indenture,
prior to the close of business on the third Scheduled Trading Day immediately preceding the
Maturity Date, to convert any Notes or portion thereof that is $2,000 or an integral multiple of
$1,000 thereafter, into cash, shares of Common Stock or a combination of cash and shares of Common
Stock, as applicable, at the Conversion Rate specified in the Indenture, as adjusted from time to
time as provided in the Indenture.




          This Note will be entitled to the benefits of certain Guarantees, if any, made for the benefit
of the Holders. Reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and obligations thereunder of the Guarantors, the Trustee and
the Holders.




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







A-4









 








ABBREVIATIONS




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



TEN COM = as tenants in common



UNIF GIFT MIN ACT = Uniform Gifts to Minors Act



CUST = Custodian



TEN ENT = as tenants by the entireties



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




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







A-5









 








SCHEDULE A




SCHEDULE OF EXCHANGES OF NOTES




ALTRA HOLDINGS, INC.



2.75% Convertible Senior Notes due 2031



     The initial principal amount of this Global Note is SEVENTY-FIVE MILLION DOLLARS
($75,000,000). The following increases or decreases in this Global Note have been made:



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





A-6









 





ATTACHMENT 1




[FORM OF NOTICE OF CONVERSION]




          The undersigned registered owner of this Note hereby exercises the option to convert this
Note, or the portion hereof (that is $2,000 principal amount or an integral multiple of $1,000
thereafter) below designated, into cash, shares of Common Stock or a combination of cash and shares
of Common Stock, as applicable, in accordance with the terms of the Indenture referred to in this
Note, and directs that any cash payable and any shares of Common Stock issuable and deliverable
upon such conversion, together with any cash for any fractional share, and any Notes representing
any unconverted principal amount hereof, be issued and delivered to the registered Holder hereof
unless a different name has been indicated below. If any shares of Common Stock or any portion of
this Note not converted are to be issued in the name of a Person other than the undersigned, the
undersigned will pay all transfer or similar taxes in accordance with Section 14.02(e) of the
Indenture. Any amount required to be paid to the undersigned on account of interest accompanies
this Note.




	 	 	 	 	 

	Dated:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	 
	Signature Guarantee

	 	Signature(s)
	 
	 	 	 	 
	Signature(s) must be guaranteed
by an eligible Guarantor Institution
(banks, stock brokers, savings and
loan associations and credit unions)
with membership in an approved
signature guarantee medallion program
pursuant to Securities and Exchange
Commission Rule 17Ad-15 if shares
of Common Stock are to be issued, or
Notes are to be delivered, other than
to and in the name of the registered holder.	 	 
	 
	 	 	 	 
	Fill in for registration of shares if
to be issued, and Notes if to
be delivered, other than to and in the
name of the registered holder:	 	 
	 
	 	 	 	 
	 	 	 
	(Name)
	 	 	 	 
	 
	 	 	 	 
	 	 	 
	(Street Address)	 	 
	 
	 	 	 	 
	 	 	 
	(City, State and Zip Code)	 	 
	Please print name and address	 	 
	 
	 	 	 	 
	Principal amount to be converted (if less than all):
	$ ______,000	 	 






A-7









 






	 	 	 

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

Social Security or Other Taxpayer

	 	 
	Identification Number
	 	 






A-8









 






ATTACHMENT 2




ALTRA HOLDINGS, INC.




[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]



          The undersigned registered owner of this Note hereby acknowledges receipt of a notice from
Altra Holdings, Inc. (the “Company”) as to the occurrence of a Fundamental Change with respect to
the Company and specifying the Fundamental Change Repurchase Date and requests and instructs the
Company to pay to the registered holder hereof in accordance with the applicable provisions of the
Indenture referred to in this Note (1) the entire principal amount of this Note, or the portion
thereof (that is $2,000 principal amount or an integral multiple of $1,000 thereafter) below
designated, and (2) if such Fundamental Change Repurchase Date does not fall during the period
after a Regular Record Date and on or prior to the corresponding Interest Payment Date, accrued and
unpaid interest, if any, thereon to, but excluding, such Fundamental Change Repurchase Date.




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




	 	 	 	 	 

	Dated:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 	 	 
	Signature(s)	 	 
	 
	 	 	 	 
	 	 	 
	Social Security or Other Taxpayer	 	 
	Identification Number	 	 
	 
	 	 	 	 
	Principal amount to be repaid (if less than all): $______,000
	 
	 	 	 	 
	NOTICE: The above signature(s) of the Holder(s) hereof must
correspond with the name as written upon the face of the
Note in every particular without alteration or
enlargement or any change whatever.	 	 
	 
	 	 	 	 
	 	 	 
	Signature Guarantee	 	 
	 
	 	 	 	 
	Signature(s) must be guaranteed by an
eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and
credit unions) with membership in an approved
signature guarantee medallion program pursuant
to Securities and Exchange Commission
Rule 17Ad-15 if Notes are to be delivered, other
than to and in the name of the registered holder.	 	 






A-9









 






ATTACHMENT 3




ALTRA HOLDINGS, INC.




[FORM OF OPTION REPURCHASE NOTICE]



          The undersigned registered owner of this Note hereby acknowledges receipt of a notice from
Altra Holdings, Inc. (the “Company”) as to the occurrence of an Option Repurchase Date and
specifying the Option Repurchase Date and requests and instructs the Company to pay to the
registered holder hereof in accordance with the applicable provisions of the Indenture referred to
in this Note (1) the entire principal amount of this Note, or the portion thereof (that is $2,000
principal amount or an integral multiple of $1,000 thereafter) below designated, and (2) if such
Option Repurchase Date does not fall during the period after a Regular Record Date and on or prior
to the corresponding Interest Payment Date, accrued and unpaid interest, if any, thereon to, but
excluding, such Option Repurchase Date.




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




	 	 	 	 	 

	Dated:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 	 	 
	Signature(s)	 	 
	 
	 	 	 	 
	 	 	 
	Social Security or Other Taxpayer	 	 
	Identification Number	 	 
	 
	 	 	 	 
	Principal amount to be repaid (if less than all): $______,000
	 
	 	 	 	 
	NOTICE: The above signature(s) of the Holder(s) hereof must
correspond with the name as written upon the face of the
Note in every particular without alteration or
enlargement or any change whatever.	 	 
	 
	 	 
	 	 	 
	Signature Guarantee	 	 
	 
	 	 	 	 
	Signature(s) must be guaranteed by an
eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and
credit unions) with membership in an approved
signature guarantee medallion program pursuant
to Securities and Exchange Commission
Rule 17Ad-15 if Notes are to be delivered, other
than to and in the name of the registered holder.	 	 






A-10









 






ATTACHMENT 4




[FORM OF ASSIGNMENT AND TRANSFER]




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



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



o To Altra Holdings, Inc. or a subsidiary thereof; or



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



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



o Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended, or
any other available exemption from the registration requirements of the Securities Act of 1933, as
amended.




	 	 	 	 	 

	Dated:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	 
	Signature(s)	 	 
	 
	 	 	 	 
	 	 	 
	Signature Guarantee	 	 
	 
	 	 	 	 
	Signature(s) must be guaranteed by an
eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and
credit unions) with membership in an approved
signature guarantee medallion program pursuant
to Securities and Exchange Commission
Rule 17Ad-15 if Notes are to be delivered, other
than to and in the name of the registered holder.	 	 





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







A-11









 








ATTACHMENT 5




[FORM OF NOTATION OF GUARANTEE]




          For value received, the undersigned each hereby unconditionally guarantees, as principal
obligor and not only as a surety, to the Holders of the 2.75% Convertible Senior Notes due 2031
(the “Notes”) of Altra Holdings, Inc., a Delaware corporation (the “Company”), the cash payments in
United States Dollars of any amounts due with respect to the Notes in the amounts and at the times
when due and interest on all overdue amounts, to the extent lawful, and the payment or performance
of all other obligations of the Company under the Indenture (as defined below) or the Notes, to the
Holders and the Trustee (as defined below), all in accordance with and subject to the terms and
limitations of the Notes, Article 17 of the Indenture and this Guarantee. This Guarantee will
become effective in accordance with Article 17 of the Indenture and its terms shall be evidenced
therein. The validity and enforceability of this Guarantee shall not be affected by the fact that
it is not affixed to any particular Note.




          Capitalized terms used but not defined herein shall have the meanings ascribed to them in the
Indenture, dated as of March 7, 2011, among the Company, the Guarantors named therein and The Bank
of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), as amended or supplemented (the
“Indenture”), governing the Company’s issuance of the Notes.




          The obligations of each of the undersigned to the Holders of Notes and to the Trustee pursuant
to this Guarantee and the Indenture are expressly set forth in Article 17 of the Indenture and
reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the
other provisions of the Indenture to which this Guarantee relates.




          THIS GUARANTEE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS
GUARANTEE, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT OTHERWISE
WITHOUT REGARD TO CONFLICT OF LAWS RULES THAT WOULD APPLY THE LAWS OF ANY OTHER JURISDICTION. Each
of the Guarantors hereto agrees to submit to the jurisdiction of the courts of the State of New
York sitting in the County of New York, or of the United States of America for the Southern
District of New York in any action or proceeding arising out of or relating to this Guarantee.




          This Guarantee is subject to release upon the terms set forth in the Indenture.




          The undersigned acknowledges that this Guarantee is subject to the TIA and each of the
undersigned agrees to discharge its duties under the TIA.







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     IN WITNESS WHEREOF, each Guarantor has caused its Guarantee to be duly executed.


Dated:                                        




	 	 	 	 	 
	 	[GUARANTOR],

as Guarantor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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SCHEDULE I




GUARANTORS




Altra Bauer LLC

Altra Industrial Motion, Inc.

American Enterprises MPT Corp.

American Enterprises MPT Holdings, LLC

Ameridrives International, LLC

Boston Gear LLC

Formsprag LLC

Intertia Dynamics LLC

Killian Manufacturing Corporation

Nuttall Gear LLC

Warner Electric International Holding, Inc.

Warner Electric LLC

Warner Electric Technology LLC

TB Wood’s Corporation

TB Wood’s Incorporated

TB Wood’s Enterprises, Inc.





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