Exhibit 4.1





Exhibit 4.1




TECHNITROL, INC.

as Issuer




and




Wells Fargo Bank, National Association

as Trustee




 






Indenture




Dated as of December 22, 2009




 






7.00% Convertible Senior Notes due 2014



 


 









 




TABLE
OF CONTENTS





	 	 	 	 	 
	 	 	 	Page	 
	 
	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Other Definitions
	 	 	7	 
	Section 1.03. Incorporation by Reference of Trust Indenture Act
	 	 	8	 
	Section 1.04. Rules of Construction
	 	 	8	 
	Section 1.05. Acts of Holders
	 	 	9	 
	 
	 	 	 	 
	ARTICLE 2 THE NOTES
	 	 	9	 
	 
	 	 	 	 
	Section 2.01. Form, Dating and Denominations; Legends
	 	 	9	 
	Section 2.02. Execution and Authentication
	 	 	10	 
	Section 2.03. Registrar, Paying Agent and Conversion Agent
	 	 	11	 
	Section 2.04. Paying Agent to Hold Money in Trust
	 	 	11	 
	Section 2.05. Noteholder Lists
	 	 	12	 
	Section 2.06. Transfer and Exchange
	 	 	12	 
	Section 2.07. Replacement Notes
	 	 	13	 
	Section 2.08. Outstanding Notes
	 	 	13	 
	Section 2.09. Treasury Notes
	 	 	14	 
	Section 2.10. Temporary Notes
	 	 	14	 
	Section 2.11. Cancellation
	 	 	14	 
	Section 2.12. CUSIP Numbers
	 	 	14	 
	Section 2.13. Book-Entry Provisions for Global Notes
	 	 	14	 
	Section 2.14. Purchases
	 	 	15	 
	 
	 	 	 	 
	ARTICLE 3 REPURCHASES
	 	 	15	 
	 
	 	 	 	 
	Section 3.01. Repurchase at the Option of the Holders Upon a Fundamental Change
	 	 	15	 
	Section 3.02. Effect of Fundamental Change Repurchase Notice
	 	 	17	 
	Section 3.03. Deposit of Repurchase Price
	 	 	18	 
	Section 3.04. Notes Repurchased in Part
	 	 	18	 
	Section 3.05. Covenant to Comply with Securities Laws upon Repurchase of Notes
	 	 	19	 
	Section 3.06. Repayment to the Company
	 	 	19	 
	 
	 	 	 	 
	ARTICLE 4 COVENANTS
	 	 	19	 
	 
	 	 	 	 
	Section 4.01. Payment of Notes
	 	 	19	 
	Section 4.02. Maintenance of Office or Agency
	 	 	20	 
	Section 4.03. Existence
	 	 	20	 
	Section 4.04. Reports
	 	 	20	 
	Section 4.05. Reports to Trustee
	 	 	21	 
	Section 4.06. Special Interest
	 	 	21	 
	Section 4.07. Stay, Extension and Usury Laws
	 	 	22	 






 


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TABLE
OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	 	Page	 
	 
	Section 4.08. 144A Information
	 	 	22	 
	 
	 	 	 	 
	ARTICLE 5 CONSOLIDATION, MERGER, SALE OR LEASE OF ASSETS
	 	 	22	 
	 
	 	 	 	 
	Section 5.01. Consolidation, Merger, Sale or Lease of Assets by the Company
	 	 	22	 
	 
	 	 	 	 
	ARTICLE 6 DEFAULT AND REMEDIES
	 	 	23	 
	 
	 	 	 	 
	Section 6.01. Events of Default
	 	 	23	 
	Section 6.02. Acceleration
	 	 	25	 
	Section 6.03. Other Remedies
	 	 	25	 
	Section 6.04. Waiver of Past Defaults
	 	 	25	 
	Section 6.05. Control by Majority
	 	 	26	 
	Section 6.06. Limitation on Suits
	 	 	26	 
	Section 6.07. Rights of Holders to Receive Payment
	 	 	26	 
	Section 6.08. Collection Suit by Trustee
	 	 	26	 
	Section 6.09. Trustee May File Proofs of Claim
	 	 	27	 
	Section 6.10. Priorities
	 	 	27	 
	Section 6.11. Restoration of Rights and Remedies
	 	 	28	 
	Section 6.12. Undertaking for Costs
	 	 	28	 
	Section 6.13. Rights and Remedies Cumulative
	 	 	28	 
	Section 6.14. Delay or Omission Not Waiver
	 	 	28	 
	Section 6.15. Failure to File
	 	 	28	 
	 
	 	 	 	 
	ARTICLE 7 THE TRUSTEE
	 	 	29	 
	 
	 	 	 	 
	Section 7.01. General
	 	 	29	 
	Section 7.02. Certain Rights of Trustee
	 	 	30	 
	Section 7.03. Individual Rights of Trustee
	 	 	31	 
	Section 7.04. Trustee’s Disclaimer
	 	 	31	 
	Section 7.05. Notice of Default
	 	 	32	 
	Section 7.06. Compensation and Indemnity
	 	 	32	 
	Section 7.07. Replacement of Trustee
	 	 	32	 
	Section 7.08. Successor Trustee by Merger
	 	 	33	 
	Section 7.09. Eligibility
	 	 	33	 
	Section 7.10. Money Held in Trust
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 8 DISCHARGE
	 	 	34	 
	 
	 	 	 	 
	Section 8.01. Satisfaction and Discharge of this Indenture
	 	 	34	 
	Section 8.02. Application of Trust Money
	 	 	35	 
	Section 8.03. Repayment to Company
	 	 	35	 
	Section 8.04. Reinstatement
	 	 	35	 






 


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TABLE
OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	 	Page	 
	 
	ARTICLE 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS
	 	 	36	 
	 
	 	 	 	 
	Section 9.01. Amendments Without Consent of Holders
	 	 	36	 
	Section 9.02. Amendments With Consent of Holders
	 	 	36	 
	Section 9.03. Effect of Consent
	 	 	37	 
	Section 9.04. Trustee’s Rights and Obligations
	 	 	38	 
	 
	 	 	 	 
	ARTICLE 10 CONVERSION
	 	 	38	 
	 
	 	 	 	 
	Section 10.01. Conversion Privilege
	 	 	38	 
	Section 10.02. Conversion Procedures; Conversion Settlement
	 	 	38	 
	Section 10.03. Fractional Shares
	 	 	40	 
	Section 10.04. Taxes on Conversion
	 	 	40	 
	Section 10.05. Company to Provide Common Stock
	 	 	40	 
	Section 10.06. Adjustment for Change in Capital Stock
	 	 	40	 
	Section 10.07. Adjustment for Rights, Options or Warrants Issue
	 	 	41	 
	Section 10.08. Adjustment for Other Distributions
	 	 	42	 
	Section 10.09. Adjustment for Cash Dividends
	 	 	43	 
	Section 10.10. Adjustment for Tender Offer
	 	 	44	 
	Section 10.11. Provisions Governing Adjustment to Conversion Rate
	 	 	45	 
	Section 10.12. Disposition Events
	 	 	46	 
	Section 10.13. Adjustment to Conversion Rate Upon a Make-Whole Change in Control;
Discretionary Adjustment
	 	 	47	 
	Section 10.14. When Adjustment May Be Deferred
	 	 	49	 
	Section 10.15. When No Adjustment Required
	 	 	49	 
	Section 10.16. Notice of Adjustment
	 	 	50	 
	Section 10.17. Notice of Certain Transactions
	 	 	50	 
	Section 10.18. Right of Holders to Convert
	 	 	50	 
	Section 10.19. Company Determination Final
	 	 	50	 
	Section 10.20. Trustee’s Adjustment Disclaimer
	 	 	51	 
	Section 10.21. Simultaneous Adjustments
	 	 	51	 
	Section 10.22. Successive Adjustments
	 	 	51	 
	Section 10.23. Rights Issued in Respect of Common Stock Issued Upon Conversion
	 	 	51	 
	 
	 	 	 	 
	ARTICLE 11 PAYMENT OF INTEREST
	 	 	52	 
	 
	 	 	 	 
	Section 11.01. Interest Payments
	 	 	52	 
	Section 11.02. Defaulted Interest
	 	 	52	 
	Section 11.03. Interest Rights Preserved
	 	 	53	 
	 
	 	 	 	 
	ARTICLE 12 MISCELLANEOUS
	 	 	53	 
	 
	 	 	 	 
	Section 12.01. Noteholder Actions
	 	 	53	 
	Section 12.02. Notices
	 	 	54	 






 


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TABLE
OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	 	Page	 
	 
	Section 12.03. Certificate and Opinion as to Conditions Precedent
	 	 	55	 
	Section 12.04. Statements Required in Certificate or Opinion
	 	 	55	 
	Section 12.05. Legal Holiday
	 	 	55	 
	Section 12.06. Rules by Trustee, Paying Agent, Conversion Agent and Registrar
	 	 	56	 
	Section 12.07. Governing Law
	 	 	56	 
	Section 12.08. No Adverse Interpretation of Other Agreements
	 	 	56	 
	Section 12.09. Successors
	 	 	56	 
	Section 12.10. Counterparts
	 	 	56	 
	Section 12.11. Severability
	 	 	56	 
	Section 12.12. Table of Contents and Headings
	 	 	56	 
	Section 12.13. No Liability of Directors, Officers, Employees, Incorporators,
Members and Stockholders
	 	 	56	 






EXHIBITS




EXHIBIT A Form of Note


EXHIBIT B DTC Legend




SCHEDULE A Table for Additional Shares



 


- iv -









 





INDENTURE dated as of December 22, 2009 between Technitrol, Inc., a Pennsylvania corporation
(the “Company”), and Wells Fargo Bank, National Association, as Trustee.



RECITALS




The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance of $50,000,000 of the Company’s 7.00% Convertible Senior Notes due 2014 (the “Notes”).
All things necessary to make this Indenture a valid and binding agreement of the Company, in
accordance with its terms, have been done, and the Company has done all things necessary to make
the Notes, when executed by the Company and authenticated and delivered by the Trustee and duly
issued by the Company, the valid and binding obligations of the Company as hereinafter provided.



THIS INDENTURE WITNESSETH




For and in consideration of the premises and the purchase of the Notes by the Holders thereof,
the parties hereto covenant and agree, for the equal and proportionate benefit of all Holders, as
follows:



ARTICLE 1




DEFINITIONS AND INCORPORATION BY REFERENCE





Section 1.01. Definitions.



“Additional Interest” means, collectively, Reporting Payments and Special Interest, in each
case, if any.



“Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with, such Person. For
purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”) with respect to any Person, means
the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of Voting Securities, by
contract or otherwise.




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




“Agent Member” means a member of, or a participant in, the Depositary.




“Applicable Conversion Rate” means the Conversion Rate on any day.



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



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


 


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“Board of Directors” means the board of directors or comparable governing body of the Company,
or any committee thereof duly authorized to act on its behalf.



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



“Capital Stock” means, with respect to any Person, any and all shares of stock of a
corporation, partnership interests or other equivalent interests (however designated, whether
voting or non-voting) in such Person’s equity, entitling the holder to receive a share of the
profits and losses, and a distribution of assets, after liabilities, of such Person.



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




“Certificated Note” means a Note in registered individual form without interest coupons.



“Change in Control” shall be deemed to have occurred at such time as any of the following
events shall occur:



(i) a person or group, other than the Company, its Subsidiaries or any employee benefit plan
of the Company or its Subsidiaries, files a Schedule TO or any schedule, form or report under the
Exchange Act disclosing that such person has become the direct or indirect ultimate “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 Company’s common equity; or



(ii) consummation of (a) any recapitalization, reclassification or change of the Voting
Securities of the Company (other than changes resulting from a subdivision or combination or a
change in par value) as a result of which the Voting Securities are converted into, or exchanged
for, stock, other securities, other property or assets or (b) any statutory share exchange,
consolidation or merger involving the Company pursuant to which the Voting Securities of the
Company are converted into Cash, securities or other property, or any sale, lease or other transfer
in one transaction or a series of related 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 or more of the Company’s Subsidiaries; provided, however, that a transaction where the holders
of more than 50% of all classes of the Voting Securities of the Company immediately before such
transaction own, directly or indirectly, more than 50% of all classes of the Voting Securities of
the continuing or surviving entity or transferee immediately after such transaction, shall not be a
Change in Control.



(iii) the holders of Common Stock approve any plan or proposal for the liquidation or
dissolution of the Company.


 


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For purposes of defining a Change in Control:



(A) the term “person” and the term “group” have the meanings given by Section 13(d) and 14(d)
of the Exchange Act or any successor provisions;



(B) the term “group” includes any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act or any
successor provision; and



(C) the term “beneficial owner” is determined in accordance with Rules 13d-3 and 13d-5 under
the Exchange Act or any successor provisions, except that a person will be deemed to have
beneficial ownership of all shares that person has the right to acquire irrespective of whether
that right is exercisable immediately or only after the passage of time.



Notwithstanding the foregoing, a Change in Control as described in clause (i) or (ii) above
shall not be deemed to have occurred if 90% or more of the consideration received or to be received
by holders of the Common Stock (excluding Cash payments for fractional shares) in connection with
the relevant transaction or transactions consists of shares of common stock traded on a U.S.
national securities exchange or which will be so traded when issued or exchanged in connection with
the transaction that would otherwise be a Change in Control (these securities being referred to as
“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.




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



“Closing Price” of Common Stock or any other security on any date means the closing sale price
per share (or, if no closing sale price is reported, the average of the last bid and last ask
prices or, if more than one in either case, the average of the average bid and the average ask
prices) on that date as reported in composite transactions for the principal U.S. securities
exchange on which Common Stock or such other security is traded. If Common Stock or such other
security is not listed for trading on a U.S. national or regional securities exchange on the
relevant date, the Closing Price shall be the last quoted bid price for Common Stock or such other
security in the over-the-counter market on the relevant date as reported by Pink OTC Markets Inc.
or a similar organization. If Common Stock or such other security is not so quoted, the Closing
Price shall be the average of the mid-point of the last bid and ask prices for Common Stock or such
other security on the relevant date from each of at least three nationally recognized independent
investment banking firms selected by the Company for this purpose. The Closing Price shall be
determined without reference to extended or after hours trading.



“Common Stock” means Common Stock of the Company, $0.125 par value, as it exists on the date
of this Indenture and any shares of any class or classes of Capital Stock of the Company resulting
from any reclassification or reclassifications thereof and which have no preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Company and which are not subject to redemption by the Company;
provided that if at any time there shall be more than one such



 


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resulting class, the shares of each such class then so issuable on conversion of Notes shall
be substantially in the proportion which the total number of shares of such class resulting from
all such reclassifications bears to the total number of shares of all such classes resulting from
all such reclassifications.



“Company” means the party named as such in the first paragraph of this Indenture or any
successor obligor under this Indenture and the Notes pursuant to Section 5.01.



“Conversion Price” per share of Common Stock as of any day means $1,000 divided by the
Conversion Rate on such day.



“Corporate Trust Office” means the office of the Trustee at which the corporate trust business
of the Trustee is principally administered, which at the date of this Indenture is located at 230
W. Monroe Street, Suite 2900, Chicago, Illinois 60606. Attention Corporate Trust Services, except
that, with respect to presentation of the Notes for payment or registration of transfers or
exchanges and the location of the Note Registrar, such term means the office or agency of the
Trustee in Minneapolis, Minnesota, which at the date of original execution of this Indenture is
located at 608 Second Avenue South, N9303-121, Minneapolis, Minnesota 55479, Attention: Corporate
Trust Operations.



“Debt” means, with respect to any Person, without duplication, (a) all obligations of such
Person for borrowed money (other than non-recourse obligations); and (b) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments.



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




“Depositary” means DTC or the nominee thereof, or any successor thereto.




“DTC” means The Depository Trust Company, a New York corporation, and its successors.




“DTC Legend” means the legend set forth in Exhibit B.



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



“Ex-Date” means, with respect to any issuances, dividends or distributions on the Common
Stock, 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 the Common Stock
on such exchange or market (in the form of due bills or otherwise) as determined by such exchange
or market.



“Fundamental Change” means a Change in Control or a Termination of Trading.


 


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“GAAP” means generally accepted accounting principles in the United States of America as in
effect from time to time.




“Global Note” means a Note in registered global form without interest coupons.




“Holder” or “Noteholder” means the registered holder of any Note.




“Indenture” means this indenture, as amended or supplemented from time to time.



“Interest Payment Date” means each June 15 and December 15 of each year, commencing June 15,
2010.




“Maturity Date” means December 15, 2014.




“Notes” has the meaning assigned to such term in the Recitals.



“Officer” means the chairman of the Board of Directors, the president or chief executive
officer, any vice president, the chief financial officer, the treasurer or any assistant treasurer,
or the secretary or any assistant secretary, of the Company.



“Officers’ Certificate” means a certificate with respect to the Company that meets the
requirements of Section 12.04 and is signed by each of (a) the chairman of the Board of Directors,
the president or chief executive officer or a vice president of the Company and (b) the chief
financial officer, the treasurer or any assistant treasurer or the secretary or any assistant
secretary of the Company.




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



“Opinion of Counsel” means a written opinion signed by legal counsel, who may be an employee
of or counsel to the Company, reasonably satisfactory to the Trustee.



“Paying Agent” refers to a Person engaged to perform the obligations of the Trustee in respect
of payments made or funds held hereunder in respect of the Notes.



“Person” means an individual, a corporation, a partnership, a limited liability company, an
association, a trust or any other entity, including a government or political subdivision or an
agency or instrumentality thereof.



“principal” of any Debt (including the Notes) means the principal amount of such Debt (or if
such Debt was issued with original issue discount, the face amount of such Debt less the remaining
unamortized portion of the original issue discount of such Debt), together with, unless the context
otherwise indicates, any premium then payable on such Debt.



“Private Placement Memorandum” means the private placement memorandum dated December 15, 2009
relating to the offering and sale of the Notes.


 


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



“Regular Record Date” for the interest payable on any Interest Payment Date means the June 1
or December 1 next preceding such Interest Payment Date.



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



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




“Scheduled Trading Day” means a day that is scheduled to be a Trading Day.



“Significant Subsidiary” means any subsidiary of the Company that is a significant subsidiary
at any determination date pursuant to Regulation S-X, Rule 1-02(w)(1) or (2).



“Subsidiary” means with respect to any Person, any corporation, association or other business
entity of which more than 50% of the outstanding Voting Securities is owned, directly or
indirectly, by, or, in the case of a partnership, the sole general partner or the managing partner
or the only general partners of which are, such Person and one or more Subsidiaries of such Person
(or a combination thereof).



“Termination of Trading” means the Common Stock, or other Capital Stock into which the Notes
are then convertible, ceases to be listed on any U.S. national securities exchange.



“Trading Day” means, with respect to Common Stock or any other security, a day during which
(a) trading in Common Stock or such other security generally occurs on the New York Stock Exchange,
or if the Common Stock or such other security is not then listed on the New York Stock Exchange, on
the principal other United States national or regional securities exchange on which the Common
Stock or such other security is then listed or, if the Common Stock is not then listed on a United
States national or regional securities exchange, on the principal other market on which the Common
Stock is then traded and (b) a Closing Price for the Common Stock or such other security (other
than a Closing Price referred to in the next to last sentence of such definition) is available for
such day; provided that if Common Stock or such other security is not so listed or traded, Trading
Day will mean any Business Day.



“Trustee” means the party named as such in the first paragraph of this Indenture or any
successor trustee under this Indenture pursuant to Article 7.


 


-6-









 






“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.



“Voting Securities” means, with respect to any Person, securities of any class or kind
ordinarily having the power to vote for the election of directors, managers or other voting members
of the governing body of such Person.




Section 1.02. Other Definitions.



	 	 	 
	Term	 	Defined in Section
	“act”

	 	 1.05
	“Bankruptcy Default”

	 	 6.01(j)
	“Company Order”

	 	 2.02
	“Conversion Agent”

	 	 2.03
	“Conversion Date”

	 	 10.02(a)
	“Conversion Rate”

	 	 10.01
	“Defaulted Interest”

	 	 11.02
	“Disposition Event”

	 	 10.12
	“Distributed Assets”

	 	 10.08(a)
	“Effective Date”

	 	 10.13(b)
	“Event of Default”

	 	 6.01
	“Expiration Date”

	 	 10.10
	“Filing Payments”

	 	 4.06(a)
	“Fundamental Change Repurchase Notice”

	 	 3.01(c)
	“Incremental Reporting Payments”

	 	 6.15
	“Incremental Extension Right”

	 	 6.15
	“Initial Reporting Payments”

	 	 6.15
	“Initial Dividend Threshold”

	 	 10.09
	“Initial Extension Right”

	 	 6.15
	“Legal Holiday”

	 	 12.05
	“Make-Whole Change in Control”

	 	 10.13(a)
	“Make-Whole Shares”

	 	 10.13(a)
	“Paying Agent”

	 	 2.03
	“Primary Registrar”

	 	 2.03
	“Purchased Shares”

	 	 10.10
	“Reference Property”

	 	 10.12
	“Register”

	 	 2.03
	“Registrar”

	 	 2.03
	“Reporting Payments”

	 	 6.15
	“Restricted Transfer Payments”

	 	 4.06(b)
	“Repurchase Date”

	 	 3.01(a)
	“Repurchase Price”

	 	 3.01(a)
	“Rights”

	 	 10.23
	“Shareholders Rights Plan”

	 	 10.23
	“Special Interest”

	 	 4.06(b)
	“Special Interest Notice”

	 	 4.06(c)






 


-7-









 





	 	 	 
	Term	 	Defined in Section
	“Special Record Date”

	 	 11.02(a)
	“Spin-Off”

	 	 10.08(b)
	“Stock Price”

	 	 10.13(b)
	“Trigger Event”

	 	 10.11






Section 1.03. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture
refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and
made a part of this Indenture. The following Trust Indenture Act terms used in this Indenture have
the following meanings:




“Commission” means the Securities and Exchange Commission.




“indenture securities” means the Notes.




“indenture security holder” means a Noteholder.




“indenture to be qualified” means this Indenture.




“indenture trustee” or “institutional trustee” means the Trustee.




“obligor” on the indenture securities means the Company.



All other Trust Indenture Act terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or defined by a
Commission rule have the meanings assigned to them by such definitions.



Section 1.04. Rules of Construction. Unless the context otherwise requires or except as
otherwise expressly provided,




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



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



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



(d) all references to Sections or Articles or Exhibits refer to Sections or Articles or
Exhibits of or to this Indenture unless otherwise indicated;



(e) references to agreements or instruments, or to statutes or regulations, are to such
agreements or instruments, or statutes or regulations, as amended from time to time (or to
successor statutes and regulations);


 


-8-









 





(f) if a transaction meets the criteria of more than one category of permitted transactions or
listed exceptions the Company may classify such transaction as it, in its sole discretion,
determines;




(g) “or” is not exclusive;




(h) “including” means including, without limitation; and




(i) words in the singular include the plural, and words in the plural include the singular.



Section 1.05. Acts of Holders. Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments (which may take the form of an electronic
writing or messaging or otherwise be in accordance with the Applicable Procedures or customary
procedures of the Trustee) of substantially similar tenor signed by such Holders in person or by
agent duly appointed in writing (which may be in electronic form); and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “act” of Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent (either of which may be
in electronic form) shall be sufficient for any purpose of this Indenture and conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section. The Trustee may
make reasonable rules for action by or at a meeting of Holders, which will be binding on all the
Holders.



ARTICLE 2




THE NOTES





Section 2.01. Form, Dating and Denominations; Legends.



(a) The Notes and the Trustee’s certificate of authentication will be substantially in the
form attached as Exhibit A. The terms and provisions contained in the form of the Note annexed as
Exhibit A constitute and are hereby expressly made a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, rules of or agreements with national securities
exchanges to which the Company is subject, or usage. Each Note will be dated the date of its
authentication. The Notes will be issuable only in denominations of $1,000 in principal amount and
any integral multiple thereof.



(b) Global Notes in General. Each Global Note shall represent such of the outstanding Notes
as shall be specified therein and each shall provide that it shall represent the aggregate amount
of outstanding Notes from time to time endorsed thereon and that the aggregate amount of
outstanding Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, purchases, conversions or issuances of such



 


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Notes. Any adjustment of the aggregate principal amount of a 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 in accordance with instructions given by the Holder thereof as required by
Section 2.06 and shall be made on the records of the Trustee and the Depositary.



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



(c) Book-Entry Provisions. The Company shall execute and the Trustee shall, in accordance
with this Section 2.01(c), authenticate and deliver initially one or more Global Notes that (i)
shall be registered in the name of the Depositary (or its nominee), (ii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary’s instructions and (iii) shall bear a
legend substantially to the effect set forth in Exhibit B.



Section 2.02. Execution and Authentication. An Officer shall sign the Notes for the Company
by manual or facsimile signature. Typographic errors or defects in any such facsimile signature
shall not affect the validity or enforceability of any Note which has been authenticated and
delivered by the Trustee.



If an Officer whose signature is on a Note no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.



A Note shall not be valid until an authorized signatory of the Trustee signs manually the
certificate of authentication on the Note. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.



The Trustee shall authenticate and make available for delivery Notes for original issue in the
aggregate principal amount of $50,000,000 upon receipt of a written order or orders of the Company
signed by an Officer of the Company (a “Company Order”). The Company Order shall specify the
amount of Notes to be authenticated, shall provide that all such Notes will be represented by a
Global Note and the date on which each original issue of Notes is to be authenticated. The initial
aggregate principal amount of Notes outstanding at any time may not exceed $50,000,000 except as
provided in Section 2.07.



The Trustee shall act as the initial authenticating agent. Thereafter, the Trustee may
appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating
agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An



 


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authenticating agent shall have the same rights as an Agent to deal with the Company or an
Affiliate of the Company.



The Notes shall be issuable only in registered form without coupons and only in denominations
of $1,000 principal amount and any integral multiple thereof.



Section 2.03. Registrar, Paying Agent and Conversion Agent. The Company shall maintain one
or more offices or agencies where Notes may be presented for registration of transfer or for
exchange (each, a “Registrar”), one or more offices or agencies where Notes may be presented for
payment (each, a “Paying Agent”), one or more offices or agencies where Notes may be presented for
conversion (each, a “Conversion Agent”) and one or more offices or agencies where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be served. The
Company will at all times maintain a Paying Agent, Conversion Agent, Registrar and an office or
agency where notices and demands to or upon the Company in respect of the Notes and this Indenture
may be served in the United States. One of the Registrars (the “Primary Registrar”) shall keep a
register of the Notes and of their transfer and exchange (the “Register”).



The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture. Such agreement shall implement the provisions of this Indenture that relate to
such Agent. The Company shall notify the Trustee of the name and address of any Agent not a party
to this Indenture. If the Company fails to maintain a Registrar, Paying Agent, Conversion Agent or
agent for service of notices and demands in any place required by this Indenture, or fails to give
the foregoing notice, the Trustee shall act as such. The Company or any Affiliate of the Company
may act as Paying Agent (except for the purposes of Article 8).



The Company hereby initially designates the Trustee as initial Paying Agent, Registrar, and
Conversion Agent, and each of the Corporate Trust Office of the Trustee and the office or agency of
the Trustee in the United States (located at 608 Second Avenue South, N9303-121, Minneapolis,
Minnesota 55479, Attention: Corporate Trust Operations, Tel. 1-800-344-5128 as an office or agency
of the Company for each of the aforesaid purposes.



Section 2.04. Paying Agent to Hold Money in Trust. On or before each date on which the
principal amount of or interest (including Additional Interest), if any, on any Notes is due and
payable, the Company shall deposit with a Paying Agent a sum sufficient to pay such principal
amount or interest (including Additional Interest), if any, so becoming due. A Paying Agent shall
hold in trust for the benefit of Noteholders or the Trustee all money held by the Paying Agent for
the payment of principal amount of or interest (including Additional Interest), if any, on the
Notes, and shall notify the Trustee of any default by the Company (or any other obligor on the
Notes) in making any such payment. If the Company or an Affiliate of the Company acts as Paying
Agent, it shall, on or before each date on which a payment of the principal amount of or interest
(including any Additional Interest) on any Notes is due and payable, segregate the money and hold
it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee, and the Trustee may at any time during the continuance of any default by
the Company hereunder, upon written request to a Paying Agent,



 


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require such Paying Agent to pay forthwith to the Trustee all sums so held in trust by such
Paying Agent. Upon doing so, the Paying Agent (other than the Company) shall have no further
liability for the money.



Section 2.05. Noteholder Lists. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of
Noteholders. If the Trustee is not the Primary Registrar, the Company shall furnish to the Trustee
on or before ten Business Days before each Interest Payment Date, and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Noteholders.



Section 2.06. Transfer and Exchange. Subject to compliance with any applicable additional
requirements contained in Section 2.13, when a Note is presented to a Registrar with a request to
register a transfer thereof or to exchange such Note for an equal principal amount of Notes of
other authorized denominations, the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met; provided that every Note presented or
surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by an
assignment form in the form included in Exhibit A, and in form satisfactory to the Registrar duly
executed by the Holder thereof or its attorney duly authorized in writing. To permit registration
of transfers and exchanges, upon surrender of any Note for registration of transfer or exchange at
an office or agency maintained pursuant to Section 2.03, the Company shall execute and the Trustee
shall authenticate Notes of a like aggregate principal amount at the Registrar’s request. Any
exchange or transfer shall be without service charge, except that the Company or the Registrar may
require payment of a sum sufficient to cover any tax, assessment or other governmental charge that
may be imposed in relation thereto; provided that this sentence shall not apply to any exchange
pursuant to Section 2.10, Section 3.04 or Section 9.03(b) not involving any transfer.



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



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



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 Note (including any transfers between or among Agent Members
or other 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.


 


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



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



Upon the issuance of any new Notes under this Section 2.07, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the reasonable fees and expenses of
the Trustee or the Registrar) in connection therewith.



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



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



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



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



If a Paying Agent holds at 12:00 p.m., New York City time, on the Maturity Date or on a
Repurchase Date, Cash sufficient to pay the principal amount of the Notes payable on that date,
then on and after such Maturity Date or such Repurchase Date as the case may be, such Notes shall
cease to be outstanding and the principal amount thereof shall cease to bear interest.



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


 


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



Section 2.10. Temporary Notes. Until definitive Notes are ready for delivery, the Company
may prepare and execute, and, upon receipt of a Company Order, the Trustee shall authenticate and
deliver, temporary Notes. Temporary Notes shall be substantially in the form of definitive Notes
but may have variations that the Company with the consent of the Trustee considers appropriate for
temporary Notes. Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate and deliver definitive Notes in exchange for temporary Notes.



Section 2.11. Cancellation. The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar, the Paying Agent and the Conversion Agent shall forward to the
Trustee or its agent any Notes surrendered to them for transfer, exchange, payment or conversion.
The Trustee and no one else shall cancel, in accordance with its standard procedures, all Notes
surrendered for transfer, exchange, payment, conversion or cancellation and upon written request of
the Company shall deliver evidence of the canceled Notes to the Company.



Section 2.12. CUSIP Numbers. The Company in issuing the Notes may use one or more “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of
purchase as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of a purchase and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such purchase shall not be affected by any
defect in or omission of such numbers. The Company will promptly notify the Trustee of any change
in the “CUSIP” numbers.



Section 2.13. Book-Entry Provisions for Global Notes. (a) Transfers of Global Notes shall be
limited to transfers in whole, but not in part, to the Depositary, its successors or their
respective nominees. In addition, Certificated Notes shall be transferred to all beneficial
owners, as identified by the Depositary, in exchange for their beneficial interests in Global Notes
only if (i) the Depositary notifies the Company that the Depositary is unwilling or unable to
continue as depositary for any Global Note (or the Depositary ceases to be a “clearing agency”
registered under Section 17A of the Exchange Act) and a successor Depositary is not appointed by
the Company within 90 days of such notice or cessation or (ii) an Event of Default has occurred and




 


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is continuing, and a beneficial owner of the Notes has requested
that its Notes be issued as Certificated Notes.



(b) In connection with the transfer of a Global Note in its entirety to beneficial owners
pursuant to Section 2.13(a), such Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall upon written instructions from
the Company authenticate and deliver, to each beneficial owner identified by the Depositary in
exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of
Certificated Notes of authorized denominations.



(c) The Holder of any Global Note may grant proxies and otherwise authorize any Person to take
any action that a Holder is entitled to take under this Indenture or the Notes.



Section 2.14. Purchases. The Company may also from time to time purchase the Notes in open
market purchases or negotiated transactions without prior notice to Noteholders. Any Notes
purchased by the Company shall be deemed to be no longer outstanding under this Indenture.



ARTICLE 3




REPURCHASES





Section 3.01. Repurchase at the Option of the Holders Upon a Fundamental Change.



(a) Upon the occurrence of a Fundamental Change, each Holder shall have the right, at such
Holder’s option, subject to the terms and conditions of Article 3 of this Indenture, to require the
Company to repurchase for Cash all or any portion of such Holder’s Notes in integral multiples of
$1,000 principal amount at a price (the “Repurchase Price”) equal to 100% of the principal amount
of the Notes to be repurchased, plus accrued and unpaid interest (including Additional Interest),
if any, to, but excluding, the Repurchase Date; provided that if the Repurchase Date is after a
Regular Record Date and on or before the Interest Payment Date to which it relates, the interest
accrued to the Interest Payment Date will be paid to Holders of the Notes as of the preceding
Regular Record Date, and the Repurchase Price shall be equal to the principal amount of Notes
subject to repurchase. Upon a valid exercise of such an option, the Company shall be required to
repurchase the Notes on a date selected by the Company (the “Repurchase Date”), which shall be a
Business Day no earlier than 20 Business Days or later than 35 Business Days after the date on
which the Company sends the notice contemplated by Section 3.01(b), subject to satisfaction by or
on behalf of the Holder of the requirements set forth in Section 3.01(c).



(b) On or before the 20th day after the occurrence of a Fundamental Change, the
Company shall deliver a written notice of the occurrence of Fundamental Change to the Trustee and
to each Holder at their addresses shown in the register of the Registrar (and to beneficial owners
as required by applicable law). Simultaneously with delivering the notice to the Trustee and each
Holder, the Company will publish in a newspaper of general circulation in the City of New York or
on the Company’s website or through such other public medium notice of the


 


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Fundamental Change. The
Company’s notice to the Holders shall include a form of Fundamental Change Repurchase Notice to be
completed by the Holder and shall state:



(i) the events causing the Fundamental Change;



(ii) the effective date of such Fundamental Change;



(iii) the last date on which the repurchase right described in this Article 3 may be
exercised;



(iv) the Repurchase Price;



(v) the Repurchase Date;



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



(vii) the then current Applicable Conversion Rate and any adjustments thereto;



(viii) that Notes with respect to which a Fundamental Change Repurchase Notice is given by the
Holder may be converted pursuant to Article 10 hereof only if the Repurchase Notice has been
withdrawn in accordance with the terms of this Indenture; and



(ix) the procedures a Holder must follow to exercise rights under this Section 3.01.



(c) A Holder may exercise its rights specified in this Section 3.01 by delivery of a written
notice in the form set forth on the reverse of the Note as Attachment 2 (a “Fundamental Change
Repurchase Notice”), to the Paying Agent at any time before the Close of Business on the Business
Day immediately preceding the Repurchase Date. The Fundamental Change Repurchase Notice shall
state:



(i) if Certificated Notes have been issued, the certificate number of the Notes (or if the
Holder’s Notes are Global Notes, such Holder’s notice must comply with the Applicable Procedures);



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



(iii) that such Notes shall be repurchased by the Company pursuant to the terms and conditions
specified in this Article 3.



Following delivery of a Fundamental Change Repurchase Notice with respect to any Note, the
receipt of such Note by the Paying Agent (together with all necessary endorsements and compliance
by the Holder with the Applicable Procedures) at the offices of the Paying Agent shall be a
condition to the receipt by the Holder of the Repurchase Price therefor; provided, however, that
such Repurchase Price shall be so paid pursuant to this Section 3.01 only if the


 


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Note so delivered
to the Paying Agent shall conform in all respects to the description thereof set forth in the
related Fundamental Change Repurchase Notice.



The Company shall repurchase from the Holder thereof, pursuant to this Section 3.01, a portion
of a Note if the principal amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the
repurchase of such portion of such Note.



Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.01
shall be consummated by payment of the Repurchase Price in Cash on the later of the Repurchase Date
or the time of book-entry transfer (in the case of Global Notes) or the delivery (in the case of
Certificated Notes) of the Notes in accordance with this Section 3.01.



Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this Section 3.01(c) shall have the right to
withdraw such Fundamental Change Repurchase Notice at any time before the Close of Business on the
Business Day immediately preceding the Repurchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.02(b).



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



No Notes may be repurchased by the Company at the option of Holders upon a Fundamental Change
if the principal amount of the Notes has been accelerated (other than as a result of a default in
the payment of the Repurchase Price with respect to the Notes), and such acceleration has not been
rescinded, on or before the date on which such repurchase is to be consummated. The Paying Agent
will promptly return to the respective Holders thereof any Notes (x) with respect to which a
Fundamental Change Repurchase Notice has been withdrawn in compliance with this Indenture, or (y)
held by it during the continuance of acceleration described in the immediately preceding sentence
in which case, upon such return, the Fundamental Change Repurchase Notice with respect thereto
shall be deemed to have been withdrawn.



Section 3.02. Effect of Fundamental Change Repurchase Notice. (a) Upon receipt by the
Paying Agent of the Fundamental Change Repurchase Notice specified in Section 3.01(c), the Holder
of the Note in respect of which such Fundamental Change Repurchase Notice was given shall (unless
such Fundamental Change Repurchase Notice is withdrawn as specified in this Section 3.02)
thereafter be entitled to receive solely the Repurchase Price with respect to such Note. Such
Repurchase Price shall be paid to such Holder, subject to receipt of funds by the Paying Agent, by
12:00 p.m. New York City time on the later of the Repurchase Date or the time of book-entry
transfer (in the case of Global Notes) or the delivery (in the case of Certificated Notes) of the
Notes. Notes in respect of which a Fundamental Change Repurchase Notice has been given by the
Holder thereof may not be converted pursuant to Article 10 hereof on or after the date of the
delivery of such Fundamental Change Repurchase Notice unless such


 


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Fundamental Change Repurchase
Notice has first been validly withdrawn as specified in this Section 3.02.



(b) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent at any time before the Close of Business on
the Business Day immediately preceding the Repurchase Date. Such notice of withdrawal shall state:



(i) the principal amount being withdrawn, which must be $1,000 principal amount or an integral
multiple thereof;



(ii) if Certificated Notes are to be withdrawn, the certificate numbers of the Notes being
withdrawn (or, if Global Notes or a portion thereof are to be withdrawn, such Holder’s notice must
comply with the Applicable Procedures); and



(iii) the principal amount, if any, of the Notes that remain subject to a Fundamental Change
Repurchase Notice.



Section 3.03. Deposit of Repurchase Price. No later than 12:00 p.m. New York City time on
the Repurchase Date, the Company shall deposit with the Paying Agent (or, if the Company or a
Subsidiary of the Company or an Affiliate of either of them is acting as the Paying Agent, shall
segregate and hold in trust as provided in Section 2.04) an amount of money (in immediately
available funds if deposited on such Trading Day) sufficient to pay the aggregate Repurchase Price
of all the Notes or portions thereof which are to be repurchased as of the Repurchase Date.



If the Paying Agent holds money sufficient to pay the Repurchase Price with respect to the
Notes to be repurchased on the Repurchase Date in accordance with the terms of this Indenture,
then, immediately on and after the Repurchase Date such Notes shall cease to be outstanding,
interest (including any Additional Interest) on such Notes shall cease to accrue, whether or not
the Notes are delivered to the Paying Agent, and all other rights of the Holders of such Notes
shall terminate, other than the right to receive the Repurchase Price upon delivery of such Notes.



Section 3.04. Notes Repurchased in Part. Any Note which is to be repurchased only in part
shall be surrendered at the office of the Paying Agent (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly
authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Note, without service charge, a new Note or Note, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to, and in exchange
for, the portion of the principal amount of the Note so surrendered that is not repurchased.


 


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Section 3.05. Covenant to Comply with Securities Laws upon Repurchase of Notes. In
connection with any repurchase upon the occurrence of a Change in Control, to the extent required
by applicable law, the Company shall:



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



(b) file a Schedule TO or any successor or similar schedule, if required, under the Exchange
Act; and



(c) otherwise comply with all other federal and state securities laws as necessary to effect a
repurchase of Notes by the Company at the option of Holder.



Section 3.06. Repayment to the Company. Subject to applicable abandoned property law, the
Trustee and the Paying Agent shall return to the Company any Cash that remains unclaimed as
provided in Section 11 of the Notes (subject to the provisions of Section 7.10), held by them for
the payment of the Repurchase Price.



ARTICLE 4




COVENANTS




Section 4.01. Payment of Notes. (a) The Company shall pay the principal of and interest
(including any Additional Interest) on the Notes on the dates and in the manner provided in the
Notes and this Indenture. Not later than 12:00 p.m. New York City time on the due date of any
principal of or interest (including any Additional Interest) on any Notes, or any Repurchase Date,
the Company will deposit with the Trustee (or Paying Agent) money in immediately available funds
sufficient to pay the amounts then due; provided that if the Company or any Affiliate of the
Company is acting as Paying Agent, it will, on or before each due date, segregate and hold in a
separate trust fund for the benefit of the Holders a sum of money sufficient to pay such amounts
until paid to such Holders or otherwise disposed of as provided in this Indenture. In each case
the Company will promptly notify the Trustee of its compliance with this paragraph.



(a) An installment of principal or interest (including any Additional Interest) will be
considered paid on the date due if the Trustee (or Paying Agent, other than the Company or any
Affiliate of the Company) holds on that date money designated for and sufficient to pay the
installment. If the Company or any Affiliate of the Company acts as Paying Agent, an installment
of principal or interest (including any Additional Interest) will be considered paid on the due
date only if paid to the Holders.



(b) The Company shall pay interest on overdue principal, and, to the extent lawful, overdue
installments of interest at the rate per annum specified in the Notes.



(c) Payments in respect of the Notes represented by the Global Notes are to be made by wire
transfer of same-day funds to the Depositary for the purpose of permitting such party to credit the
payments received by it in respect of such Global Note to the accounts of the beneficial


 


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owners
thereof. With respect to Certificated Notes, (i) to holders holding Certificated Notes having an
aggregate principal amount of $1,000,000 or less, the Company will make all payments by check drawn
on a bank in the United States mailed to the payee at its address set forth on the Registrar’s
books and (ii) to Holders holding Certificated Notes having an aggregate principal amount of more
than $1,000,000, the Company will make all payments in same-day funds by transfer to an account
maintained by the payee located inside the United States, if the Trustee shall have received proper
wire transfer instructions from such payee not later than the related Regular Record Date or, if no
such instructions have been received, by check drawn on a bank in the United States mailed to the
payee at its address set forth on the Registrar’s books.



Section 4.02. Maintenance of Office or Agency. The Company shall maintain in the United
States, an office or agency where Notes may be surrendered for registration of transfer or exchange
or for presentation for payment and where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. The Company hereby initially designates the Corporate
Trust Office of the Trustee as such office of the Company. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of such office or agency.
If at any time the Company fails to maintain any such required office or agency or fails to furnish
the Trustee with the address thereof, such presentations, surrenders, notices and demands may be
made or served to the Trustee.



The Company may also from time to time designate one or more other offices or agencies where
the Notes may be surrendered or presented for any of such purposes and may from time to time
rescind or change 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.



Section 4.03. Existence. The Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and the existence, rights and material
franchises of the Company; provided that the Company is not required to preserve any such right or
franchise if the preservation thereof is no longer desirable in the conduct of the business of the
Company; provided further that this Section does not prohibit any transaction otherwise permitted
by Section 5.01.



Section 4.04. Reports. The Company shall deliver to the Trustee, within 15 days after the
Company is required to file the same with the Commission (giving effect to any grace period
provided by Rule 12b-25 under the Exchange Act), copies of the Company’s annual reports and of the
information, documents and other reports (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) that the Company is required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; provided that any such
information, documents or reports filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval (or EDGAR) system shall be deemed to be filed with the Trustee.



Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any


 


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information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers’ Certificates).



Section 4.05. Reports to Trustee. The Company shall deliver to the Trustee:



(a) within 120 days after the end of each fiscal year of the Company a certificate from the
principal executive, financial or accounting officer of the Company stating that the officer has
conducted or supervised a review of the activities of the Company and its performance under this
Indenture and that, based upon such review, to the knowledge of the signer thereof, no Default
exists hereunder or, if there has been a Default, specifying the Default and its nature and status.



(b) promptly and in any event within 30 days after any executive officer of the Company
becomes aware of the occurrence of a Default, an Officers’ Certificate setting forth the details of
the Default, and the action which the Company proposes to take with respect thereto.



Section 4.06. Special Interest.



(a) If, at any time during the six-month period beginning on, and including, the date which is
six months after the last date of original issuance of the Notes, the Company shall fail to timely
file any document or report that the Company is required to file with the SEC pursuant to Section
13 or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods
thereunder and other than reports on Form 8-K) or the Notes are not otherwise freely tradable by
Holders other than Affiliates of the Company (as a result of restrictions pursuant to U.S.
securities law or the terms of this Indenture or the Notes), the Company shall, from and after such
date, together with each payment of interest on the Notes, pay additional interest on the Notes at
a rate equal to 0.25% per annum (“Filing Payments”) of the principal amount of Notes outstanding
for each day during such period for which the Company’s failure to file has occurred and is
continuing or the Notes are not so freely tradeable.



(b) If, and for so long as, the restrictive legend on the Notes has not been removed or the
Notes are not otherwise freely tradable by Holders other than the Company’s Affiliates (without
restrictions pursuant to U.S. securities law or the terms of this Indenture or the Notes) as of the
365th day after the date of this Indenture, the Company shall, from and after such date, together
with each payment of interest on the Notes, pay additional interest on the Notes at a rate equal to
0.25% per annum (“Restricted Transfer Payments” and together with Filing Payments, if any, “Special
Interest”) of the principal amount of Notes outstanding from and after such 365th date
until such restrictive legend is removed and the Notes are freely tradable (other than by Holders
that are Affiliates of the Company).



(c) If the Company is required to pay Special Interest to Holders of Notes, the Company shall
provide written notice (“Special Interest Notice”) to the Trustee of its obligation to pay Special
Interest before the required payment date for the Special Interest, and the Special Interest Notice
shall set forth the amount of Special Interest to be paid by the Company on such payment date. The
Trustee shall not at any time be under any duty to any Holder of Notes to


 


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determine the Special
Interest, or with respect to the nature, extent or calculation of the amount of Special Interest
when made, or with respect to the method employed in such calculation of the Special Interest, the
sole responsibility of which shall be that of the Company.



Section 4.07. Stay, Extension and Usury Laws. The Company covenants (to the extent that it
may lawfully do so) that it will 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 wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the performance of this
Indenture, and the Company (in each case, to the extent that it may lawfully do so) hereby
covenants that it will not, by resort to any such law to the extent it would 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. 144A Information. At any time that the Company is not subject to Section 13 or
15(d) of the Exchange Act, the Company shall, so long as any of the Notes or any shares of Common
Stock delivered upon conversion of the Notes 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 such shares of Common Stock the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Notes or such
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 shares of Common Stock may
reasonably request to the extent from time to time to enable such Holder or beneficial owner to
sell such Notes or such shares of Common Stock in accordance with Rule 144A under the Securities
Act, as such rule may be amended from time to time.



ARTICLE 5




CONSOLIDATION, MERGER, SALE OR LEASE OF ASSETS




Section 5.01. Consolidation, Merger, Sale or Lease of Assets by the Company. (a) The
Company may consolidate with or merge into any Person or convey, transfer or lease its properties
and assets substantially as an entirety to another Person (other than a Subsidiary of the Company)
only if:



(i) the resulting, surviving or transferee Person (if other than the Company) is a corporation
or other entity classified as a corporation for federal income tax purposes (and continuing to be
classified as such through the Maturity Date) organized and existing under (a) the laws of the
United States of America, any State thereof or the District of Columbia or (b) any other
jurisdiction so long as the successor company agrees to submit to service of process in any state
in the United States of America or the District of Columbia and, in the case of clause (b) above,
the successor company provides a full and unconditional indemnity and provision for additional
amounts for any incremental amounts required to be withheld from payments or deliveries to Holders
or beneficial owners of the Securities under applicable United States or


 


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foreign laws, rules,
regulations or authorities, and any other incremental tax liabilities or costs of such Holders or
beneficial owners as a result of such merger or other transaction;



(ii) such corporation or other entity (if other than the Company) assumes by supplemental
indenture executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee,
all of the obligations of the Company under the Notes and this Indenture;



(iii) immediately after giving effect to the transaction, no Event of Default and no Default
has occurred and is continuing; and



(iv) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or lease and the supplemental
indenture (if any) comply with this Indenture.



For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the
properties and assets of one or more Subsidiaries (other than to the Company or another
Subsidiary), which, if such assets were owned by the Company, would constitute all or substantially
all of the properties and assets of the Company and its Subsidiaries, taken as a whole, shall be
deemed to be the transfer of all or substantially all of the properties and assets of the Company.



(b) Upon the consummation of any transaction effected in accordance with these provisions, if
the Company is not the resulting, surviving or transferee Person, the resulting, surviving or
transferee Person shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture and the Notes with the same effect as if such successor Person
had been named as the Company in this Indenture. Upon such substitution, except in the case of a
lease, unless the successor is one or more of the Company’s Subsidiaries, the Company shall be
released from its obligations under the Notes and this Indenture.



ARTICLE 6




DEFAULT AND REMEDIES




Section 6.01. Events of Default. An “Event of Default” shall occur with respect to the Notes
if:



(a) the Company defaults in payment of the principal or any Repurchase Price with respect to
any Note, when such becomes due and payable on the Maturity Date or a Repurchase Date, as
applicable, upon a declaration of acceleration or otherwise;



(b) the Company defaults in payment of any interest (including any Additional Interest) due on
any Note when the same becomes due and payable, and such default continues for a period of 30 days;


 


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(c) the Company fails to comply with its obligations under Article 5 and fails to cure (or
obtain a waiver of) such default within 5 days after the Company receives a written notice of such
default from the Trustee or by Holders of not less than 25% in aggregate principal amount of the
Notes then outstanding;



(d) the Company fails to comply with its obligation to convert the Notes into Common Stock
upon exercise of a Holder’s right to convert its Notes pursuant to Article 10 and such default
continues for a period of five calendar days;



(e) the Company fails to issue any notice of the occurrence of a Fundamental Change as
required under Section 3.01(b) of this Indenture or a Make-Whole Change in Control as required
under Section 10.13(a) of this Indenture, and such default continues for a period of five days;



(f) the Company fails to comply with any of its other covenants or agreements in the Notes or
this Indenture and fails to cure (or obtain a waiver of) such default within 60 days after the
Company receives a written notice of such default from the Trustee or from Holders of not less than
25% in aggregate principal amount of the Notes then outstanding;



(g) default by the Company or any of its Subsidiaries in the payment of the principal or
interest on any mortgage, agreement or other instrument under which there is outstanding, or by
which there is secured or evidenced any Debt in excess of $15,000,000 in the aggregate of the
Company and/or any of its Subsidiaries, whether such Debt now exists or shall hereafter be created,
resulting in such Debt becoming or being declared due and payable, and such acceleration shall not
have been discharged, cured, waived, rescinded or annulled within 30 days after written notice of
such acceleration has been received by the Company or such Subsidiary;



(h) a final judgment for the payment of at least $15,000,000 is rendered against the Company
or any of its Subsidiaries and such amount is not covered by insurance or an indemnity or not
discharged or stayed within 60 days after (i) the date on which the right to appeal the judgment
has expired if no such appeal has commenced or (ii) the date on which all rights to appeal have
been extinguished;



(i) the Company or any of its Significant Subsidiaries pursuant to or under or within the
meaning of any Bankruptcy Law, (i) commences a voluntary case or proceeding; (ii) consents to the
entry of an order for relief against it in an involuntary case or proceeding or the commencement of
any case against it; (iii) consents to the appointment of any receiver, trustee, assignee,
liquidator, custodian or similar official of it or for any substantial part of its property; (iv)
makes a general assignment for the benefit of its creditors; (v) files a petition in bankruptcy or
answer or consent seeking reorganization or relief; or (vi) consents to the filing of such petition
or the appointment of or taking possession by any receiver, trustee, assignee, liquidator,
custodian or similar official; or



(j) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that
(i) is for relief against the Company or any of its Significant Subsidiaries in an involuntary case
or proceeding, or adjudicates the Company or any of its Significant Subsidiaries


 


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insolvent or
bankrupt; (ii) appoints any receiver, trustee, assignee, liquidator, custodian or similar official
of the Company or Significant Subsidiary or for any substantial part of their property; or (iii)
orders the winding up or liquidation of the Company or any of its Significant Subsidiaries, and the
order or decree remains unstayed and in effect for 90 days (an event of default specified in clause
(g) or (h) a “Bankruptcy Default”).



Section 6.02. Acceleration. If an Event of Default, other than a Bankruptcy Default that
relates to the Company (and not solely with respect to a Significant Subsidiary of the Company) and
subject to Section 6.15 of this Indenture, occurs and is continuing under this Indenture, the
Trustee or the Holders of at least 25% in aggregate of the outstanding principal amount of the
Notes, by written notice to the Company (and to the Trustee if the notice is given by the Holders),
may, and the Trustee at the request of such Holders shall, declare the principal of and accrued and
unpaid interest (including any Additional Interest) on the Notes to be immediately due and payable.
Upon a declaration of acceleration, such principal and interest (including any Additional
Interest) will become immediately due and payable. If a Bankruptcy Default occurs that relates to
the Company (and not solely with respect to Significant Subsidiary of the Company), the principal
of and accrued and unpaid interest (including any Additional Interest) on the Notes then
outstanding will become immediately due and payable automatically without any declaration or other
act on the part of the Trustee or any Holder.



Section 6.03. Other Remedies. If an Event of Default occurs and is continuing, the Trustee
may pursue, in its own name or as trustee of an express trust, any available remedy by proceeding
at law or in equity to collect the payment of principal of and interest (including any Additional
Interest) on the Notes or to enforce the performance of any provision of the Notes or this
Indenture. The Trustee may maintain a proceeding even if it does not possess any of the Notes or
does not produce any of them in the proceeding.



Section 6.04. Waiver of Past Defaults. Except as otherwise provided in Section 6.07 and
Section 9.02(b), the Company and the Trustee may amend this Indenture and the Notes with the
written consent of the Holders of at least a majority in principal amount of the outstanding Notes,
and the Holders of a majority in principal amount of the outstanding Notes by written notice to the
Company and to the Trustee may waive any existing or future Default or Event of Default and its
consequences and rescind and annul a declaration of acceleration with respect to such Default or
Event of Default and its consequences (other than an uncured default (a) in the payment of the
principal amount with respect to any Note, accrued and unpaid interest (including any Additional
Interest) with respect to any Note or the Repurchase Price with respect to any Note, (b) in the
delivery of the Common Stock due upon conversion of the Notes and (c) in respect of any provision
that under the express terms of this Indenture cannot be modified or amended without the consent of
the Holder of each outstanding Note affected) if:



(i) all existing Events of Default on the Notes that have become due solely by the declaration
of acceleration have been cured or waived, and



(ii) the rescission would not conflict with any judgment or decree of a court of competent
jurisdiction.


 


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Upon such waiver, the Default will cease to exist, and any Event of Default arising therefrom
will be deemed to have been cured, but no such waiver will extend to any subsequent or other
Default or impair any right consequent thereon.



Section 6.05. Control by Majority. The Holders of a majority in aggregate principal amount
of the outstanding Notes may 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.
However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture,
that may involve the Trustee in personal liability, or that the Trustee determines in good faith
may be unduly prejudicial to the rights of Holders of Notes not joining in the giving of such
direction, and may take any other action it deems proper that is not inconsistent with any such
direction received from Holders of Notes.



Section 6.06. Limitation on Suits. A Holder may not institute any proceeding, judicial or
otherwise, with respect to this Indenture or the Notes, or for the appointment of a receiver or
trustee, or for any other remedy under this Indenture or the Notes, unless:



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



(ii) Holders of at least 25% in aggregate principal amount of outstanding Notes have made
written request to the Trustee to institute proceedings in respect of the Event of Default in its
own name as Trustee under this Indenture;



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



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



(v) during such 60-day period, the Holders of a majority in aggregate principal amount of the
outstanding Notes have not given the Trustee a direction that is inconsistent with such written
request.



Section 6.07. Rights of Holders to Receive Payment. Notwithstanding anything to the
contrary, the right of a Holder of a Note to receive (a) payment of principal of or interest
(including any Additional Interest) on its Note on the Maturity Date or the relevant Interest
Payment Date, as the case may be, (b) payment of the Repurchase Price on the Repurchase Date and
(c) delivery of Common Stock upon conversion of such Note on the date specified in Section
10.02(b), or to bring suit for the enforcement of any such payment or delivery, as the case may be,
on or after such respective dates, may not be impaired or adversely affected without the consent of
that Holder.



Section 6.08. Collection Suit by Trustee. If an Event of Default described in clauses (a) or
(b) of Section 6.01 occurs and is continuing, the Trustee may recover judgment in its own


 


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name and
as trustee of an express trust for the whole amount of principal and accrued interest (including
any Additional Interest) remaining unpaid, together with interest on overdue principal and, to the
extent lawful, overdue installments of interest, in each case at the rate specified in the Notes,
and such other amounts specified in Section 7.06 hereunder.



Section 6.09. Trustee May File Proofs of Claim. The Trustee may file proofs of claim and
other papers or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee hereunder) and the Holders
allowed in any judicial proceedings relating to the Company or its creditors or property, and is
entitled and empowered to collect, receive and distribute any money, securities or other property
payable or deliverable upon conversion or exchange of the Notes or upon any such claims. Any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, if the Trustee consents to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agent and counsel, and any other amounts due the Trustee hereunder. Nothing in
this Indenture will be deemed to empower 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 Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.



Section 6.10. Priorities. If the Trustee collects any money or property pursuant to this
Article, it shall pay out the money or property in the following order:



First: to the Trustee for all amounts due under Section 7.06 hereof;



Second: to Holders for amounts then due and unpaid for principal of and interest (including
any Additional Interest) on the Notes, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal and interest (including any
Additional Interest);



Third: to Holders for other amounts then due and unpaid in respect of the Notes, ratably,
without preference or priority of any kind, according to the amounts due and payable in respect of
the Notes; and




Fourth: to the Company or to such Person as a court of competent jurisdiction shall direct.



The Trustee, upon written notice to the Company, may fix a record date and payment date for
any payment to Holders pursuant to this Section. At least 15 days before such record date, the
Trustee shall send to each Noteholder and the Company a notice that states the record date, the
payment date and the amount to be paid.


 


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Section 6.11. Restoration of Rights and Remedies. If the Trustee or any Holder has
instituted a proceeding to enforce any right or remedy under this Indenture and the proceeding has
been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or
to the Holder, then, subject to any determination in the proceeding, the Company, the Trustee and
the Holders will be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Company, the Trustee and the Holders will continue as
though no such proceeding had been instituted.



Section 6.12. Undertaking for Costs. In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court may require any party litigant in such suit (other than the Trustee) to file an
undertaking to pay the costs of the suit, and the court may assess reasonable costs, including
reasonable attorneys fees, against any party litigant (other than the Trustee) in the suit having
due regard to the merits and good faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by a Holder to enforce payment of (a) principal of or interest
(including any Additional Interest) on any Note on the respective due dates, (b) the Repurchase
Price on the Repurchase Date, (c) the Common Stock due upon conversion of a Note or (d) a suit by
Holders of more than 10% in principal amount of the outstanding Notes.



Section 6.13. Rights and Remedies Cumulative. No right or remedy conferred or reserved to
the Trustee or to the Holders under this Indenture is intended to be exclusive of any other right
or remedy, and all such rights and remedies are, to the extent permitted by law, cumulative and in
addition to every other right and remedy hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or exercise of any right or remedy hereunder, or otherwise, will not
prevent the concurrent assertion or exercise of any other right or remedy.



Section 6.14. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any
Holder to exercise any right or remedy accruing upon any Event of Default will impair any such
right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.



Section 6.15. Failure to File. Notwithstanding anything in this Article 6, the Company may,
at its option, elect that the sole remedy for an Event of Default relating to its failure to comply
with its obligations described under Section 4.04 will for the first 180 days after the occurrence
of such an Event of Default (which will be the 60th day after written notice is provided to the
Company in accordance with Section 6.01(f)), consist exclusively of the right to receive additional
interest on the Notes as provided in this Section 6.15. If the Company makes such election, such
sole remedy shall, for the first 90 days after the occurrence of such Event of Default, consist
exclusively of the right to receive additional interest on the Notes in an amount equal to 0.25% of
the principal amount of the Notes (the “Initial Reporting Payments”) (such election, the “Initial
Extension Right”). If the Company exercises the Initial Extension Right, the Initial Reporting
Payments will be payable to all Noteholders of record on the record date


 


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specified by the Company
in its notice that it is electing to use the Initial Extension Right. On the 91st day after such
Event of Default (if such violation is not cured or waived before such 91st day), the Notes will be
subject to acceleration as provided in Section 6.02; provided, however, that the Company may, at
its option, elect that the sole remedy of Noteholders will for the succeeding 90 days consist
exclusively of the right to receive, in lieu of the Initial Reporting Payments, a payment of
additional interest on the Notes in an amount equal to 0.50% of the principal amount of the Notes
(the “Incremental Reporting Payments” and together with the Initial Reporting Payments, the
“Reporting Payments”) (such election, the “Incremental Extension Right”). Any Reporting Payments
payable by the Company pursuant to this Section 6.15 are in addition to, and not in lieu of,
Special Interest payable by the Company pursuant to Section 4.06. On the 181st day after such
Event of Default (if the Event of Default relating to the reporting obligations is not cured or
waived before such 181st day), the Notes shall be subject to acceleration as provided in Section
6.02. If the Company does not elect to pay the Initial Reporting Payments or the Incremental
Reporting Payments upon any such Event of Default in accordance with this paragraph, the Notes will
be subject to acceleration as provided in Section 6.02. This Section 6.15 shall not affect the
rights of Holders of Notes if any other Event of Default occurs under the Indenture.



In order to exercise the Initial Extension Right and elect to pay the Initial Reporting
Payments as the sole remedy during the first 90 days after the occurrence of any Event of Default
relating to the failure to comply with the reporting obligations in accordance with the preceding
paragraph, the Company must notify all holders of Notes and the Trustee and Paying Agent of such
election in writing before the Close of Business on the date on which such Event of Default occurs.
In order to exercise the Incremental Extension Right (following the exercise of the Initial
Extension Right) and to pay the Incremental Reporting Payments as the sole remedy starting the 91st
day after the occurrence of any Event of Default relating to the failure to comply with the
reporting obligations in accordance with the preceding paragraph, the Company must notify all
holders of Notes and the Trustee and Paying Agent in writing of such election prior to the Close of
Business on the 89th day after the occurrence of an Event of Default for which the Company has
elected to exercise its Incremental Extension Right. If the Company fails to timely give such
notice or pay any Reporting Payments after giving such notice, the Notes will be immediately
subject to acceleration as provided in Section 6.02.



ARTICLE 7




THE TRUSTEE




Section 7.01. General. (a) The duties and responsibilities of the Trustee are as set forth
herein. Whether or not expressly so provided, every provision of this Indenture that in any way
relates to the Trustee is subject to this Article.



(b) Except during the continuance of an Event of Default, the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others, and no implied covenants or
obligations will be read into this Indenture against the Trustee. If an Event of Default has
occurred and is continuing, the Trustee shall exercise those rights and powers vested


 


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in it by this
Indenture, and use the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.



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




	 	(i)	 	this Section 7.01(c) does not limit the effect of paragraph (b)
of this Section 7.01;






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






	 	(iii)	 	the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.05 hereof.





Section 7.02. Certain Rights of Trustee. Subject to Trust Indenture Act Sections 315(a)
through (d):



(a) In the absence of bad faith on its part, the Trustee may conclusively rely, and will be
protected in acting or refraining from acting, upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to be genuine and to have
been signed or presented by the proper Person. The Trustee need not investigate any fact or matter
stated in the document, but, in the case of any document which is specifically required to be
furnished to the Trustee pursuant to any provision hereof, the Trustee shall examine the document
to determine whether it conforms to the form requirements of this Indenture (but need not confirm
or investigate the accuracy of mathematical calculations or other facts stated therein). The
Trustee, in its discretion, may make further inquiry or investigation into such facts or matters as
it sees fit.



(b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate
and/or an Opinion of Counsel conforming to Section 12.04 and the Trustee will not be liable for any
action it takes or omits to take in good faith in reliance on the certificate or opinion.



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



(d) The Trustee will be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders, unless such Holders have
offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.


 


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(e) The Trustee will not be liable for any action it takes or omits to take in good faith that
it believes to be authorized or within its rights or powers or for any action it takes or omits to
take in accordance with the direction of the Holders in accordance with Section 6.05 relating to
the time, method and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture.



(f) The Trustee may consult with counsel, and the written advice of such counsel or any
Opinion of Counsel will be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance thereon.



(g) No provision of this Indenture will require the Trustee to expend or risk its own funds or
otherwise incur any liability in the performance of its duties hereunder, or in the exercise of its
rights or powers.



(h) Except with respect to Section 4.01, the Trustee shall have no duty to inquire as to
performance of the Company with respect to the covenants contained in Article 4. In addition, the
Trustee shall not be deemed to have knowledge of a Default or an Event of Default except (i) a
Default or Event of Default occurring pursuant to Section 6.01(a) and 6.01(b), or (ii) any Default
or Event of Default of which the Trustee shall have received written notification from the Company
or the Holders of at least 25% in aggregate principal amount of Notes or obtained actual knowledge.



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



(j) The permissive rights of the Trustee to take certain actions under this Indenture shall
not be construed as a duty unless so specified herein.



(k) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company will be sufficient if signed by an Officer of the Company.



Section 7.03. Individual Rights of Trustee. The Trustee, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b) and
311.



Section 7.04. Trustee’s Disclaimer. The Trustee (a) makes no representation as to the
validity or adequacy of this Indenture or the Notes, (b) is not accountable for the Company’s use
or application of the proceeds from the Notes or any money paid to the Company or upon the
Company’s direction under any provision of this Indenture, it will not be responsible for the use
or application of any money received by any Paying Agent other than the Trustee, and (c) is not
responsible for any statement or recital in this Indenture or any statement in the Notes or any


 


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other document in connection with the sale of the Notes or pursuant to this Indenture other than
its certificate of authentication.



Section 7.05. Notice of Default. If any Default or Event of Default occurs and is continuing
and is known to the Trustee, the Trustee shall send notice of the Default or Event of Default to
each Holder within 90 days after it occurs, unless the Default or Event of Default has been cured;
provided that, except in the case of a default (w) in the payment of the principal of or interest
(including any Additional Interest) on any Note (x) in the payment of the Repurchase Price on the
Repurchase Date or (y) in the delivery of Common Stock upon conversion of such Note on the date
specified in Section 10.02(b), the Trustee may withhold the notice if and so long as a Responsible
Officer or a committee of Responsible Officers of the Trustee in good faith determines that
withholding the notice is in the interest of the Holders. Notice to Holders under this Section
will be given in the manner and to the extent provided in Trust Indenture Act Section 313(c).



Section 7.06. Compensation and Indemnity. (a) The Company shall pay the Trustee
compensation as agreed upon in writing for its services. The compensation of the Trustee is not
limited by any law on compensation of a Trustee of an express trust. The Company shall reimburse
the Trustee upon request for all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by the Trustee, including the compensation and expenses of the Trustee’s agents
and counsel.



(b) The Company shall indemnify the Trustee for, and hold it harmless against, any loss or
liability or expense incurred by it (except to the extent such loss, liability or expense is
attributable to the Trustee’s negligence or bad faith) arising out of or in connection with the
acceptance or administration of this Indenture and its duties under this Indenture and the Notes,
including the costs and expenses of defending itself against any claim (whether asserted by the
Company, any Holder or any other Person) or liability and of complying with any process served upon
it or any of its officers in connection with the exercise or performance of any of its powers or
duties under this Indenture and the Notes.



(c) To secure the Company’s payment obligations in this Section, the Trustee shall have a lien
before the Notes on all money or property held or collected by the Trustee, in its capacity as
Trustee, except money or property held in trust to pay principal of, and interest (including any
Additional Interest) on particular Notes.



Section 7.07. Replacement of Trustee. (a) (i) The Trustee may resign at any time by written
notice to the Company.



(ii) The Holders of a majority in principal amount of the outstanding Notes may remove the
Trustee by written notice to the Trustee.



(iii) If the Trustee is no longer eligible under Section 7.09 or in the circumstances
described in Trust Indenture Act Section 310(b), any Holder that satisfies the requirements of
Trust Indenture Act Section 310(b) may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.


 


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(iv) The Company may remove the Trustee if (A) the Trustee is no longer eligible under Section
7.09; (B) the Trustee is adjudged a bankrupt or an insolvent; (C) a receiver or other public
officer takes charge of the Trustee or its property; or (D) the Trustee becomes incapable of
acting.



A resignation or removal of the Trustee and appointment of a successor Trustee will become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.



(b) If the Trustee has been removed by the Holders, Holders of a majority in principal amount
of the Notes may appoint a successor Trustee with the consent of the Company. Otherwise, if the
Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, the
Company will promptly appoint a successor Trustee. If the successor Trustee does not deliver its
written acceptance within 30 days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of a majority in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor Trustee.



(c) Upon delivery by the successor Trustee of a written acceptance of its appointment to the
retiring Trustee and to the Company, (i) the retiring Trustee shall transfer all property held by
it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.06(c), (ii)
the resignation or removal of the retiring Trustee shall become effective, and (iii) the successor
Trustee will have all the rights, powers and duties of the Trustee under this Indenture. Upon
request of any successor Trustee, the Company shall execute any and all reasonable instruments for
fully and vesting in and confirming to the successor Trustee all such rights, powers and trusts.
The Company shall give notice of any resignation and any removal of the Trustee and each
appointment of a successor Trustee to all Holders, and include in the notice the name of the
successor Trustee and the address of its Corporate Trust Office.



(d) Notwithstanding replacement of the Trustee pursuant to this Section, the Company’s
obligations under Section 7.06 shall continue for the benefit of the retiring Trustee.



(e) The Trustee shall give the notices provided for in, and otherwise comply with, Trust
Indenture Act Section 310(b).



Section 7.08. Successor Trustee by Merger. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or transferee corporation or
national banking association without any further act will be the successor Trustee with the same
effect as if the successor Trustee had been named as the Trustee in this Indenture.



Section 7.09. Eligibility. This Indenture must always have a Trustee that satisfies the
requirements of Trust Indenture Act Section 310(a) and has a combined capital and surplus of at
least $250,000,000 as set forth in its most recent published annual report of condition.


 


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Section 7.10. Money Held in Trust. The Trustee will not be liable for interest on any money
received by it except as it 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.



ARTICLE 8




DISCHARGE




Section 8.01. Satisfaction and Discharge of this Indenture. (a) This Indenture shall cease
to be of further effect if either: (i) all outstanding Notes (other than Notes replaced pursuant
to Section 2.07) shall have been delivered to the Trustee for cancellation, (ii) all outstanding
Notes shall have become due and payable on the Maturity Date or on any Repurchase Date in
connection with any repurchase upon the occurrence of a Fundamental Change or (iii) all outstanding
Notes shall have been delivered for conversion pursuant to Article 10, and the Company irrevocably
deposits or delivers, as the case may be, before the applicable date on which such payment is due
and payable, or such conversion is to be settled, with the Trustee, the Paying Agent (if the Paying
Agent is not the Company or any of its Affiliates) or the Conversion Agent, Cash in respect of such
payment or Common Stock in respect of any such conversion on the Maturity Date, the Repurchase Date
or the date such conversion is to be settled, as the case may be; provided that, in all cases, the
Company shall pay to the Trustee all other sums payable hereunder by the Company.



(b) The Company may exercise its satisfaction and discharge option with respect to the Notes
only if:



(i) no Default or Event of Default with respect to the Notes shall exist on the date of such
deposit;



(ii) such deposit or delivery, as the case may be, shall not result in a breach or violation
of, or constitute a Default or Event of Default under, this Indenture; and



(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel (which may rely upon such Officers’ Certificate as to the absence of Defaults and Events of
Default and as to any factual matters), each stating that all conditions precedent provided for
herein 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 and, if money shall have been deposited
with or Common Stock shall have been delivered to the Trustee pursuant to clause (a) of this
Section, the provisions of Section 2.03, Section 2.04, Section 2.05, Section 2.06, Section 2.07,
Section 2.12, Section 3.01, Article 5, Article 10 and this Article 8, shall survive and the Company
shall be required to make all payments and deliveries required by such Sections or Articles, as the
case may be, irrespective of any prior satisfaction and discharge until the Notes have been paid in
full.


 


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Section 8.02. Application of Trust Money. Subject to the provisions of Section 8.03, the
Trustee or a Paying Agent shall hold in trust, for the benefit of the Holders, all money, Common
Stock or other consideration paid or delivered to it, as the case may be, pursuant to Section 8.01
and shall apply such money, Common Stock or other consideration in accordance with this Indenture
and the Notes to the payment of the principal amount of (including the relevant Repurchase Price)
and interest (including any Additional Interest) on the Notes or delivery of the Common Stock
issuable upon conversion of the Notes.



Section 8.03. Repayment to Company. The Trustee and each Paying Agent shall promptly pay or
deliver, as the case may be, to the Company upon request any excess money, Common Stock or other
consideration (x) paid or delivered to them pursuant to Section 8.01 or (y) held by them at any
time.



Subject to applicable abandoned property law, the Trustee and each Paying Agent shall also pay
or deliver, as the case may be, to the Company upon request any money, Common Stock or other
consideration held by them for the payment of the principal amount of (including the relevant
Repurchase Price) and interest on, or the amount due in connection with any conversion of, the
Notes that remains unclaimed for six months after a right to such money, Common Stock or other
consideration has matured (which maturity shall occur, for the avoidance of doubt, on the Maturity
Date, the Repurchase Date or the date specified in Section 10.02(b), as the case may be); provided
that the Trustee or such Paying Agent, before being required to make any such payment or delivery,
may at the expense of the Company cause to be mailed to each Holder entitled to such money, Common
Stock or other consideration or publish in a newspaper of general circulation in the City of New
York notice that such money, Common Stock or other consideration remains unclaimed and that after a
date specified therein, which shall be at least 30 days from the date of such mailing or
publication, any unclaimed balance or portion of such money, Common Stock or other consideration
then remaining will be repaid or re-delivered to the Company. After payment or delivery, as the
case may be, to the Company, Holders entitled to such money, Common Stock or other consideration
must look to the Company for payment or delivery as general creditors unless an applicable
abandoned property law designates another Person.



Section 8.04. Reinstatement. If the Trustee or any Paying Agent is unable to apply any
money, Common Stock or other consideration in accordance with Section 8.02 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company’s obligations under this
Indenture and the Notes shall be revived and reinstated as though no payment or delivery, as the
case may be, had occurred pursuant to Section 8.01 until such time as the Trustee or such Paying
Agent is permitted to apply all such money in accordance with Section 8.02; provided that if the
Company has made any payment of the principal amount of (including the relevant Repurchase Price)
or interest (including any Additional Interest) on, or the amount due in connection with any
conversion of, the Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive any such payment or delivery from
the money, Common Stock or other consideration held by the Trustee or such Paying Agent.


 


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ARTICLE 9




AMENDMENTS, SUPPLEMENTS AND WAIVERS




Section 9.01. Amendments Without Consent of Holders. The Company and the Trustee may amend
or supplement this Indenture or the Notes without notice to or the consent of any Noteholder:



(a) to cure any ambiguity, omission, defect or inconsistency in this Indenture or the Notes or
to conform, as necessary, this Indenture or the Notes to the section entitled “Description of
Notes” contained in the Private Placement Memorandum;



(b) to evidence a successor to the Company and the assumption by that successor of the
obligations of the Company under this Indenture in accordance with Article 5 or Section 10.12 of
this Indenture;



(c) to secure the obligations of the Company in respect of the Notes and this Indenture or to
add guarantees in respect of the Notes and this Indenture;



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




(e) to make any change to comply with the Trust Indenture Act, or any amendment thereto; and



(f) to make any other changes that do not individually or in the aggregate have a material
adverse effect on the rights of any Holder of the Notes, as certified by the Company in an
Officer’s Certificate.



Section 9.02. Amendments With Consent of Holders. (a) Except as otherwise provided in
Section 6.07 or paragraph (b), the Company and the Trustee may amend this Indenture and the Notes
with the written consent of the Holders of at least a majority in principal amount of the
outstanding Notes, and the Holders of a majority in principal amount of the outstanding Notes by
written notice to the Company and to the Trustee may waive any existing or future Default or Event
of Default and its consequences and rescind and annul a declaration of acceleration with respect to
such Default or Event of Default and its consequences, other than (x) an uncured default (i) in the
payment of the principal amount, or accrued and unpaid interest (including any Additional
Interest), with respect to any Note, (ii) the Repurchase Price with respect to any Note or (iii) in
the delivery of the Common Stock due upon conversion of the Notes, and (y) in respect of any
provision that under the express terms of this Indenture cannot be modified or amended without the
consent of the Holder of each outstanding Note affected.



(b) Notwithstanding the provisions of paragraph (a), without the consent of each Holder
affected, an amendment or waiver may not:


 


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



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



(iii) make any change that impairs or adversely affects the conversion rights of any Notes;



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



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



(vi) reduce the percentage in aggregate principal amount of Notes whose Holders must consent
to an amendment of this Indenture or to waive any past Default;



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



(viii) make any change in the amendment provisions which require each Holder’s consent or in
the waiver provisions of this Indenture.



(c) It is not necessary for Noteholders to approve the particular form of any proposed
amendment, supplement or waiver, but is sufficient if their consent approves the substance thereof.



(d) After an amendment, supplement or waiver under this Section becomes effective, the Company
shall send to the Holders affected thereby a notice briefly describing the amendment, supplement or
waiver. The Company will send supplemental indentures to Holders upon request. Any failure of the
Company to send such notice, or any defect therein, will not, however, in any way impair or affect
the validity of any such supplemental indenture or waiver.



Section 9.03. Effect of Consent. (a) After an amendment, supplement or waiver becomes
effective, it shall bind every Holder unless it is of the type requiring the consent of each Holder
affected. If the amendment, supplement or waiver is of the type requiring the consent of each
Holder affected, the amendment, supplement or waiver shall bind each Holder that has consented to
it and every subsequent Holder of a Note that evidences the same debt as the Note of the consenting
Holder.



(b) If an amendment, supplement or waiver changes the terms of a Note, the Trustee may require
the Holder to deliver it to the Trustee so that the Trustee may place an appropriate notation of
the changed terms on the Note and return it to the Holder, or exchange it for a new


 


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Note that
reflects the changed terms. The Trustee may also place an appropriate notation on any Note
thereafter authenticated. However, the effectiveness of the amendment, supplement or waiver is not
affected by any failure to annotate or exchange Notes in this fashion.



Section 9.04. Trustee’s Rights and Obligations. The Trustee is entitled to receive, and
shall be fully protected in relying upon, an Officers’ Certificate and/or an Opinion of Counsel
stating that the execution of any amendment, supplement or waiver authorized pursuant to this
Article is authorized or permitted by this Indenture. If the Trustee has received such an
Officers’ Certificate and/or Opinion of Counsel, it shall sign the amendment, supplement or waiver
so long as the same does not adversely affect the rights, duties or immunities of the Trustee. The
Trustee may, but is not obligated to, execute any amendment, supplement or waiver that affects the
Trustee’s own rights, duties or immunities under this Indenture.



ARTICLE 10




CONVERSION




Section 10.01. Conversion Privilege. Subject to and upon compliance with the provisions of
this Article 10, a Noteholder shall have the right, at such Noteholder’s option, to convert all or
any portion (if the portion to be converted is $1,000 principal amount or an integral multiple
thereof) of such Noteholder’s Notes at any time before the Close of Business on the Business Day
immediately preceding the Maturity Date at a conversion rate (the “Conversion Rate”) of 156.6465
shares of Common Stock per $1,000 principal amount of Notes, subject to adjustment as set forth in
this Article 10.



Section 10.02. Conversion Procedures; Conversion Settlement. (a) To convert a Note that is
represented by a Certificated Note, a Noteholder must (1) complete and manually sign a Conversion
Notice, in the form set forth on the back of the Note as Attachment 1, or a facsimile of the
Conversion Notice, (2) deliver the completed Conversion Notice or a facsimile and the Note to the
Conversion Agent the Company (with a copy to the Company’s legal counsel) and the transfer agent at
Registrar and Transfer Company, 10 Commerce Drive, Cranford, NJ 07016-3572, telephone 908.497.2300,
facsimile 908.497.2310, Attention: Diane Sayek, Vice President (3) if required, furnish appropriate
endorsements and transfer documents, (4) if required, pay all transfer or similar taxes and related
expenses in accordance with Section 10.04 and (5) if required, pay Cash equal to the amount of
interest due on the next Interest Payment Date for such Note in accordance with Section 10.02(e).
If a Noteholder holds a beneficial interest in a Global Note, to convert such beneficial interest,
such Noteholder must comply with requirements (4) and (5) as set forth in the immediately preceding
sentence and comply with the Applicable Procedures of the Depositary for converting a beneficial
interest in a Global Note. The first Business Day on which all of the requirements set forth in
the first sentence of this Section 10.02(a) (in the case of a Certificated Note) or the second
sentence of this Section 10.02(a) (in the case of a Global Note or a beneficial interest therein)
have been satisfied is referred to in this Indenture as the “Conversion Date.” The Conversion
Agent shall, within one (1) Business Day of any Conversion Date, provide notice to the Company, as
set forth in Section 12.02, of the occurrence of such Conversion Date. Upon delivery by a
Noteholder to the Conversion Agent of


 


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the Conversion Notice and the Note or, in the case of a
Global Note, compliance with the procedures set forth above, such Noteholder’s election to convert
shall be irrevocable.



(b) Delivery of shares of Common Stock upon conversion of Notes shall occur on the third
Business Day immediately following the relevant Conversion Date.



(c) A Noteholder receiving Common Stock upon conversion 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 Conversion Date.



(d) No payment or adjustment shall be made for dividends on, or other distributions with
respect to, any Common Stock except as provided in this Article 10. Upon conversion of a Note, a
Noteholder will not receive, except as described below, any Cash payment representing accrued
interest (including any Additional Interest). Instead, accrued interest (including any Additional
Interest) will be deemed paid by the shares of Common Stock received by the Noteholder upon
conversion. Delivery to the Noteholder of such shares of Common Stock shall thus be deemed to
satisfy (1) the Company’s obligation to pay the principal amount of a Note, and (2) the Company’s
obligation to pay any accrued and unpaid interest (including any Additional Interest) on the Note
to, but not including, the Conversion Date. As a result, upon conversion of a Note, accrued and
unpaid interest (including any Additional Interest) on such Note is deemed paid in full rather than
cancelled, extinguished or forfeited.



(e) Notwithstanding Section 10.02(d), if Notes are converted after the Close of Business on a
Regular Record Date but prior to the Open of Business on the immediately following Interest Payment
Date, Holders of such Notes at the Close of Business on such Regular Record Date will receive the
full amount of interest payable on such Notes on the corresponding Interest Payment Date
notwithstanding the conversion. Such Notes, upon surrender for conversion during the period from
Close of Business on any Regular Record Date to the Open of Business on the immediately following
Interest Payment Date, must be accompanied by Cash equal to the amount of interest payable on such
Interest Payment Date on the Notes so converted; provided that no such payment need be made (1) if
the Company has specified a Repurchase Date that is after a record date but on or before the next
succeeding Interest Payment Date, (2) to the extent of any Defaulted Interest that exists at the
time of conversion with respect to such Note or (3) with respect to any Notes converted after the
record date immediately preceding the Maturity Date and before the Close of Business on the
Business Day immediately preceding the Maturity Date.



(f) If a Noteholder converts more than one Note at the same time, the number of shares of
Common Stock and the amount of Cash delivered in lieu of fractional shares, if any, due upon
conversion shall be determined based on the total principal amount of the Notes converted.




 


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(g) Upon surrender of a Note that is converted in part, 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 unconverted portion of the Note surrendered.



Section 10.03. Fractional Shares. The Company will not issue a fractional share of Common
Stock upon conversion of a Note. Instead, the Company shall pay Cash in lieu of fractional shares
based on the Closing Price of Common Stock on the applicable Conversion Date.



Section 10.04. Taxes on Conversion. If a Holder converts a Note, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock
upon the conversion. However, the Holder shall pay any such tax which is due because the Holder
requests shares of Common Stock to be issued in a name other than the Holder’s name. The Company
may refuse to issue or deliver any such stock certificate unless and until the Holder requesting
the issue thereof shall have paid to the Company the amount of such tax or shall have established
to the satisfaction of the Company that such tax has been paid.



Section 10.05. Company to Provide Common Stock. The Company shall, from time to time as may
be necessary, reserve out of its authorized but unissued shares of Common Stock a sufficient number
of shares of Common Stock to permit the delivery in respect of all outstanding Notes of the number
of shares of Common Stock due upon conversion.



All shares of Common Stock delivered upon conversion of the 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.



The Company shall comply with all federal and state securities laws regulating the offer and
delivery of shares of Common Stock upon conversion of Notes, if any, and shall list or cause to
have quoted such shares of Common Stock on each national or regional securities exchange or in the
over-the-counter market or such other market on which Common Stock is then listed or quoted.



In addition, if any shares of Common Stock that would be issuable upon conversion of Notes
hereunder require registration with or approval of any governmental authority before such shares of
Common Stock may be issued upon such conversion, the Company will cause such shares of Common Stock
to be duly registered or approved, as the case may be.



Section 10.06. Adjustment for Change in Capital Stock. If the Company issues shares of the
Common Stock as a dividend or distribution on shares of the Common Stock, or if the Company effects
a share split or share combination, then the Applicable Conversion Rate shall be adjusted so that
the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately
prior to the Close of Business on the Record Date for such dividend or distribution, or immediately
prior to the Open of Business on the effective date of such share split or share combination, as
the case may be, by a fraction:


 


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(i) the numerator of which shall be the number of shares of Common Stock outstanding
immediately after giving effect to such dividend or distribution, share split or share combination,
as the case may be; and



(ii) the denominator of which shall be the number of shares of Common Stock outstanding
immediately prior to the Close of Business on the Record Date for such dividend or distribution, or
immediately prior to the Open of Business on the effective date of such share split or share
combination, as the case may be.



Any adjustment made pursuant to this Section 10.06 shall become effective immediately after
the Close of Business on the Record Date for such dividend or distribution, or immediately after
the Open of Business on the effective date for such share split or share combination. If any
dividend or distribution of the type described in this Section 10.06 is declared but not so paid or
made, or any share split or combination of the type described in this Section 10.06 is announced
but the outstanding shares of the Common Stock are not split or combined, as the case may be, the
Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors
determines not to pay such dividend or distribution, or not to split or combine the outstanding
shares of Common Stock, as the case may be, to the Conversion Rate that would then be in effect if
such dividend, distribution, share split or share combination had not been declared or announced.



Section 10.07. Adjustment for Rights, Options or Warrants Issue. If the Company distributes
to all or substantially all holders of the Common Stock any rights, options or warrants entitling
them for a period of not more than 60 calendar days from the Record Date of such distribution to
subscribe for or purchase shares of Common Stock, at a price per share less than the average of the
Closing Prices per share of Common Stock during the 10 consecutive Trading-Day period ending on the
Trading Day immediately preceding the first public announcement of such distribution, the
Applicable Conversion Rate shall be increased so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the Close of Business on the Record
Date for such distribution by a fraction:



(i) the numerator of which shall be the sum of (x) the number of shares of Common Stock
outstanding immediately prior to the Close of Business on the Record Date for such distribution,
and (y) the total number of shares of Common Stock issuable pursuant to such rights, options or
warrants; and



(ii) the denominator of which shall be the sum of (x) the number of shares of Common Stock
outstanding immediately prior to the Close of Business on the Record Date for such distribution,
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 Closing Prices of the Common Stock over
the 10 consecutive Trading-Day period ending on the Trading Day immediately preceding the first
public announcement of such distribution.



Any increase made under this Section 10.07 shall be made successively whenever any such
rights, options or warrants are distributed and shall become effective immediately after the


 


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Close of Business on the Record Date for such distribution. To the extent that shares of
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 distribution 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 distributed, the Conversion Rate shall be decreased to the
Conversion Rate that would then be in effect if such Record Date for such distribution had not
occurred.




In determining whether any rights, options or warrants entitle the holders to subscribe for or
purchase shares of Common Stock at less than such average of the Closing Prices, 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.




Section 10.08. Adjustment for Other Distributions.



(a) If the Company distributes shares of its Capital Stock, evidences of its indebtedness,
other of its 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 (x) dividends,
distributions, rights, options or warrants referred to in Section 10.06 or Section 10,07; (y)
dividends or distributions paid exclusively in Cash; and (z) Spin-Offs to which the provisions set
forth below in Section 10.08(b) shall apply), then the Applicable Conversion Rate shall be
increased so that the same shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to the Close of Business on the Record Date for such distribution by a
fraction:



(i) the numerator of which shall be the average of the Closing Prices of the Common Stock over
the 10 consecutive Trading-Day period ending on the Trading Day immediately preceding the Ex-Date
for such distribution; and



(ii) the denominator of which shall be (x) the average of the Closing Prices of the Common
Stock over the 10 consecutive Trading-Day period ending on the Trading Day immediately preceding
the Ex-Date for such distribution, minus (y) the fair market value (as determined by the Board of
Directors) of such shares of Capital Stock, evidences of indebtedness, assets or property or
rights, options or warrants distributed with respect to each outstanding share of Common Stock on
the Ex-Date for such distribution.



If “the fair market value (as determined by the Board of Directors) of such shares of Capital
Stock, evidences of indebtedness, assets, property or rights, options or warrants distributed with
respect to each outstanding share of Common Stock on the Ex-Date for such distribution” is equal to
or greater than the “the average of the Closing Prices of the Common Stock over the 10 consecutive
Trading-Day period ending on the Trading Day immediately preceding the Ex-Date for such
distribution” (as each such phrase is used above), in lieu of the foregoing increase, each Holder
of a Note shall receive, in respect of each $1,000 principal


 


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amount thereof, at the same time and upon the same terms as holders of the Common Stock, the
amount and kind of such Capital Stock, evidences of the indebtedness, other assets or property or
rights, options or warrants to acquire the Company’s Capital Stock or other securities that such
Holder would have received if such Holder owned a number of shares of Common Stock equal to the
Applicable Conversion Rate in effect on the Record Date for the distribution.




Any increase made under this Section 10.08(a) shall become effective immediately after the
Close of Business on the Record Date for such distribution. If such distribution is not so paid or
made, the Applicable Conversion Rate shall be decreased to be the Applicable Conversion Rate that
would then be in effect if such distribution had not been declared.



(b) Notwithstanding anything to the contrary in Section 10.08(a), if the Company pays any
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, where such Capital Stock or similar equity interest is listed or quoted (or will be listed
or quoted upon consummation of the Spin-Off (as defined below)) on a national or regional
securities exchange (a “Spin-Off”), then the Applicable Conversion Rate shall be increased so that
the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately
prior to the Close of Business on the tenth Trading Day immediately following, and including, the
Ex-Date of the Spin-Off by a fraction:



(i) the numerator of which will be the sum of (x) the average of the Closing Prices of the
Capital Stock or similar equity interest distributed to holders of Common Stock applicable to one
share of Common Stock over the ten consecutive Trading Day period immediately following, and
including, the Ex-Date for the Spin-Off and (y) the average of the Closing Prices of Common Stock
over the ten consecutive Trading Day period immediately following, and including, the Ex-Date for
the Spin-Off; and



(ii) the denominator of which is the average of the Closing Prices of Common Stock over the
ten consecutive Trading Day period immediately following, and including, the Ex-Date for the
Spin-Off.



The adjustment to the Applicable Conversion Rate pursuant to this Section 10.08(b) shall occur
on the tenth Trading Day immediately following, and including, the Ex-Date for the Spin-Off;
provided that, for purposes of determining the Applicable Conversion Rate, in respect of any
conversion during the ten Trading Days following the Ex-Date for any Spin-Off, references in this
Section 10.08(b) to 10 Trading Days shall be deemed replaced with such lesser number of Trading
Days as have elapsed between the Ex-Date for such Spin-Off and the relevant Conversion Date.



Section 10.09. Adjustment for Cash Dividends. If the Company pays or makes any Cash dividend
or distribution to all or substantially all holders of the Common Stock, other than a regular,
quarterly Cash dividend that does not exceed $0.025 per share (the “Initial Dividend Threshold”),
then the Applicable Conversion Rate shall be increased so that the same shall equal


 


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the rate determined by multiplying the Conversion Rate in effect immediately prior to the
Close of Business on the Record Date for such dividend or distribution by a fraction:




(i) the numerator of which shall be (x) the Closing Price of the Common Stock on the Trading
Day immediately preceding the Ex-Date for such dividend or distribution, minus (y) the Initial
Dividend Threshold (provided that if the dividend or distribution in question is not a regular,
quarterly Cash dividend, the Initial Dividend Threshold shall be deemed to be zero); and



(ii) the denominator of which shall be (x) the Closing Price of the Common Stock on the
Trading Day immediately preceding the Ex-Date for such dividend or distribution, minus (y) the
amount in Cash per share the Company distributes to holders of the Common Stock.



The Initial Dividend Threshold is subject to adjustment in a manner inversely proportional to
adjustments to the Applicable Conversion Rate; provided that no adjustment will be made to the
Initial Dividend Threshold for any adjustment to the Applicable Conversion Rate under this Section
10.09.



If “the amount in Cash per share the Company distributes to holders of the Common Stock” is
equal to or greater than “the Closing Price of the Common Stock on the Trading Day immediately
preceding the Ex-Date for such dividend or distribution” (as each such phrase is used 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 Applicable Conversion Rate on the Record Date for such Cash dividend or
distribution. The adjustment to the Applicable Conversion Rate pursuant to this Section 10.09
shall become effective immediately after the Close of Business on the Record Date for such dividend
or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be
decreased to be the Conversion Rate that would then be in effect if such dividend or distribution
had not been declared.



Section 10.10. Adjustment for Tender Offer. If the Company or any of its Subsidiaries make a
payment in respect of a tender offer or exchange offer for the Common Stock, if the Cash and value
of any other consideration included in the payment per share of Common Stock exceeds the average of
the Closing Prices of the Common Stock over the ten consecutive Trading-Day period commencing on
the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to
such tender or exchange offer (such last date, the “Expiration Date”), then the Applicable
Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying
the Conversion Rate in effect immediately prior to the Close of Business on the last Trading Day of
the 10 consecutive Trading-Day period commencing on the Trading Day next succeeding the Expiration
Date by a fraction:



(i) the numerator of which shall be the sum of (x) the aggregate value of all Cash and any
other consideration (as determined by the Board of Directors) paid or payable for


 


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shares purchased in such tender or exchange offer, and (y) the product of the number of shares
of Common Stock outstanding immediately after the Expiration Date (after giving effect to such
tender offer or exchange offer), and the average of the Closing Prices of the Common Stock over the
10 consecutive Trading-Day period commencing on the Trading Day next succeeding the Expiration
Date; and




(ii) the denominator of which shall be the product of (x) the number of shares of Common Stock
outstanding immediately prior to the Expiration Date (prior to giving effect to such tender offer
or exchange offer), and (y) the average of the Closing Prices of the Common Stock over the 10
consecutive Trading-Day period commencing on the Trading Day next succeeding the Expiration Date.



An adjustment, if any, to the Conversion Rate pursuant to this Section 10.10 shall become
effective immediately after the Close of Business on the tenth Trading Day immediately following
the Expiration Date; provided that, for purposes of determining the Applicable Conversion Rate, in
respect of any conversion during the ten Trading Days following the Expiration Date, references
within this Section 10.10 to ten Trading Days shall be deemed replaced with such lesser number of
Trading Days as have elapsed between the Expiration Date and the relevant Conversion Date. In the
event that the Company or a Subsidiary of the Company is obligated to purchase shares of Common
Stock pursuant to any such tender offer or exchange offer, but the Company or such Subsidiary is
prevented by applicable law from effecting any such purchases, or all such purchases are rescinded,
then the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in
effect if such tender offer or exchange offer had not been made. If the application of this
Section 10.10 to any tender offer or exchange offer would result in a decrease in the Conversion
Rate, no adjustment shall be made for such tender offer or exchange offer under this Section 10.10.



Section 10.11. Provisions Governing Adjustment to Conversion Rate. Rights or warrants
distributed by the Company to all holders of Common Stock entitling the holders thereof to
subscribe for or purchase shares of the Company’s Capital Stock (either initially or under certain
circumstances), which rights, options or warrants, until the occurrence of a specified event or
events (“Trigger Event”): (i) are deemed to be transferred with such shares of Common Stock; (ii)
are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock,
shall be deemed not to have been distributed for purposes of Section 10.06, Section 10.07, Section
10.08, Section 10.09 or Section 10.10 (and no adjustment to the Conversion Rate under Section
10.06, Section 10.07, Section 10.08, Section 10.09 or Section 10.10 will be required) until the
occurrence of the earliest Trigger Event, whereupon such rights, options and warrants shall be
deemed to have been distributed and an appropriate adjustment (if any is required) to the
Conversion Rate shall be made under Section 10.08, and, if applicable, Section 10.23. If any such
right, option or warrant, including any such existing rights, options or warrants distributed
before 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-Date with respect to new rights, options or warrants with such
rights (and a termination or expiration of the existing rights, options or warrants


 


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without exercise by any of the holders thereof), except as set forth in Section 10.23. In
addition, except as set forth in Section 10.23, 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 preceding sentence) with respect thereto that was counted for purposes of
calculating a distribution amount for which an adjustment to the Conversion Rate under Section
10.06, Section 10.07, Section 10.08, Section 10.09 or Section 10.10 was made (including any
adjustment contemplated in Section 10.23), (1) in the case of any such rights, options or warrants
that shall all have been redeemed or repurchased without exercise by any holders thereof, the
Conversion Rate shall be readjusted upon such final repurchase to give effect to such distribution
or Trigger Event, as the case may be, as though it were a Cash distribution, equal to the per share
repurchase 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 repurchase, 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.




Section 10.12. Disposition Events. If any of the following events (a “Disposition Event”)
occurs:



(a) any recapitalization, reclassification or change of the shares of the Common Stock (other
than a change in par value, or from par value to no par value, or from no par value to par value,
or as a result of a subdivision or combination);



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



(c) sale or conveyance to another Person of all or substantially all of the assets of the
Company; or



(d) any statutory share exchange;.



in each case, as a result of which the Common Stock would be converted into, or exchanged for,
stock, other securities, other property or assets (including Cash or any combination thereof),
then, at and after the effective time of the Disposition Event, the right to convert each $1,000
principal amount of Notes will 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 Applicable Conversion Rate immediately prior to such Disposition Event would have
owned or been entitled to receive (the “Reference Property”) upon such Disposition Event.



If the Disposition 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), 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 the Common Stock that affirmatively make such an election. The Company shall notify Holders of
the weighted average as soon as practicable after


 


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such determination is made. The Company shall not to become a party to any such Disposition
Event unless its terms are consistent with the foregoing.




Upon the occurrence of a Disposition Event, the Company or the successor or purchasing Person,
as the case may be, shall execute with the Trustee a supplemental indenture (which shall comply
with the Trust Indenture Act as in force at the date of execution of such supplemental indenture if
such supplemental indenture is then required to so comply) permitted under Section 9.02(b)
providing for the conversion and settlement of the Notes as set forth in this Indenture. Such
supplemental indenture shall provide for adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 10. If, in the case of any Disposition
Event, the Reference Property includes shares of stock or other securities and assets of a Person
other than the successor or purchasing Person, as the case may be, in such reclassification,
consolidation, merger, combination, sale or conveyance, 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 repurchase rights set forth in Article 3 herein.



In the event the Company shall execute a supplemental indenture pursuant to this Section
10.12, 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 Property after any such Disposition 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 Noteholders. The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each Noteholder, at its address appearing on the 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.



Section 10.13. Adjustment to Conversion Rate Upon a Make-Whole Change in Control;
Discretionary Adjustment. (a) If, after the date hereof, a Change in Control as described in
clause (i) or (ii) of the definition of Change in Control occurs (determined after giving effect to
any exceptions or exclusions to such definition, but without regard to the proviso in clause (ii)
of the definition thereof, a “Make-Whole Change in Control”) and a Holder elects to convert its
Notes in connection with such Make-Whole Change in Control, the Company will, under certain
circumstances, increase the Applicable Conversion Rate for the Notes so surrendered for conversion
by a number of additional shares of Common Stock (the “Make-Whole Shares”), as described in this
Section 10.13. A conversion of Notes will be deemed for these purposes to be “in connection with”
a Make-Whole Change in Control if the notice of conversion of the Notes is received by the
Conversion Agent from, and including, the Effective Date of the Make-Whole Change in Control up to,
and including, the Business Day immediately before the related Repurchase Date (or, in the case of
a Make-Whole Change in Control that does not constitute a Change in Control, the 35th Business Day
immediately following the Effective Date of such Make-Whole Change in Control).


 


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The Company shall notify Holders of the anticipated Effective Date of any Make-Whole Change in
Control and issue a press release as soon as practicable after the Company first determines the
anticipated Effective Date of such Make-Whole Change in Control. In addition, on or before the
15th day after the occurrence of a Make-Whole Change in Control that does not also constitute a
Change in Control, the Company will deliver to the Trustee and to all Holders at their addresses
shown in the Register of the Registrar, and to beneficial owners as required by applicable law,
written notice indicating that a Make-Whole Change in Control has occurred.



(b) The number of Make-Whole Shares will be determined by reference to the table set forth on
Schedule A and is based on the date which such Make-Whole Change in Control transaction becomes
effective (the “Effective Date”) and the price paid per share of Common Stock in the Make-Whole
Change in Control (in the case of a Make-Whole Change in Control described in clause (ii) of the
definition of Change in Control in which holders of Common Stock receive only Cash), or in the case
of any other Make-Whole Change in Control, the average of the Closing Prices per share of Common
Stock over the five Trading-Day period ending on, and including, the Trading Day immediately
preceding the Effective Date of such Make-Whole Change in Control (the “Stock Price”).



(c) The Stock Prices set forth in the first row of the table set forth on Schedule A will be
adjusted as of any date on which the Applicable Conversion Rate is adjusted. The adjusted Stock
Prices will equal the Stock Prices immediately before such adjustment, multiplied by a fraction,
the numerator of which is the Applicable Conversion Rate immediately before the adjustment giving
rise to the Stock Price adjustment, and the denominator of which is the Applicable Conversion Rate
as so adjusted. In addition, the number of Make-Whole Shares will be subject to adjustment in the
same manner as the Applicable Conversion Rate as set forth in Section 10.06 through Section 10.10.



(d) If the exact Stock Price and Effective Date is not set forth in the table set forth on
Schedule A, then (i) if the Stock Price is between two Stock Prices in the table or the Effective
Date is between two Effective Dates in the table, the Make-Whole Shares issued upon conversion of
the Notes will be determined by a straight-line interpolation between the number of Make-Whole
Shares set forth for the higher and lower Stock Prices and/or the earlier and later Effective Dates
in the table, as applicable, based on a 365-day year, (ii) if the Stock Price is in excess of
$25.00 per share of Common Stock (subject to adjustment as set forth in Section 10.13(c)), no
Make-Whole Shares will be issued upon conversion of the Notes in connection with a Make-Whole
Change in Control, and (iii) if the Stock Price is less than $5.41 per share of Common Stock
(subject to adjustment as set forth in Section 10.13(c)), no Make-Whole Shares will be issued upon
conversion of the Notes in connection with a Make-Whole Change in Control.



(e) The Company may make such increases in the Conversion Rate, in addition to those required
by Section 10.06, 10.07, 10.08, 10.09 and 10.10 as the Board of Directors considers to be advisable
to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock
resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event
treated as such for income tax purposes.


 


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(f) To the extent permitted by applicable law, the Company from time to time may increase the
Conversion Rate by any amount for any period of time if the period is at least twenty (20) Business
Days, the increase is irrevocable during the period and the Board of Directors shall have made a
determination that such increase would be in the best interests of the Company, which determination
shall be conclusive. Whenever the Conversion Rate is increased pursuant to the preceding sentence,
the Company shall file with the Conversion Agent and mail to holders of record of the Notes a
notice of the increase at least fifteen (15) days before 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.



Section 10.14. When Adjustment May Be Deferred. No adjustment in the Conversion Rate need be
made unless the adjustment would require an increase or decrease of at least 1% of the Conversion
Rate. Any adjustments that are less than 1% of the Conversion Rate will be carried forward and
taken into account in determining any subsequent adjustment. In addition, the Company shall make
any carry forward adjustments not otherwise effected on each anniversary of the date hereof, upon
conversion of any Note (but only with respect to such converted Note), upon required repurchases of
the Notes pursuant to Section 3.01, and on the Trading Day immediately prior to the Maturity Date.



Section 10.15. When No Adjustment Required. (a) No adjustment need be made for a
transaction referred to in Section 10.06, 10.07, 10.08, 10.09 or 10.10 (other than a share split or
share combination) if Noteholders participate, without conversion, in the transaction or event that
would otherwise give rise to an adjustment pursuant to such Section at the same time as holders of
Common Stock participate with respect to such transaction or event and on the same terms as holders
of Common Stock participate with respect to such transaction or event as if Noteholders, at such
time, held a number of shares of Common Stock equal to the Applicable Conversion Rate, multiplied
by the principal amount (expressed in thousands) of Notes held by such Noteholder, without having
to convert their Notes.



(b) Adjustments to the Applicable Conversion Rate will be rounded to the nearest
ten-thousandth, with five one-hundred-thousandths rounded upward (e.g., 0.76545 would be rounded to
0.7655).



(c) No adjustment need to be made for 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.



(d) No adjustment need to be made for the issuance of any shares of Common Stock or restricted
stock units or options or rights (including shareholder appreciation rights) to purchase those
shares of Common Stock pursuant to any present or future employee, director or consultant benefit
plan or program of or assumed by us or any of our subsidiaries.


 


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(e) No adjustment need to be made for the issuance of any shares of Common Stock pursuant to
any option, warrant, right or exercisable, exchangeable or convertible security not described in
the clause (c) above and outstanding as of the date the Notes are first issued.



(f) No adjustment need be made for a change in the par value or no par value of Common Stock.



(g) No adjustment need be made for accrued but unpaid interest.



(h) Notwithstanding anything in this Article 10 to the contrary, the Applicable Conversion
Rate shall not exceed 184.8429 per $1,000 principal amount of Notes, other than on account of
adjustments to the Conversion Rate in the manner set forth in Sections 10.06, 10.07, 10.08, 10.09,
10.10, 10.13(e) and 10.13(f).



Section 10.16. Notice of Adjustment. Whenever the Conversion Rate is adjusted, the Company
shall promptly send to Noteholders a written notice of the adjustment. The Company shall file with
the Trustee and the Conversion Agent such notice and a certificate from the Company’s independent
public accountants briefly stating the facts requiring the adjustment and the manner of computing
it. The certificate shall be conclusive evidence that the adjustment is correct. Neither the
Trustee nor any Conversion Agent shall be under any duty or responsibility with respect to any such
certificate except to exhibit the same to any Holder desiring inspection thereof.



Section 10.17. Notice of Certain Transactions. If (a) the Company takes any action that
would require an adjustment in the Conversion Rate pursuant to Section 10.06, 10.07, 10.08, 10.09
or 10.10 (unless no adjustment is to occur pursuant to Section 10.14 or Section 10.15), (b) the
Company takes any action that would require a supplemental indenture pursuant to Section 10.12, or
(c) there is a liquidation or dissolution of the Company, then the Company shall send to
Noteholders and file with the Trustee and the Conversion Agent a written notice stating the
proposed Ex-Date for a dividend or distribution or the proposed effective date of a subdivision,
combination, reclassification, consolidation, merger, combination, sale or conveyance. The Company
shall file and send the notice at least 15 days before such proposed Ex-Date. Failure to file or
send the notice or any defect in it shall not affect the validity of the transaction.



Section 10.18. Right of Holders to Convert. Notwithstanding any other provision in this
Indenture, the Holder of any Note shall have the right to convert its Note in accordance with this
Article 10 and to bring an action for the enforcement of any such right to convert, and such rights
shall not be impaired or affected without the consent of such Holder.



Section 10.19. Company Determination Final. The Company shall be responsible for making all
calculations called for hereunder and under the Notes. The Company shall make all these
calculations using commercially reasonable means and, absent manifest error, the Company’s
calculations will be final and binding on Noteholders. The Company shall provide a schedule of the
Company’s calculations to the Trustee, and the Trustee is entitled to rely upon the accuracy of the
Company’s calculations without independent verification.


 


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Section 10.20. Trustee’s Adjustment Disclaimer. The Trustee has no duty to determine when an
adjustment under this Article 10 should be made, how it should be made or what it should be. The
Trustee has no duty to determine whether a supplemental indenture under Section 10.12 need be
entered into or whether any provisions of any supplemental indenture are correct but may accept 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. The Trustee shall
not be accountable for and makes no representation as to the validity or value (or the kind or
amount) of any securities or assets issued upon conversion of Notes. The Trustee shall not be
responsible for the Company’s failure to comply with this Article 10. Each Conversion Agent shall
have the same protection under this Section 10.20 as the Trustee.



Section 10.21. Simultaneous Adjustments. For purposes of Section 10.08, Section 10.06 and
Section 10.07, any dividend or distribution to which Section 10.08 is applicable that also includes
shares of Common Stock, or rights, options or warrants to subscribe for or purchase shares of
Common Stock (or both), shall be deemed instead to be (1) a dividend or distribution of the debt
securities, assets or shares of Capital Stock other than such shares of Common Stock or rights (and
any Conversion Rate adjustment required by Section 10.08 with respect to such dividend or
distribution shall then be made) immediately followed by (2) a dividend or distribution of such
shares of Common Stock or such rights (and any further Conversion Rate adjustment required by
Section 10.06 and Section 10.07 with respect to such dividend or distribution shall then be made),
except any shares of Common Stock included in such dividend or distribution shall not be deemed
“outstanding at the Close of Business on the Business Day immediately preceding such Ex-Date”
within the meaning of Section 10.06.



Section 10.22. Successive Adjustments. After an adjustment to the Conversion Rate under this
Article 10, any subsequent event requiring an adjustment under this Article 10 shall cause an
adjustment to the Conversion Rate as so adjusted.



Section 10.23. Rights Issued in Respect of Common Stock Issued Upon Conversion. Each share
of Common Stock issued upon conversion of Notes pursuant to this Article 10 shall be entitled to
receive the appropriate number of rights (“Rights”), if any, and the certificates representing
Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be
provided by the terms of any rights plan (i.e., a poison pill) adopted by the Company, as the same
may be amended form time to time, is in effect (in each case, a “Shareholders Rights Plan”). Upon
conversion of the Notes a Holder will receive, in addition to any Common Stock received in
connection with such conversion, the Rights under the Shareholders Rights Plan, unless before any
conversion, the Rights have separated from Common Stock, in which case the Applicable Conversion
Rate will be adjusted at the time of separation as if the Company distributed to all holders of
Common Stock, shares of Company Capital Stock, assets, debt securities or certain rights to
purchase securities of the Company as described in Section 10.08, subject to readjustment in the
event of the expiration or termination of such rights. Any distribution of Rights pursuant to the
Shareholders Rights Plan that would allow a Holder to receive upon conversion, in addition to
shares of Common Stock, the Rights


 


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described therein (unless such Rights have separated from Common Stock) shall not constitute a
distribution of Rights that would entitle the Holder to an adjustment to the Conversion Rate.




ARTICLE 11




PAYMENT OF INTEREST




Section 11.01. Interest Payments. Interest (including any Additional Interest) on any Note
that is payable, and is paid or duly provided for, on any applicable Interest Payment Date shall be
paid to the Person in whose name that Note is registered at the Close of Business on the Regular
Record Date for such interest at the office or agency of the Company maintained for such purpose.
Payments of interest in respect of the Notes represented by the Global Notes shall be made by wire
transfer of same-day funds to the Depositary for the purpose of permitting such party to credit the
payments received by it in respect of such Global Note to the accounts of the beneficial owners
thereof. With respect to Certificated Notes, (i) to holders holding Certificated Notes having an
aggregate principal amount of $1,000,000 or less, the Company shall make all payments of interest
by check drawn on a bank in the United States mailed to the payee at its address set forth on the
Registrar’s books and (ii) to Holders holding Certificated Notes having an aggregate principal
amount of more than $1,000,000, the Company shall make payments of interest in same-day funds by
transfer to an account maintained by the payee located inside the United States, if the Trustee
shall have received proper wire transfer instructions from such payee not later than the related
Regular Record Date or, if no such instructions have been received by check drawn on a bank in the
United States mailed to the payee at its address set forth on the Registrar’s books.



Section 11.02. Defaulted Interest. Any interest (including any Additional Interest) on any
Note that is payable, but is not punctually paid or duly provided for, within 30 days following any
applicable payment date (herein called “Defaulted Interest,” which term shall include any accrued
and unpaid interest (including any Additional Interest) that has accrued on such defaulted amount
in accordance with paragraph 1 of the Notes), shall forthwith cease to be payable to the registered
Holder thereof on the relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause
(a) or (b) below.



(a) The Company may elect to make payment of any Defaulted Interest to the persons in whose
names the Notes are registered at the Close of Business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the
date of the proposed payment (which shall not be less than 20 days after such notice is received by
the Trustee), and at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit on or before the date of the
proposed payment, such money when deposited to be held by the Trustee in trust for the benefit of
the persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such


 


-52-









 




Defaulted Interest which shall be not more than 20 days and not less than 15 days before the
date of the proposed payment and not less than ten days (or such shorter period as is acceptable to
the Trustee) after the receipt by the Trustee of the notice of the proposed payment (the “Special
Record Date”). The Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Notes at his address as it appears on the list of Noteholders maintained pursuant
to Section 2.05. Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the persons
in whose names the Notes are registered at the Close of Business on such Special Record Date and
shall no longer be payable pursuant to the following clause (b).




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



Section 11.03. Interest Rights Preserved. Subject to the foregoing provisions of this
Article 11 and Section 2.06, each Note delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, including any Additional Interest, and to accrue, which were carried by such other Notes.



ARTICLE 12




MISCELLANEOUS




Section 12.01. Noteholder Actions.



(a) Any act by the Holder of any Note shall bind that Holder and every subsequent Holder of a
Note that evidences the same debt as the Note of the acting Holder, even if no notation thereof
appears on the Note. Subject to paragraph (d), a Holder may revoke an act as to its Notes, but
only if the Trustee receives the notice of revocation before the date the amendment or waiver or
other consequence of the act becomes effective.



(b) The Company may, but is not obligated to, fix a record date for the purpose of determining
the Holders entitled to act with respect to any amendment or waiver or in any other regard, except
that during the continuance of an Event of Default, only the Trustee may set a record date as to
notices of Default, any declaration or acceleration or any other remedies or other consequences of
the Event of Default. If a record date is fixed, those Persons that were Holders at such record
date and only those Persons will be entitled to act, or to revoke any previous act, whether or not
those Persons continue to be Holders after the record date. No act will be valid or effective for
more than 90 days after the record date.


 


-53-









 





Section 12.02. Notices. (a) Any notice or communication to the Company will be deemed given
if in writing (i) when delivered in person or (ii) five days after mailing when mailed by first
class mail, or (iii) when sent by facsimile transmission, with transmission confirmed. Any notice
to the Trustee will be effective only upon receipt. In each case the notice or communication
should be addressed as follows:



if to the Company:



Technitrol, Inc.

1210 Northbrook Drive, Suite 470

Trevose, PA 19053

Attention: Drew A. Moyer, Chief Financial Officer

Tel: (215) 355-4093




with a copy to (which copy shall not constitute notice):



Drinker Biddle & Reath LLP

One Logan Square

18th and Cherry Streets

Philadelphia, PA 19103

Attention: Sam Mason

Tel: (215) 988-2642

Fax: (215) 988-2757




if to the Trustee:



Wells Fargo Bank, National Association

230 West Monroe Street, Suite 2900

Chicago, IL 60606

Attention: Corporate Trust Services

Tel: (312) 845-4385

Fax: (312) 726-2158




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



(b) Except as otherwise expressly provided with respect to published notices, any notice or
communication to a Holder will be deemed given when sent to the Holder at its address as it appears
on the Register by first class mail or, as to any Global Note registered in the name of the
Depository or its nominee, as agreed by the Company, the Trustee and the Depository. Copies of any
notice or communication to a Holder, if given by the Company, will be sent to the Trustee at the
same time. Any defect in sending a notice or communication to any particular Holder will not
affect its sufficiency with respect to other Holders.


 


-54-









 





(c) Where this Indenture provides for notice, the notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and the waiver will be
the equivalent of the notice. Waivers of notice by Holders must be filed with the Trustee, but
such filing is not a condition precedent to the validity of any action taken in reliance upon such
waivers.



Section 12.03. Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:



(a) an Officers’ Certificate (which must include the statements set forth in Section 12.04)
stating that, in the opinion of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have been complied with; and



(b) an Opinion of Counsel (which must include the statements set forth in Section 12.04)
stating that, in the opinion of such counsel, all such conditions precedent and covenants have been
complied with.



Notwithstanding the foregoing, no such Opinion of Counsel shall be required with respect to
the authentication and delivery of any Notes.



Section 12.04. Statements Required in Certificate or Opinion. Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture (other than
a certificate provided pursuant to Section 314(a)(4) of the Trust Indenture Act) must comply with
the provisions of Section 314(e) of the Trust Indenture Act and must include:



(1) a statement that each person signing the certificate or opinion has read the covenant or
condition and the related definitions;



(2) a brief statement as to the nature and scope of the examination or investigation upon
which the statement or opinion contained in the certificate or opinion is based;



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



(4) a statement as to whether or not, in the opinion of each such person, such condition or
covenant has been complied with, provided that an Opinion of Counsel may rely on an Officers’
Certificate or certificates of public officials with respect to matters of fact.



Section 12.05. Legal Holiday. A “Legal Holiday” is any day other than a Business Day. If
any specified date (including a date for giving notice) is a Legal Holiday, the action shall be
taken on the next succeeding day that is not a Legal Holiday, with the same force and effect as if
made on such specified date and no interest shall accrue with respect to any payment for the
intervening period.


 


-55-









 





Section 12.06. Rules by Trustee, Paying Agent, Conversion Agent and Registrar. The Trustee
may make reasonable rules for action by or a meeting of Noteholders. The Registrar, Conversion
Agent and the Paying Agent may make reasonable rules for their functions.



Section 12.07. Governing Law. THIS INDENTURE AND EACH NOTE SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.



Section 12.08. No Adverse Interpretation of Other Agreements. This Indenture may not be used
to interpret another indenture or loan or debt agreement of the Company or any Subsidiary of the
Company, and no such indenture or loan or debt agreement may be used to interpret this Indenture.



Section 12.09. Successors. All agreements of the Company in this Indenture and the Notes
will bind its successors. All agreements of the Trustee in this Indenture will bind its successor.



Section 12.10. Counterparts. The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the same agreement.



Section 12.11. Severability. In case any provision in this Indenture or in the Notes is
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.



Section 12.12. Table of Contents and Headings. The Table of Contents, Cross-Reference Table
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 of this Indenture and in no way modify or restrict
any of the terms and provisions of this Indenture.



Section 12.13. No Liability of Directors, Officers, Employees, Incorporators, Members and
Stockholders. No director, officer, employee, incorporator, member or stockholder of the Company,
as such, will have any liability for any obligations of the Company under the Notes or this
Indenture or for any claim based on, in respect of, or by reason of, such obligations. Each Holder
of Notes by accepting a Note waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Notes.



[Remainder of page intentionally left blank]







 


-56- 









 







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



	 	 	 	 	 
	 	TECHNITROL, INC., as Issuer

 	 
	 	By:  	/s/ Drew A. Moyer
 	 
	 	 	Name:  	Drew A. Moyer 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

 	 
	 	By:  	/s/ Gregory S. Clarke
 	 
	 	 	Name:  	Gregory S. Clarke 	 
	 	 	Title:  	Vice President 	 



[Signature Page to Indenture]






 


 









 







EXHIBIT A




[FACE OF NOTE]





THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER: (1) REPRESENTS THAT IT
AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT
TO EACH SUCH ACCOUNT, AND (2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL,
PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN BEFORE THE DATE THAT
IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF
TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT: (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, OR (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER
THE SECURITIES ACT, OR (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER
THE SECURITIES ACT, OR (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. BEFORE THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE
COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS,
CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE
PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.


 


A-1









 





Technitrol, Inc.




7.00% Convertible Senior Note due 2014




No. [ __ ]



CUSIP [
 _____ 

]



ISIN [
 _____ 

]



ISSUE DATE: December 22, 2009



Technitrol, Inc., a Pennsylvania corporation (the “Company,” which term includes any successor
under the Indenture hereinafter referred to), for value received, promises to pay to [Cede & Co. or
its registered assigns] *, the principal sum of [
 _____ 

] Dollars ($_____) [(which principal amount may from time to time be increased or decreased to such other principal
amounts (which, taken together with the principal amounts of all other outstanding Notes, shall not
exceed $50,000,000) by adjustments made by the Trustee as set forth on Schedule I
hereto)]* on December 22, 2009.



Initial Interest Rate: 7.00% per annum.



Interest Payment Dates: June 15 and December 15, commencing June 15, 2010.



Regular Record Dates: June 1 and December 1.



Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which will for all purposes have the same effect as if set forth at this place.



 






	 	 	 
	*	 	This schedule should be included only if the Note is a
Global Note.
	 
	*	 	This schedule should be included only if the Note is a
Global Note.



 


A-2









 









IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by
its duly authorized officer as of the Issue Date set forth above.



	 	 	 	 	 
	 	TECHNITROL, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	Drew A. Moyer 	 
	 	 	Title:  	Chief Financial Officer 	 
	 




 


A-3









 








The undersigned certifies that this is one of the 7.00% Convertible Senior Notes due 2014
described in the Indenture referred to in this Note.



	 	 	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Gregory S. Clarke	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Date:
	 	December 22, 2009	 	 






 


A-4









 





[REVERSE SIDE OF NOTE]




Technitrol, Inc.




7.00% Convertible Senior Note due 2014




1. Principal and Interest.



The Company promises to pay the principal of this Note on December 15, 2014.



The Company promises to pay interest on the principal amount of this Note on each Interest
Payment Date, as set forth on the face of this Note, at the rate of 7.00% per annum.



Interest will be payable semiannually (to the holders of record of the Notes at the Close of
Business on the June 1 or December 1 immediately preceding the interest payment date) on each
Interest Payment Date, commencing June 15, 2010.



Interest on this Note will accrue from the most recent date to which interest has been paid or
provided for on this Note or the Note surrendered in exchange for this Note or, if no interest has
been paid, from December 22, 2009, through the day before each Interest Payment Date. Interest
will be computed in the basis of a 360-day year of twelve 30-day months.



If the Company is required to pay Special Interest pursuant to Section 4.06 of the Indenture
or elects to pay Reporting Payments pursuant to Section 6.15 of the Indenture referred to below,
the Company will pay any such Additional Interest on the date or dates described in such Indenture.



Defaulted Interest may be paid to the Persons that are Holders on a Special Record Date, which
will established as set forth in the Indenture.



2. Method of Payment.



Subject to the terms and conditions of the Indenture, the Company shall pay interest
(including any Additional Interest) on this Note to the person who is the Holder of this Note at
the Close of Business on the Regular Record Date next preceding the related Interest Payment Date.
The Company shall pay any Cash amounts in money of the United States that at the time of payment is
legal tender for payment of public and private debts.



3. Paying Agent, Conversion Agent and Registrar.



Initially, the Trustee shall act as Paying Agent, Conversion Agent and Registrar. The Company
may appoint and change any Paying Agent, Conversion Agent, Registrar or co-registrar without
notice, other than notice to the Trustee. The Company or any of its Subsidiaries or any of their
Affiliates may act as Paying Agent, Conversion Agent, Registrar or co-registrar. The Company may
maintain deposit accounts and conduct other banking transactions with the Trustee in the normal
course of business.


 


A-5









 





4. Indenture.



This is one of the Notes issued under an Indenture dated as of December 22, 2009 (as may be
amended from time to time, the “Indenture”), between the Company and Wells Fargo Bank, National
Association, as Trustee. Capitalized terms used herein are used as defined in the Indenture unless
otherwise indicated. The terms of the Notes include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act. The Notes are subject to all such
terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of all
such terms. To the extent permitted by applicable law, in the event of any inconsistency between
the terms of this Note and the terms of the Indenture, the terms of the Indenture will control.
The Notes are general unsecured obligations of the Company.



5. Repurchase at the Option of the Holders upon a Fundamental Change.



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



6. Conversion.



Subject to the provisions of the Indenture, the Holder hereof has the right, at its option,
before the close of business on the Business Day immediately preceding the Maturity Date, to
convert this Note or portion thereof that is $1,000 or an integral multiple thereof, into Common
Stock at a Conversion Rate specified in the Indenture, as adjusted from time to time as provided in
the Indenture.



7. Defaults and Remedies.



Subject to certain exceptions, if an Event of Default, other than a Bankruptcy Default that
relates to the Company (and not solely with respect to Significant Subsidiary of the Company),
occurs and is continuing under the Indenture, the Trustee or the Holders of at least 25% in
aggregate of the outstanding principal amount of the Notes, by written notice to the Company (and
to the Trustee if the notice is given by the Holders), may, and the Trustee at the request of such
Holders may, declare the principal of and accrued interest (including any Additional Interest) on
the Notes to be immediately due and payable. Upon a declaration of acceleration, such principal
and interest (including any Additional Interest) shall become immediately due and payable. If a
Bankruptcy Default occurs, the principal of and accrued interest (including any Additional
Interest) on the Notes then outstanding will become immediately due and payable automatically
without any declaration or other act on the part of the Trustee or any Holder.



8. Amendment and Waiver.



Subject to certain exceptions set forth in the Indenture, the Indenture and the Notes may be
amended, or a default may be waived, with the consent of the Holders of a majority in


 


A-6









 




principal amount of the outstanding Notes. Without notice to or the consent of any Holder,
the Company and the Trustee may amend or supplement the Indenture or this Note to, among other
things, cure any ambiguity, omission, defect or inconsistency in the Indenture or this Note that
does not individually or in the aggregate have a material adverse effect on the rights of any
Holder of the Notes.




9. Registered Form; Denominations; Transfer; Exchange.



The Notes are issued in registered form without coupons in denominations of $1,000 principal
amount and integral multiples of $1,000. A Holder may register the transfer or exchange of Notes
in accordance with the Indenture. The Trustee may require a Holder to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees as set forth in the Indenture.
Pursuant to the Indenture, there are certain periods during which the Trustee will not be required
to issue, register the transfer of or exchange any Note or certain portions of a Note.



10. Persons Deemed Owners.



The registered Holder of this Note may be treated as the owner of this Note for all purposes.



11. Unclaimed Money or Notes.



Subject to applicable abandoned property law, the Trustee and each Paying Agent shall pay or
deliver, as the case may be, to the Company upon request any money, Common Stock or other
consideration held by them for the payment of the principal amount of (including the relevant
Repurchase Price) and interest (including any Additional Interest) on, or the Common Stock due in
connection with any conversion of, this Note that remains unclaimed for six months after a right to
such money, Common Stock or other consideration has matured.



12. Trustee Dealings with the Company.



The Trustee, in its individual or any other capacity, may become the owner or pledgee of this
Note and may otherwise deal with the Company or its Affiliates with the same rights it would have
if it were not the Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Trust Indenture Act Sections 310(b) and 311.



13. No Recourse Against Others.



No director, officer, employee, incorporator, member or stockholder of the Company, as such,
will have any liability for any obligations of the Company under this Note or the Indenture or for
any claim based on, in respect of, or by reason of, such obligations. Each Holder of this Note by
accepting this Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of this Note.


 


A-7









 





14. Authentication.



This Note shall not be valid until an authorized officer of the Trustee signs manually the
Trustee’s Certificate of Authentication on the other side of this Note.



15. Governing Law.



THE INDENTURE AND THE NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE
OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.



16. Abbreviations.



Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A/ (= Uniform Gifts to
Minors Act).



The Company will furnish a copy of the Indenture to any Holder upon written request and
without charge.




 


A-8











 




ATTACHMENT 1




Wells Fargo Bank, National Association

230 West Monroe Street, Suite 2900

Chicago, IL 60606

Attention: Corporate Trust Services

Tel: (312) 845-4385

Fax: (312) 726-2158




CONVERSION NOTICE




To convert this Note, check the box: o



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



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



 



(Insert assignee’s soc. sec. or tax I.D. no.)




 




 




 



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




and irrevocably appoint



 



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







 


A-9









 







	 	 	 
	 

	 	Your Signature:
	 
	 	 
	Date:
	 	 
	 

	 	 
	 

	 	(Sign exactly as your name appears on the other side
of this Note)
	*Signature guaranteed by:
	 	 
	 
	 	 
	By:
	 	 
	 
	 	 
	 


	 	 






	 	 	 
	Cc:

	 	Technitrol, Inc. — Attn: Legal Department, Fax Number:
 __________ 


	 

	 	[INSERT STOCK TRANSFER AGENT INFORMATION WITH FAX NUMBER.]





 





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



 


A-10









 









ATTACHMENT 2




[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]




To: Technitrol, Inc.



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



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



	 	 	 	 	 
	Dated:                    

	 	Signature(s)	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	 
	 	 	Social Security or Other Taxpayer
	 	 	Identification Number
	 
	 	 	 	 
	 	 	Principal amount to be repaid (if less than all): $                    
	 
	 	 	 	 
	 	 	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.






 


A-11









 





ATTACHMENT 3




[FORM OF TRANSFER NOTICE]




FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto



Insert Taxpayer Identification No.




 




 



Please print or typewrite name and address, including zip code of assignee




 



the within Note and all rights thereunder, hereby irrevocably constituting and appointing




 



attorney to transfer said Note on the books of the Company with full power of
substitution in the premises.




	 	 	 
	 

	 	Your Signature:
	 
	 	 
	Date:
	 	 
	 

	 	 
	 

	 	(Sign exactly as your name appears on the other side
of this Note)
	 
	 	 
	*Signature guaranteed by:
	 	 
	 
	 	 
	By:
	 	 
	 
	 	 
	 


	 	 





 





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



 


A-12









 









Schedule I*




No. [ __ ]




SCHEDULE OF EXCHANGES





The initial principal amount of this Global Note is $[
 _____ 

].



	 	 	 	 	 	 	 
	 	 	Principal Amount of this	 	Notation Explaining Change in	 	Authorized Signature of
	Date	 	Global Note	 	Principal Amount	 	Trustee
	 
	 	 
	 	 
	 	 





 





	 	 	 
	*	 	This schedule should be included only if the Note is a
Global Note.



 


A-13









 









EXHIBIT B




DTC LEGEND




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 A BENEFICIAL INTEREST HEREIN.



TRANSFERS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES
OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THE
INDENTURE.


 


B-1









 





SCHEDULE A




Table for Additional Shares




The following table sets forth the Stock Price and number of Make-Whole Shares of the Common
Stock to be added to the Conversion Rate per $1,000 principal amount of the Notes.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Effective Date	 	$5.41	 	 	$6.00	 	 	$7.00	 	 	$8.00	 	 	$9.00	 	 	$10.00	 	 	$12.50	 	 	$15.00	 	 	$17.50	 	 	$20.00	 	 	$25.00	 
	December 22, 2009
	 	 	28.1964	 	 	 	28.1964	 	 	 	28.1964	 	 	 	27.0548	 	 	 	21.2215	 	 	 	16.8835	 	 	 	9.9126	 	 	 	5.9656	 	 	 	3.5660	 	 	 	2.0452	 	 	 	0.4334	 
	December 15, 2010
	 	 	28.1964	 	 	 	28.1964	 	 	 	28.1964	 	 	 	25.0019	 	 	 	19.3152	 	 	 	15.1570	 	 	 	8.6354	 	 	 	5.0531	 	 	 	2.9261	 	 	 	1.6036	 	 	 	0.2453	 
	December 15, 2011
	 	 	28.1964	 	 	 	28.1964	 	 	 	28.1964	 	 	 	21.9648	 	 	 	16.5424	 	 	 	12.6882	 	 	 	6.8853	 	 	 	3.8560	 	 	 	2.1226	 	 	 	1.0748	 	 	 	0.0601	 
	December 15, 2012
	 	 	28.1964	 	 	 	28.1964	 	 	 	24.7495	 	 	 	17.2018	 	 	 	12.3061	 	 	 	9.0179	 	 	 	4.4651	 	 	 	2.3200	 	 	 	1.1690	 	 	 	0.4973	 	 	 	0.0000	 
	December 15, 2013
	 	 	28.1964	 	 	 	28.0357	 	 	 	15.9576	 	 	 	9.3139	 	 	 	5.6314	 	 	 	3.5572	 	 	 	1.3797	 	 	 	0.6384	 	 	 	0.2665	 	 	 	0.0296	 	 	 	0.0000	 
	December 15, 2014
	 	 	28.1964	 	 	 	10.0065	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000