EX-10.1



 






ENPRO INDUSTRIES, INC.




3.9375% Convertible Senior Debentures Due 2015




 





INDENTURE




Dated as of October 26, 2005




 





WACHOVIA BANK, NATIONAL ASSOCIATION




TRUSTEE




 






 









 








Cross-Reference
Table*




	 	 	 	 	 	 	 
	Trust Indenture Act Section	 	 	 	Indenture Section
	310
	 	(a)(1)	 	 	 	7.10
	 
	 	(a)(2)	 	 	 	N.A.
	 
	 	(a)(3)	 	 	 	N.A.
	 
	 	(a)(4)	 	 	 	N.A.
	 
	 	(a)(5)	 	 	 	N.A.
	 
	 	(b)	 	 	 	7.10
	 
	 	(c)	 	 	 	N.A.
	311
	 	(a)	 	 	 	7.11
	 
	 	(b)	 	 	 	7.11
	 
	 	(c)	 	 	 	N.A.
	312
	 	(a)	 	 	 	N.A.
	 
	 	(b)	 	 	 	11.03
	 
	 	(c)	 	 	 	11.03
	313
	 	(a)	 	 	 	7.06
	 
	 	(b)	 	 	 	7.06
	 
	 	(c)	 	 	 	N.A.
	 
	 	(d)	 	 	 	N.A.
	314
	 	(a)	 	 	 	4.02
	 
	 	(b)	 	 	 	N.A.
	 
	 	(c)	 	 	 	N.A.
	 
	 	(d)	 	 	 	N.A.
	 
	 	(e)	 	 	 	N.A.
	 
	 	(f)	 	 	 	N.A.
	315
	 	(a)	 	 	 	7.01(a)
	 
	 	(b)	 	 	 	7.05
	 
	 	(c)	 	 	 	N.A.
	 
	 	(d)	 	 	 	7.01(c)
	 
	 	(e)	 	 	 	6.11
	316
	 	(a)(1)(A)	 	 	 	6.05
	 
	 	(a)(1)(B)	 	 	 	6.04
	 
	 	(a)(2)	 	 	 	N.A.
	 
	 	(b)	 	 	 	N.A.
	 
	 	(c)	 	 	 	N.A.
	317
	 	(a)(1)	 	 	 	N.A.
	 
	 	(a)(2)	 	 	 	N.A.
	 
	 	(b)	 	 	 	N.A.
	318
	 	(a)	 	 	 	N.A.








 




			
	 	 	N.A. means not applicable.
	 
	*	 	This Cross-Reference Table is not part of the Indenture.




 









 










TABLE
OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1

Definitions and Incorporation
by Reference
	 	 	 	 
	 
	 	 	 	 
	Section 1.01.
Definitions
	 	 	1	 
	Section 1.02.
Other Definitions
	 	 	8	 
	Section 1.03.
Incorporation By Reference Of Trust Indenture Act
	 	 	9	 
	Section 1.04.
Rules of Construction
	 	 	9	 
	Section 1.05.
Acts of Holders
	 	 	9	 
	 
	 	 	 	 
	ARTICLE 2

The Securities
	 	 	 	 
	 
	 	 	 	 
	Section 2.01.
Form and Dating
	 	 	11	 
	Section 2.02.
Execution and Authentication
	 	 	12	 
	Section 2.03.
Registrar, Paying Agent and Conversion Agent
	 	 	12	 
	Section 2.04.
Paying Agent to Hold Money and Securities in Trust
	 	 	13	 
	Section 2.05.
Securityholder Lists
	 	 	13	 
	Section 2.06.
Transfer and Exchange
	 	 	13	 
	Section 2.07.
Replacement Securities
	 	 	15	 
	Section 2.08.
Outstanding Securities; Determinations of Holders’ Action
	 	 	16	 
	Section 2.09.
Temporary Securities
	 	 	16	 
	Section 2.10.
Cancellation
	 	 	17	 
	Section 2.11.
Persons Deemed Owners
	 	 	17	 
	Section 2.12.
Global Securities
	 	 	17	 
	Section 2.13.
CUSIP Numbers
	 	 	23	 
	 
	 	 	 	 
	ARTICLE 3

Repurchases upon a Change of
Control
	 	 	 	 
	 
	 	 	 	 
	Section 3.01.
Repurchase of Securities at Option of the Holder Upon a Change of Control
	 	 	23	 
	Section 3.02.
Effect of Change of Control Repurchase Notice
	 	 	26	 
	Section 3.03.
Deposit of Change of Control Repurchase Price
	 	 	27	 
	Section 3.04.
Securities Purchased in Part
	 	 	27	 
	Section 3.05.
Covenant to Comply with Securities Laws upon Purchase of Securities
	 	 	27	 
	Section 3.06.
Repayment to the Company
	 	 	28	 
	 
	 	 	 	 
	ARTICLE 4

Covenants
	 	 	 	 
	 
	 	 	 	 
	Section 4.01.
Payment of Securities
	 	 	28	 
	Section 4.02.
SEC and Other Reports
	 	 	28	 






 i 




 









 








	 	 	 	 	 
	Section 4.03.
Compliance Certificate
	 	 	29	 
	Section 4.04.
Further Instruments and Acts
	 	 	29	 
	Section 4.05.
Maintenance of Office or Agency
	 	 	29	 
	Section 4.06.
Delivery of Certain Information
	 	 	30	 
	Section 4.07.
Liquidated Damages Notice
	 	 	30	 
	 
	 	 	 	 
	ARTICLE 5
	 	 	 	 
	Successor
 Person
	 	 	 	 
	 
	 	 	 	 
	Section 5.01.
When Company May Merge or Transfer Assets
	 	 	30	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	Defaults
and Remedies
	 	 	 	 
	 
	 	 	 	 
	Section 6.01.
Events of Default
	 	 	31	 
	Section 6.02.
Acceleration
	 	 	33	 
	Section 6.03.
Other Remedies
	 	 	33	 
	Section 6.04.
Waiver of Past Defaults
	 	 	34	 
	Section 6.05.
Control by Majority
	 	 	34	 
	Section 6.06.
Limitation on Suits
	 	 	34	 
	Section 6.07.
Rights of Holders to Receive Payment
	 	 	35	 
	Section 6.08.
Collection Suit by Trustee
	 	 	35	 
	Section 6.09.
Trustee May File Proofs of Claim
	 	 	35	 
	Section 6.10.
Priorities
	 	 	36	 
	Section 6.11.
Undertaking for Costs
	 	 	36	 
	Section 6.12.
Waiver of Stay, Extension or Usury Laws
	 	 	37	 
	 
	 	 	 	 
	ARTICLE 7
	 	 	 	 
	Trustee
	 	 	 	 
	 
	 	 	 	 
	Section 7.01.
Duties of Trustee
	 	 	37	 
	Section 7.02.
Rights of Trustee
	 	 	38	 
	Section 7.03.
Individual Rights of Trustee
	 	 	40	 
	Section 7.04.
Trustee’s Disclaimer
	 	 	40	 
	Section 7.05.
Notice of Defaults
	 	 	40	 
	Section 7.06.
Reports by Trustee to Holders
	 	 	41	 
	Section 7.07.
Compensation and Indemnity
	 	 	41	 
	Section 7.08.
Replacement of Trustee
	 	 	42	 
	Section 7.09.
Successor Trustee by Merger
	 	 	43	 
	Section 7.10.
Eligibility; Disqualification
	 	 	43	 
	Section 7.11.
Preferential Collection of Claims Against Company
	 	 	43	 
	 
	 	 	 	 
	ARTICLE 8
	 	 	 	 
	Discharge
of Indenture
	 	 	 	 
	 
	 	 	 	 
	Section 8.01.
Discharge of Liability on Securities
	 	 	43	 
	Section 8.02.
Repayment to the Company
	 	 	44	 






ii




 









 








	 	 	 	 	 
	ARTICLE 9
	 	 	 	 
	Amendments
	 	 	 	 
	 
	 	 	 	 
	Section 9.01.
Without Consent of Holders
	 	 	44	 
	Section 9.02.
With Consent of Holders
	 	 	45	 
	Section 9.03.
Compliance With Trust Indenture Act
	 	 	47	 
	Section 9.04.
Revocation and Effect of Consents, Waivers and Actions
	 	 	47	 
	Section 9.05.
Notation on or Exchange of Securities
	 	 	47	 
	Section 9.06.
Trustee to Sign Supplemental Indentures
	 	 	47	 
	Section 9.07.
Effect of Supplemental Indentures
	 	 	47	 
	 
	 	 	 	 
	ARTICLE 10
	 	 	 	 
	Conversions
	 	 	 	 
	 
	 	 	 	 
	Section 10.01.
Conversion Privilege
	 	 	48	 
	Section 10.02.
Conversion
 Procedure; Conversion Rate
	 	 	53	 
	Section 10.03.
Payment Upon Conversion
	 	 	55	 
	Section 10.04.
Adjustment of Conversion Rate
	 	 	56	 
	Section 10.05.

Effect of Reclassification, Consolidation, Merger or Sale
	 	 	65	 
	Section 10.06. Taxes on Shares Issued
	 	 	66	 
	Section 10.07.
Reservation of Shares, Shares to Be Fully Paid; Compliance
with Governmental Requirements; Listing of Common Stock
	 	 	67	 
	Section 10.08.
Responsibility of Trustee
	 	 	67	 
	Section 10.09.

Notice to Holders Prior to Certain Actions
	 	 	68	 
	Section 10.10.
Shareholder Rights Plan
	 	 	69	 
	Section 10.11.
Unconditional Right of Holders to Convert
	 	 	69	 
	 
	 	 	 	 
	ARTICLE 11
	 	 	 	 
	Miscellaneous
	 	 	 	 
	 
	 	 	 	 
	Section 11.01.
Trust Indenture Act Controls
	 	 	69	 
	Section 11.02.
Notices
	 	 	69	 
	Section 11.03.
Communication by Holders with Other Holders
	 	 	70	 
	Section 11.04.
Certificate and Opinion as to Conditions Precedent
	 	 	70	 
	Section 11.05.
Statements Required in Certificate or Opinion
	 	 	71	 
	Section 11.06.
Separability Clause
	 	 	71	 
	Section 11.07.
Rules by Trustee, Paying Agent, Conversion Agent and Registrar
	 	 	71	 
	Section 11.08.
Legal Holidays
	 	 	71	 
	Section 11.09.
Governing Law
	 	 	71	 
	Section 11.10.
No Recourse Against Others
	 	 	72	 
	Section 11.11.
Successors
	 	 	72	 
	Section 11.12.
Multiple Originals
	 	 	72	 






	 	 	 
	EXHIBIT A

	 	Form of Global Security
	EXHIBIT B

	 	Form of Certificated Security
	EXHIBIT C

	 	Transfer Certificate






iii




 









 








	 	 	 
	EXHIBIT D

	 	Notice of Occurrence of Change of Control
	 	 	 
	SCHEDULE I

	 	Number of Additional Shares






iv




 









 








     INDENTURE dated as of October 26, 2005 between ENPRO INDUSTRIES, INC., a North Carolina
corporation (“Company”), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association
(“Trustee”).



     Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Company’s 3.9375% Convertible Senior Debentures Due 2015:



ARTICLE 1



Definitions and Incorporation by Reference




     Section 1.01. Definitions.



     “144A Global Security” means a permanent Global Security in the form of the Security attached
hereto as Exhibit A, and that is deposited with and registered in the name of the Depositary,
representing Securities sold in reliance on Rule 144A under the Securities Act.



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



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



     “Board of Directors” means either the board of directors of the Company or any duly authorized
committee of such board.



     “Board Resolution” means a resolution of the Board of Directors.



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



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



1









 





     “Certificated Securities” means Securities that are in the form of the Securities attached
hereto as Exhibit B.



     “Change of Control” the occurrence at such time after the original issuance of the Securities
when any of the following has occurred:



     (1) a “person” or “group” within the meaning of Section 13(d)(3) of the Exchange Act, other
than the Company, any Subsidiary or any employee benefit plans of the Company or any Subsidiary,
files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such
person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3
under the Exchange Act, of shares of Common Stock representing more than 50% of the voting power of
Common Stock entitled to vote generally in the election of directors; or



     (2) a consolidation, merger or binding share exchange, or any conveyance, transfer, sale,
lease or other disposition of all or substantially all of the Company’s properties and assets to
another person, other than:




	 	•	 	any transaction:
	 
	 	(i)	 	that does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of the Company’s Capital Stock; and
	 
	 	(ii)	 	pursuant to which holders of the Company’s Capital Stock immediately prior to
the transaction have the entitlement to exercise, directly or indirectly, 50% or more
of the total voting power of all shares of Capital Stock entitled to vote generally in
elections of directors of the continuing or surviving or successor person immediately
after giving effect to such issuance; or
	 
	 	•	 	any merger, share exchange, transfer of assets or similar transaction solely
for the purpose of changing the jurisdiction of incorporation of the Company and
resulting in a reclassification, conversion or exchange of outstanding shares of
Common Stock, if at all, solely into shares of Common Stock, ordinary shares or
American Depositary Shares of the surviving entity or a direct or indirect parent of
the surviving corporation; or
	 
	 	•	 	any consolidation or merger with or into any of the Subsidiaries, so long as
such merger or consolidation is not part of a plan or a series of transactions
designed to or having the effect of merging or consolidating with any other person.





     The term “person” includes any syndicate or group that would be deemed to be a “person” under
Section 13(d)(3) of the Exchange Act.



2









 





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



     “Closing Price” means, with respect to any security on any date, the closing sale price (or if
no closing sale price is reported, the average of the bid and asked prices or, if more than one in
either case, the average of the average bid and the average asked prices) on that date as reported
for composite transactions by the principal U.S. national or regional securities exchange on which
such security is traded, or if such security is not listed on a U.S. national or regional
securities exchange, as reported by the Nasdaq National Market. The Closing Price will be
determined without reference to after-hours or extended market trading. If the Common Stock is not
listed for trading on a U.S. national or regional securities exchange and not reported by the
Nasdaq National Market on the relevant date, the “Closing Price” will be the last quoted bid for
the Common Stock in the over-the-counter market on the relevant date as reported by the National
Quotation Bureau Incorporated or similar organization. If the Common Stock is not so quoted, the
“Closing Price” will be the average of the midpoint of the last bid and ask prices for the Common
Stock on the relevant date from each of at least three nationally recognized independent investment
banking firms selected by the Company for this purpose (or if prices are not available from three
such firms, from two such firms or, if prices are not available from two such firms, from one such
firm).



     “Common Stock” means the common stock, $0.01 par value per share, of the Company existing on
the date of this Indenture or any other shares of Capital Stock of the Company into which such
Common Stock shall be reclassified or changed, including, subject to Section 10.05 below, in the
event of a merger, consolidation or other similar transaction involving the Company that is
otherwise permitted hereunder in which the Company is not the surviving Person, the common stock of
such surviving corporation.



     “Company” means the party named as the “Company” in the preamble of this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter,
shall mean such successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.



     “Company Notice” means a notice to Holders delivered pursuant to Section 3.01.



     “Company Request” or “Company Order” means a written request or order signed in the name of
the Company by any Officer.



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



     “Conversion Settlement Date” means (A) with respect to the Conversion Settlement Distribution
(other than any Additional Shares which may be issuable pursuant to Section 10.01(c)), the third
Business Day immediately following the Cash Settlement Period, and (B) with respect to any
Additional Shares which may



3









 




be issuable, the later of (i) the fifth Business Day following the effective date of any
Change of Control transaction and (2) the third Business Day immediately following the Cash
Settlement Period.




     “Corporate Trust Office” means the designated office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the date hereof is located at 401
S. Tryon Street, 12th Floor, Charlotte, NC 28288-1179, Attention: Corporate Trust
Services, or such other address as the Trustee may designate from time to time by notice to the
Holders and the Company, or the principal corporate trust office of any successor Trustee (or such
other address as a successor Trustee may designate from time to time by notice to the Holders and
the Company).



     “Current Market Price” of the Common Stock on any day means the average of the Closing Price
per share of the Common Stock for each of the ten consecutive Trading Days ending on the earlier of
the day in question and the day before the Ex-Dividend Date with respect to the issuance or
distribution requiring such computation.



     “Designated Subsidiary” shall mean any existing or future, direct or indirect, Subsidiary of
the Company whose assets constitute 15% or more of the total assets of the Company on a
consolidated basis.



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



     “Ex-Dividend Date” is the first date upon which a sale of the Common Stock, regular way on the
relevant exchange or in the relevant market for the Common Stock, does not automatically transfer
the right to receive the relevant dividend or distribution from the seller of the Common Stock to
its buyer.



     “Fair Market Value”, or “fair market value” shall mean the amount which a willing buyer would
pay a willing seller in an arm’s-length transaction.



     “Global Securities” means Securities that are in the form of the Securities attached hereto as
Exhibit A, and that are registered in the register of Securities in the name of a Depositary or a
nominee thereof, and to the extent that such Securities are required to bear the Legend required by
Section 2.06(f), such Securities will be in the form of a 144A Global Security.



     “Holder” or “Securityholder” means a person in whose name a Security is registered on the
Registrar’s books.



     “Indenture” means this Indenture, as amended or supplemented from time to time in accordance
with the terms hereof, including the provisions of the TIA that are deemed to be a part hereof.



4









 





     “Interest” means interest payable on each Security pursuant to Section 1 of the Securities.



     “Interest Payment Date” means April 15 and October 15 of each year, commencing April 15, 2006.



     “Interest Record Date” means April 1 and October 1 of each year.



     “Issue Date” of any Security means the date on which the Security was originally issued or
deemed issued as set forth on the face of the Security.



     “Liquidated Damages” means the amount that is payable by the Company pursuant to the
Registration Rights Agreement upon a Registration Default (as defined in such agreement).



     “NYSE” means The New York Stock Exchange, Inc.



     “Officer” means the Chief Executive Officer, the Chief Financial Officer, the President, any
Executive Vice President, the Treasurer, the Controller, the Chief Accounting Officer, the
Secretary or any Assistant Secretary of the Company.



     “Officer’s Certificate” means a written certificate containing the information specified in
Sections 11.04 and 11.05, signed in the name of the Company by any Officer, and delivered to the
Trustee. An Officer’s Certificate given pursuant to Section 4.03 shall be signed by an authorized
financial or accounting Officer of the Company but need not contain the information specified in
Sections 11.04 and 11.05.



     “Opinion of Counsel” means a written opinion containing the information specified in Sections
11.04 and 11.05, from legal counsel. The counsel may be an employee of, or counsel to, the Company.



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



     “Purchase Agreement” means the Purchase Agreement dated October 21, 2005 between the Company,
on the one hand, and Banc of America Securities LLC, as representative of the initial purchasers,
on the other.



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



5









 





     “Registration Rights Agreement” means the Registration Rights Agreement, dated the date
hereof, between the Company, on the one hand, and Banc of America Securities LLC, as representative
of the initial purchasers under the Purchase Agreement, on the other.



     “Responsible Officer” means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee or any other officer associated with the corporate trust
department of the Trustee who customarily performs functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any corporate trust matter
is referred because of such person’s knowledge of and familiarity with the particular subject and
who shall have direct responsibility for the administration of this Indenture.



     “Restricted Security” means a Security required to bear the Legend.



     “Rights Agreement” means the Rights Agreement, dated May 31, 2002, between the Company and
Wachovia Bank, National Association, as successor Rights Agent, as it may be amended from time to
time.



     “Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may
be amended from time to time.



     “SEC” means the Securities and Exchange Commission.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Security” means any of the Company’s 3.9375% Convertible Senior Debentures Due 2015, as
amended or supplemented from time to time, issued under this Indenture.



     “Stated Maturity”, when used with respect to any Security, means October 15, 2015.



     “Stock Price” means the price per share of Common Stock paid in connection with a Change of
Control transaction pursuant to which Additional Shares are issuable as set forth in Section
10.01(c) hereof, which shall be equal to (i) if holders of Common Stock receive only cash in such
Change of Control transaction, the cash amount paid per share of Common Stock and (ii) in all other
cases, the average of the Closing Prices of the Common Stock on the five Trading Days prior to, but
not including, the effective date of such Change of Control transaction.



     “Subsidiary” means any person of which at least a majority of the outstanding Voting Stock
shall at the time directly or indirectly be owned or controlled by the Company or by one or more
Subsidiaries or by the Company and one or more Subsidiaries.



6









 





     “TIA” means the Trust Indenture Act of 1939 as in effect on the date of this Indenture,
provided, however, that in the event the TIA is amended after such date, TIA means, to the extent
required by any such amendment, the TIA as so amended.



     “Trading Day” means a day during which trading in securities generally occurs on the NYSE or,
if the Common Stock is not listed on the NYSE, on the principal U.S. national or regional
securities exchange on which the Common Stock is then listed or, if the Common Stock is not listed
on a U.S. national or regional securities exchange and is not reported by the NYSE, on the
principal other market on which the Common Stock is then traded or quoted.



     “Trading Price” of the Securities on any date of determination means the average of the
secondary market bid quotations per $1,000 principal amount of the Securities obtained by the
Trustee for $5,000,000 original principal amount of the Securities at approximately 3:30 p.m., New
York City time, on such determination date from three independent nationally recognized securities
dealers the Company selects, provided that if three such bids cannot reasonably be obtained by the
Trustee, but two such bids are obtained, then the average of the two bids shall be used, and if
only one such bid can reasonably be obtained by the Trustee, that one bid shall be used. If the
Trustee cannot reasonably obtain at least one bid for $5,000,000 original principal amount of the
Securities from a nationally recognized securities dealer, or in the Company’s reasonable judgment
(which will be exercised, if at all, in the Company’s sole discretion), the bid quotations are not
indicative of the secondary market value of $1,000 original principal amount of the Securities,
then for purposes of any determination of whether the condition to conversion of Securities set
forth in Section 10.01(a)(2) is satisfied, the Trading Price per $1,000 principal amount of
Securities will be deemed to be less than 98% of the product of (i) the Closing Price of the Common
Stock and (ii) the applicable Conversion Rate.



     “Trustee” means the party named as the “Trustee” in the preamble of this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter,
shall mean such successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.



     “Voting Stock” of a Person means Capital Stock of such Person of the class or classes pursuant
to which the holders thereof have the general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of such Person (irrespective of
whether or not at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).



7









 




Section 1.02. Other Definitions.




	 	 	 
	 	 	Defined in
	Terms:	 	Section:
	“Act”
	 	1.05 
	“Accepted Purchased Shares”
	 	10.04(g) 
	“Additional Shares
	 	10.01(c) 
	“Adjustment Event”
	 	10.04(k) 
	“Agent Members”
	 	2.12(e) 
	“Cash Amount”
	 	10.03(a) 
	“Cash Settlement Period”
	 	10.03(a) 
	“Change of Control Repurchase Date”
	 	3.01(a) 
	“Change of Control Repurchase Notice”
	 	3.01(c) 
	“Change of Control Repurchase Price”
	 	3.01(a) 
	“Company Notice”
	 	3.01(a) 
	“Conversion Agent”
	 	2.03 
	“Conversion Date”
	 	10.02(c) 
	“Conversion Notice”
	 	10.02(b) 
	“Conversion Obligation”
	 	10.01(a) 
	“Conversion Rate”
	 	10.02(a) 
	“Conversion Value”
	 	10.03(a) 
	“Conversion Settlement Distribution”
	 	10.03(a) 
	“Depositary”
	 	2.01(b) 
	“Determination Date”
	 	10.04(k) 
	“Distributed Assets”
	 	10.04(d) 
	“DTC”
	 	2.01(b) 
	“effective date”
	 	10.01(c) 
	“Event of Default”
	 	6.01 
	“Expiration Time”
	 	10.04(f) 
	“Extraordinary Cash Dividend”
	 	10.04(e) 
	“Fiscal Quarter”
	 	10.01(a) 
	“Legal Holiday”
	 	11.08 
	“Legend”
	 	2.06(f) 
	“Liquidated Damages Notice”
	 	4.07 
	“Measurement Period”
	 	10.01(a) 
	“Non-Electing Share”
	 	10.05(b) 
	“Notice of Default”
	 	6.01 
	“Offer Expiration Time”
	 	10.04(g) 
	“Paying Agent”
	 	2.03 
	“Public Acquirer Change of Control
	 	10.01(d) 
	“Public Acquirer Common Stock”
	 	10.01(d) 
	“Purchased Shares”
	 	10.04(f) 
	“QIB”
	 	2.01(b) 
	“Reference Property”
	 	10.01(b) 






8









 






	 	 	 
	 	 	Defined in
	Terms:	 	Section:
	“Registrar”
	 	2.03
	“Rule 144A Information”
	 	4.06
	“Trigger Event”
	 	10.04(d)






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



     “Commission” means the SEC.



     “indenture securities” means the Securities.



     “indenture security holder” means a Securityholder.



     “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 TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rules have the meanings assigned to them by such
definitions.



     Section 1.04. Rules of Construction. Unless the context otherwise requires:




	 	(1)	 	a term has the meaning assigned to it;
	 
	 	(2)	 	an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles as
in effect from time to time;
	 
	 	(3)	 	“or” is not exclusive;
	 
	 	(4)	 	“including” means including, without limitation; and
	 
	 	(5)	 	words in the singular include the plural, and words in the
plural include the singular.





     Section 1.05. Acts of Holders. (a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments



9









 




are delivered to the Trustee and, where it is hereby expressly required, to the Company, as
described in Section 11.02. 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 shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee
and the Company, if made in substantially the manner provided in this Section.




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



     (c) The principal amount and serial number of any Security and the ownership of Securities
shall be proved by the register for the Securities.



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



     (e) If the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to
a Board Resolution, fix in advance a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of
outstanding Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that purpose the
outstanding Securities shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.



10









 





ARTICLE 2



The Securities




     Section 2.01. Form and Dating. (a) The Securities and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibits A and B, which are a part of this
Indenture. The Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage (provided that any such notation, legend or endorsement required by usage is
in a form acceptable to the Company). The Company shall provide any such notations, legends or
endorsements to the Trustee in writing. Each Security shall be dated the date of its
authentication.



     (b) 144A Global Securities. Securities offered and sold within the United States to qualified
institutional buyers as defined in Rule 144A (“QIBs”) in reliance on Rule 144A shall be issued,
initially in the form of a 144A Global Security, which shall be deposited with the Trustee at its
Corporate Trust Office, as custodian for the Depositary (as defined below) and registered in the
name of The Depository Trust Company (“DTC”) or the nominee thereof (DTC, or any successor thereto,
and any such nominee being hereinafter referred to as the “Depositary”), duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount
of the 144A Global Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary as hereinafter provided.



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



     Any adjustment of the aggregate principal amount of a Global Security to reflect the amount of
any increase or decrease in the amount of outstanding Securities represented thereby shall be made
by the Trustee in accordance with instructions given by the Holder thereof as required by Section
2.12 hereof and shall be made on the records of the Trustee and the Depositary.



     (d) Book-Entry Provisions. This Section 2.01(d) shall apply only to Global Securities
deposited with or on behalf of the Depositary.



     The Company shall execute and the Trustee shall, in accordance with this Section 2.01(d),
authenticate and deliver initially one or more Global Securities that (a) shall be registered in
the name of the Depositary, (b) shall be delivered by the Trustee to the Depositary or held by the
Trustee pursuant to the Depositary’s instructions and (c) shall be substantially in the form of
Exhibit A attached hereto.



11









 





     (e) Certificated Securities. Securities not issued as interests in the Global Securities will
be issued in certificated form substantially in the form of Exhibit B attached hereto.



     Section 2.02. Execution and Authentication. The Securities shall be executed on behalf of
the Company by two Officers. The signature of two Officers on the Securities may be manual or
facsimile.



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



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



     The Trustee shall authenticate and deliver the Securities for original issue in an aggregate
principal amount of up to $172,500,000 aggregate principal amount upon one or more Company Orders
without any further action by the Company (other than as contemplated in Section 11.04 and Section
11.05 hereof). The aggregate principal amount of the Securities due at the Stated Maturity thereof
outstanding at any time may not exceed the amount set forth in the foregoing sentence.



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



     Section 2.03. Registrar, Paying Agent and Conversion Agent. The Company shall maintain an
office or agency where Securities may be presented for registration of transfer or for exchange
(“Registrar”), an office or agency where Securities may be presented for purchase or payment
(“Paying Agent”) and an office or agency where Securities may be presented for conversion
(“Conversion Agent”). The Registrar shall keep a register of the Securities and of their transfer
and exchange. The Company may have one or more co-registrars, one or more additional Paying Agents
and one or more additional Conversion Agents. The term Paying Agent includes any additional Paying
Agent, including any named pursuant to Section 4.05. The term Conversion Agent includes any
additional Conversion Agent, including any named pursuant to Section 4.05.



     The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent,
Conversion Agent, or co-registrar (in each case, if such



12









 




Registrar, agent or co-registrar is a Person other than the Trustee). The 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 such agent. If the Company fails to maintain a Registrar,
Paying Agent or Conversion Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07. The Company or any Subsidiary or an
Affiliate of either of them may act as Paying Agent, Registrar, Conversion Agent or co-registrar.




     The Company initially appoints the Trustee as Registrar, Conversion Agent and Paying Agent in
connection with the Securities.



     Section 2.04. Paying Agent to Hold Money and Securities in Trust. Except as otherwise
provided herein, on or prior to each due date of payments in respect of any Security, the Company
shall deposit with the Paying Agent a sum of money (in immediately available funds if deposited on
the due date) or shares of Common Stock sufficient to make such payments when so becoming due. The
Company shall require each Paying Agent (other than the Trustee) to agree in writing that the
Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee all money and
shares of Common Stock held by the Paying Agent for the making of payments in respect of the
Securities and shall notify the Trustee of any default by the Company in making any such payment.
At any time during the continuance of any such default, the Paying Agent shall, upon the written
request of the Trustee, forthwith pay to the Trustee all money and shares of Common Stock so held
in trust. If the Company, a Subsidiary or an Affiliate of either of them acts as Paying Agent, it
shall segregate the money and shares of Common Stock held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent to pay all money and
shares of Common Stock held by it to the Trustee and to account for any funds and Common Stock
disbursed by it. Upon doing so, the Paying Agent shall have no further liability for the money or
shares of Common Stock.



     Section 2.05. Securityholder Lists. The Trustee shall preserve the most recent list
available to it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall cause to be furnished to the Trustee at least semiannually on March 31
and September 30 a listing of Securityholders dated within 15 days of the date on which the list is
furnished 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 Securityholders.



     Section 2.06. Transfer and Exchange. (a) Subject to Section 2.12 hereof, upon surrender for
registration of transfer of any Security, together with a written instrument of transfer
satisfactory to the Registrar duly executed by the Securityholder or such Securityholder’s attorney
duly authorized in writing, at the office or agency of the Company designated as Registrar or
co-registrar pursuant to Section 2.03, the Company shall execute, and the Trustee shall
authenticate and



13









 




deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized denomination or denominations, of a like aggregate principal
amount. The Company shall not charge a service charge for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to pay all taxes, assessments or
other governmental charges that may be imposed in connection with the transfer or exchange of the
Securities from the Securityholder requesting such transfer or exchange.




     At the option of the Holder, Securities may be exchanged for other Securities of any
authorized denomination or denominations, of a like aggregate principal amount upon surrender of
the Securities to be exchanged, together with a written instrument of transfer satisfactory to the
Registrar duly executed by the Securityholder or such Securityholder’s attorney duly authorized in
writing, at such office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.



     The Company shall not be required to make, and the Registrar need not register, transfers or
exchanges of any Securities in respect of which a Change of Control Repurchase Notice has been
given and not withdrawn by the Holder thereof in accordance with the terms of this Indenture
(except, in the case of Securities to be purchased in part, the portion thereof not to be
purchased).



     (b) Notwithstanding any provision to the contrary herein, so long as a Global Security remains
outstanding and is held by or on behalf of the Depositary, transfers of a Global Security, in whole
or in part, shall be made only in accordance with Section 2.12 and this Section 2.06(b). Transfers
of a Global Security shall be limited to transfers of such Global Security in whole or in part, to
the Depositary, to nominees of the Depositary or to a successor of the Depositary or such
successor’s nominee.



     (c) Successive registrations and registrations of transfers and exchanges as aforesaid may be
made from time to time as desired, and each such registration shall be noted on the register for
the Securities.



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



     (e) No Registrar shall be required to make registrations of transfer or exchange of Securities
during any periods designated in the text of the Securities or in this Indenture as periods during
which such registration of transfers and exchanges need not be made.



     (f) If Securities are issued upon the transfer, exchange or replacement of Securities subject
to restrictions on transfer and bearing the legends set forth on the



14









 




forms of Security attached hereto as Exhibits A and B setting forth such restrictions (collectively, the “Legend”), or if a request is made to remove the Legend on a Security, the
Securities so issued shall bear the Legend, or the Legend shall not be removed, as the case may be,
unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall
include an opinion of counsel, as may be reasonably required by the Company and the Registrar and
the Trustee (if not the same Person as the Trustee), that neither the Legend nor the restrictions
on transfer set forth therein are required to ensure that transfers thereof comply with the
provisions of Rule 144A or Rule 144 under the Securities Act or that such Securities are not
“restricted” within the meaning of Rule 144 under the Securities Act. Upon (i) provision of such
satisfactory evidence, or (ii) notification by the Company to the Trustee and Registrar of the sale
of such Security pursuant to a registration statement that is effective at the time of such sale,
the Trustee, at the written direction of the Company, shall authenticate and deliver a Security
that does not bear the Legend. If the Legend is removed from the face of a Security and the
Security is subsequently held by the Company or an Affiliate of the Company, the Legend shall be
reinstated.




     Section 2.07. Replacement Securities. If (a) any mutilated Security is surrendered to the
Trustee, or (b) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the Company 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 or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its written request the Trustee shall authenticate
and deliver, in exchange for any such mutilated Security or in lieu of any such destroyed, lost or
stolen Security, a new Security of like tenor and principal amount, bearing a certificate number
not contemporaneously outstanding.



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



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



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



15









 





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



     Section 2.08. Outstanding Securities; Determinations of Holders’ Action. Securities
outstanding at any time are all the Securities authenticated by the Trustee except for those
cancelled by it, those paid pursuant to Section 2.07, those delivered to it for cancellation and
those described in this Section 2.08 as not outstanding. A Security does not cease to be
outstanding because the Company or an Affiliate thereof holds the Security; provided, however, that
in determining whether the Holders of the requisite principal amount of Securities have given or
concurred in any request, demand, authorization, direction, notice, consent, waiver, or other Act
hereunder, Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other act, only
Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Subject to the foregoing, only Securities outstanding at the time of such
determination shall be considered in any such determination (including, without limitation,
determinations pursuant to Article 6 and Article 9).



     If a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.



     If the Paying Agent holds, in accordance with this Indenture, on the Business Day immediately
following a Change of Control Repurchase Date, or on Stated Maturity, money or securities, if
permitted hereunder, sufficient to pay Securities payable on that date, then from and after such
Change of Control Repurchase Date or Stated Maturity, as the case may be, such Securities shall
cease to be outstanding and Interest and Liquidated Damages, if any, on such Securities shall cease
to accrue.



     If a Security is converted in accordance with Article 10, then from and after the time of
conversion on the date of conversion, such Security shall cease to be outstanding and Interest and
Liquidated Damages, if any, shall cease to accrue on such Security.



     Section 2.09. Temporary Securities. Pending the preparation of definitive Securities, the
Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions and



16









 




other variations
as the Officers executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.




     If temporary Securities are issued, the Company will cause definitive Securities to be
prepared without unreasonable delay. After the preparation of definitive Securities, the temporary
Securities shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose pursuant to Section
2.03, without charge to the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of authorized denominations. Until so
exchanged the temporary Securities shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities.



     Section 2.10. Cancellation. All Securities surrendered for payment, purchase by the Company
pursuant to Article 3, conversion or registration of transfer or exchange shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. The Company may at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever,
and all Securities so delivered shall be promptly cancelled by the Trustee. The Company may not
issue new Securities to replace Securities it has paid or delivered to the Trustee for cancellation
or that any Holder has converted pursuant to Article 10. No Securities shall be authenticated in
lieu of or in exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of by the Trustee in accordance with the Trustee’s customary procedure.



     Section 2.11. Persons Deemed Owners. Prior to due presentment of a Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security for the purpose of
receiving payment of the principal amount of the Security or any portion thereof, or the payment of
any Change of Control Repurchase Price in respect thereof, and Interest or Liquidated Damages
thereon, for the purpose of conversion and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.



     Section 2.12. Global Securities. (a) Notwithstanding any other provisions of this Indenture
or the Securities, (A) transfers of a Global Security, in whole or in part, shall be made only in
accordance with Section 2.06 and Section 2.12(a)(i) below, (B) transfers of a beneficial interest
in a Global Security for a Certificated Security shall comply with
Section 2.06 and Section 2.12(a)(ii) below and



17









 




 Section 2.12(e) below, and (C) transfers of a Certificated Security shall
comply with Section 2.06, Section 2.12(a)(iii) and Section 2.12(a)(iv) below.





     (i) Transfer of Global Security. A Global Security may not be transferred, in whole
or in part, to any Person other than the Depositary or a nominee or any successor thereof, and no such transfer to any such other Person may be
registered; provided that this Section 2.12(a)(i) shall not prohibit any transfer of a
Security that is issued in exchange for a Global Security but is not itself a Global
Security. No transfer of a Security to any Person shall be effective under this Indenture
or the Securities unless and until such Security has been registered in the name of such
Person. Nothing in this Section 2.12(a)(i) shall prohibit or render ineffective any
transfer of a beneficial interest in a Global Security effected in accordance with the
other provisions of this Section 2.12.




     (ii) Restrictions on Transfer of a Beneficial Interest in a Global Security for a
Certificated Security. A beneficial interest in a Global Security may not be exchanged for
a Certificated Security except upon satisfaction of the requirements set forth below and in
Section 2.12(e) below. Upon receipt by the Trustee of a transfer of a beneficial interest
in a Global Security in accordance with Applicable Procedures for a Certificated Security
in the form satisfactory to the Trustee, together with:




          (A) so long as the Securities are Restricted Securities, certification in
the form set forth in Exhibit C;




          (B) written instructions to the Trustee to make, or direct the Registrar to
make, an adjustment on its books and records with respect to such Global Security
to reflect a decrease in the aggregate principal amount of the Securities
represented by the Global Security, such instructions to contain information
regarding the Depositary account to be credited with such decrease; and




          (C) if the Company or the Trustee so requests, an opinion of counsel or
other evidence reasonably satisfactory to it as to the compliance with the
restrictions set forth in the Legend,


then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Registrar, the aggregate
principal amount of the Securities represented by the Global Security to be decreased by the
aggregate principal amount of the Certificated Security to be issued, shall issue such Certificated
Security and shall debit or cause to be debited to the account of the person specified in such
instructions a beneficial interest in the Global Security equal to the principal amount of the
Certificated Security so issued.




18









 









     (iii) Transfer and Exchange of Certificated Securities. When Certificated Securities
are presented to the Registrar with a request:




          (y) to register the transfer of such Certificated Securities; or




          (z) to exchange such Certificated Securities for an equal principal amount of
Certificated Securities of other authorized denominations,


the Registrar shall register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that the Certificated Securities
surrendered for transfer or exchange:





     (1) shall be duly endorsed or accompanied by a written instrument of transfer
in form reasonably satisfactory to the Company and the Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing; and




     (2) so long as such Securities are Restricted Securities, such Securities are
being transferred or exchanged pursuant to an effective registration statement
under the Securities Act or pursuant to clause (A), (B) or (C) below, and are
accompanied by the following additional information and documents, as applicable:




     (A) if such Certificated Securities are being delivered to the Registrar
by a Holder for registration in the name of such Holder, without transfer, a
certification from such Holder to that effect; or




     (B) if such Certificated Securities are being transferred to the
Company, a certification to that effect; or




     (C) if such Certificated Securities are being transferred pursuant to an
exemption from registration, (i) a certification to that effect (in the form
set forth in Exhibit C, if applicable) and (ii) if the Company or the Trustee
so requests, an opinion of counsel or other evidence reasonably satisfactory
to it as to the compliance with the restrictions set forth in the Legend.




     (iv) Restrictions on Transfer of a Certificated Security for a Beneficial Interest in
a Global Security. A Certificated Security may not be exchanged for a beneficial interest
in a Global Security except upon satisfaction of the requirements set forth below.



19









 





     Upon receipt by the Trustee of a Certificated Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Trustee, together with:



(I) so long as the Securities are Restricted Securities, certification, in the form set
forth in Exhibit C, that such Certificated Security (A) is being transferred to a QIB in
accordance with Rule 144A under the Securities Act or (B) is being transferred pursuant to and in compliance with Rule 144 under the
Securities Act; and



(II) written instructions directing the Trustee to make, or to direct the Registrar to
make, an adjustment on its books and records with respect to such Global Security to
reflect an increase in the aggregate principal amount of the Securities represented by the
Global Security, such instructions to contain information regarding the Depositary account
to be credited with such increase, then the Trustee shall cancel such Certificated Security
and cause, or direct the Registrar to cause, in accordance with the standing instructions
and procedures existing between the Depositary and the Registrar, the aggregate principal
amount of Securities represented by the Global Security to be increased by the aggregate
principal amount of the Certificated Security to be exchanged, and shall credit or cause to
be credited to the account of the person specified in such instructions a beneficial
interest in the Global Security equal to the principal amount of the Certificated Security
so cancelled. If no Global Securities are then outstanding, the Company shall issue and
the Trustee shall authenticate, upon written order of the Company in the form of an
Officer’s Certificate, a new Global Security in the appropriate principal amount.



     (b) Subject to the succeeding Section 2.12(c), every Security shall be subject to the
restrictions on transfer provided in the Legend including the delivery of an opinion of counsel, if
so provided. Whenever any Restricted Security is presented or surrendered for registration of
transfer or for exchange for a Security registered in a name other than that of the Holder, such
Security must be accompanied by a certificate in substantially the form set forth in Exhibit C,
dated the date of such surrender and signed by the Holder of such Security, as to compliance with
such restrictions on transfer. The Registrar shall not be required to accept for such registration
of transfer or exchange any Security not so accompanied by a properly completed certificate.



     (c) The restrictions imposed by the Legend upon the transferability of any Security shall
cease and terminate when such Security has been sold pursuant to an effective registration
statement under the Securities Act or transferred in compliance with Rule 144 under the Securities
Act (or any successor provision thereto) or, if earlier, upon the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have expired in



20









 




accordance with their terms or shall have terminated may, upon a surrender of such Security for
exchange to the Registrar in accordance with the provisions of this Section 2.12 (accompanied, in
the event that such restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 under the Securities Act or any successor provision, by an opinion of counsel having
substantial experience in practice under the Securities Act and otherwise reasonably acceptable to
the Company and the Trustee, addressed to the Company and the Trustee and in form acceptable to the
Company and the Trustee, to the effect that the transfer of such Security has been made in compliance with Rule 144 under the Securities Act or such
successor provision), be exchanged for a new Security, of like tenor and aggregate principal
amount, which shall not bear the restrictive Legend. The Company shall inform the Trustee of the
effective date of any registration statement registering the Securities under the Securities Act.
The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned opinion of counsel or registration statement.




     (d) As used in the preceding two paragraphs of this Section 2.12, the term “transfer”
encompasses any sale, pledge, transfer, loan, hypothecation, or other disposition of any Security.



     (e) The provisions of clauses (i), (ii), (iii), (iv) and (v) below shall apply only to Global
Securities:




     (i) Notwithstanding any other provisions of this Indenture or the Securities, a Global
Security shall not be exchanged in whole or in part for a Security registered in the name
of any Person other than the Depositary or one or more nominees thereof, provided that a
Global Security may be exchanged for Securities registered in the names of any Person
designated by the Depositary in the event that (i) the Depositary has notified the Company
that it is unwilling or unable to continue as Depositary for such Global Security or such
Depositary has ceased to be a “clearing agency” registered under Exchange Act, and a
successor Depositary is not appointed by the Company within 90 days, (ii) upon request by
or on behalf of the Depositary or (iii) to the extent permitted by the Depositary, the
Company determines at any time that the Securities shall no longer be represented by Global
Securities and shall inform such Depositary of such determination and participants in such
Depository elect to withdraw their beneficial interests in the Global Securities from such
Depository, following notification by the Depositary of their right to do so. Any Global
Security exchanged pursuant to clause (i) above shall be so exchanged in whole and not in
part, and any Global Security exchanged pursuant to clauses (ii) or (iii) above may be
exchanged in whole or from time to time in part as directed by the Depositary. Any
Security issued in exchange for a Global Security or any portion thereof shall be a Global
Security; provided that any such Security so issued that is registered in the name of a
person other than the Depositary or a nominee thereof shall not be a Global Security.



21









 






     (ii) Securities issued in exchange for a Global Security or any portion thereof shall
be issued in definitive, fully registered form, shall have an aggregate principal amount
equal to that of such Global Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized denominations as the Depositary shall
designate and shall bear the applicable legends provided for herein. Any Global Security
to be exchanged in whole shall be surrendered by the Depositary to the Registrar. With
regard to any Global Security to be exchanged in part, either such Global Security shall be so surrendered for exchange or, if the Trustee is
acting as custodian for the Depositary or its nominee with respect to such Global Security,
the principal amount thereof shall be reduced, by an amount equal to the portion thereof to
be so exchanged, by means of an appropriate adjustment made on the records of the Trustee.
Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the
Security issuable on such exchange to or upon the order of the Depositary or an authorized
representative thereof.




     (iii) Subject to the provisions of clause (v) below, the registered Holder may grant
proxies and otherwise authorize any person, including Agent Members (as defined below) and
persons that may hold interests through Agent Members, to take any action which a holder is
entitled to take under this Indenture or the Securities.




     (iv) In the event of the occurrence of any of the events specified in clause (i)
above, the Company will promptly make available to the Trustee a reasonable supply of
Certificated Securities in definitive, fully registered form.




     (v) Neither any members of, or participants in, the Depositary (collectively, the
“Agent Members”) nor any other persons on whose behalf Agent Members may act shall have any
rights under this Indenture with respect to any Global Security registered in the name of
the Depositary or any nominee thereof, or under any such Global Security, and the
Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner and holder of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as between the Depositary, its
Agent Members and any other person on whose behalf an Agent Member may act, the operation
of customary practices of such Persons governing the exercise of the rights of a holder of
any Security.



22









 





     Section 2.13. CUSIP Numbers. The Company may issue the Securities with one or more “CUSIP”
numbers (if then generally in use). The Company will promptly notify the Trustee of any change in
the CUSIP numbers.



ARTICLE 3



Repurchases upon a Change of Control




     Section 3.01. Repurchase of Securities at Option of the Holder Upon a Change of Control. (a)
If a Change of Control occurs, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such
Holder’s Securities, or any portion thereof that is equal to or an integral multiple of $1,000
principal amount, at a repurchase price equal to 100% of the principal amount of those Securities,
plus accrued and unpaid Interest and accrued and unpaid Liquidated Damages, if any, on those
Securities (the “Change of Control Repurchase Price”) to, but not including, the date that is 30
days following the date of the notice of a Change of Control (the “Company Notice”) mailed by the
Company pursuant to Section 3.01(b) (the “Change of Control Repurchase Date”), subject to
satisfaction by or on behalf of the Holder of the requirements set forth in Section 3.01(c);
provided, that if the Change of Control Repurchase Date is on a date that is after an Interest
Record Date and on or prior to the corresponding Interest Payment Date, the Change of Control
Repurchase Price will be 100% of the principal amount of the Securities repurchased but will not
include accrued and unpaid Interest, and Liquidated Damages, if any. Instead, the Company shall
pay such Interest, and Liquidated Damages, if any, to the Holder of Record on the corresponding
Interest Record Date.



     Notwithstanding the provisions of this Section 3.01(a), a Holder will not have the right to
require the Company to repurchase its Securities upon a Change of Control described in clause (2)
under the definition of Change of Control if more than 90% of the consideration in the transaction
or transactions (other than cash payments for fractional shares and cash payments made in respect
of dissenters’ rights) consists of shares of common stock traded or to be traded immediately
following a Change of Control on a national securities exchange or the Nasdaq National Market, and,
as a result of the transaction or transactions, the Securities become convertible into that common
stock (and any rights attached thereto).



     (b) No later than 15 days after the occurrence of a Change of Control, the Company shall mail
a Company Notice of the Change of Control (substantially in the form of Exhibit D) by first class
mail to the Trustee and to each Holder (and to beneficial owners as required by applicable law).
The Company Notice shall include a form of Change of Control Repurchase Notice to be completed by
the Holder and shall state:




     (i) briefly, the events causing a Change of Control and the date of such Change of
Control;



23









 






     (ii) the date by which the Change of Control Repurchase Notice pursuant to this
Section 3.01 must be delivered to the Paying Agent in order for a Holder to exercise the
repurchase rights;




     (iii) the Change of Control Repurchase Date;




     (iv) the Change of Control Repurchase Price;




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




     (vi) the Conversion Rate;




     (vii) that the Securities as to which a Change of Control Repurchase Notice has been
given may be converted if they are otherwise convertible pursuant to Article 10 hereof only
if the Change of Control Repurchase Notice has been withdrawn in accordance with the terms
of this Indenture;




     (viii) that the Securities must be surrendered to the Paying Agent (by effecting book
entry transfer of the Securities or delivering definitive Securities, together with
necessary endorsements, as the case may be) to collect payment;




     (ix) that the Change of Control Repurchase Price for any Security as to which a Change
of Control Repurchase Notice has been duly given and not withdrawn will be paid promptly
following the later of the Business Day immediately following the Change of Control
Repurchase Date and the time of surrender of such Security as described in clause (viii);




     (x) briefly, the procedures the Holder must follow to exercise rights under this
Section 3.01;




     (xi) briefly, the conversion rights, if any, on the Securities;




     (xii) the procedures for withdrawing a Change of Control Repurchase Notice;




     (xiii) that, unless the Company defaults in making payment of such Change of Control
Repurchase Price, Interest and Liquidated Damages, if any, on Securities surrendered for
purchase by the Company will cease to accrue from and after the Change of Control
Repurchase Date; and




     (xiv) the CUSIP number(s) of the Securities.



24









 





     At the Company’s request, the Trustee shall give such Company Notice in the Company’s name and
at the Company’s expense; provided, however, that, in all cases, the text of such Company Notice
shall be prepared by the Company.



     (c) A Holder may exercise its rights specified in this Section 3.01 upon delivery of a written
notice of repurchase (a “Change of Control Repurchase Notice”) to the Paying Agent at any time on
or prior to the close of business on the Change of Control Repurchase Date stating:




     (i) the certificate number of the Security which the Holder will deliver to be
repurchased or, if Certificated Securities have not been issued, the Change of Control
Repurchase Notice shall comply with the appropriate Depository procedures;




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




     (iii) that such Security shall be repurchased pursuant to the terms and conditions
specified in Section 6 of the Securities and in this Indenture.



     The delivery of such Security (together with all necessary endorsements) to the Paying Agent
with the Change of Control Repurchase Notice at the offices of the Paying Agent shall be a
condition to the receipt by the Holder of the Change of Control Repurchase Price therefor;
provided, however, that such Change of Control Repurchase Price shall be so paid pursuant to this
Section 3.01 only if the Security (together with all necessary endorsements) so delivered to the
Paying Agent shall conform in all respects to the description thereof set forth in the related
Change of Control Repurchase Notice.



     The Company shall repurchase from the Holder thereof, pursuant to this Section 3.01, a portion
of a Security 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 Security also apply to the
repurchase of such portion of such Security.



     Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.01
shall be consummated by the delivery of the Change of Control Repurchase Price promptly following
the later of the Business Day following the Change of Control Repurchase Date or the time of
delivery of such Security (together with all necessary endorsements).



     Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Change of Control Repurchase Notice contemplated by this Section 3.01(c) shall have the right to
withdraw such Change of Control Repurchase Notice by delivery of a written notice of withdrawal to
the Paying



25









 




Agent in accordance with Section 3.02 at any time prior to the close of business on the
Change of Control Repurchase Date.




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



     (d) Notwithstanding the foregoing provisions of this Section 3.01, the Company shall not be
required to repurchase the Securities upon a Change of Control if a third party makes a tender
offer to repurchase the Securities in the manner, at the times and otherwise in compliance with the
requirements set forth in this Article III applicable to an offer to repurchase the Securities made
by the Company and purchases all Securities validly tendered and not withdrawn under such offer to
repurchase the Securities.



     Section 3.02. Effect of Change of Control Repurchase Notice. (a) Upon receipt by the Paying
Agent of the Change of Control Repurchase Notice specified in Section 3.01, as applicable, the
Holder of the Security in respect of which such Change of Control Repurchase Notice, as the case
may be, was given shall (unless such Change of Control Repurchase Notice, as the case may be, is
withdrawn as specified in Section 3.02(b)) thereafter be entitled solely to receive the Change of
Control Repurchase Price with respect to such Security. Such Change of Control Repurchase Price
shall be paid to such Holder, subject to receipt of funds and/or securities by the Paying Agent,
promptly following the later of (x) the Business Day following the Change of Control Repurchase
Date, as the case may be, with respect to such Security (provided the conditions in Section 3.01
have been satisfied) and (y) the time of delivery of such Security to the Paying Agent by the
Holder thereof in the manner required by Section 3.01. Securities in respect of which a Change of
Control Repurchase Notice has been given by the Holder thereof may not be converted pursuant to and
to the extent permitted by Article 10 hereof on or after the date of the delivery of such Change of
Control Repurchase Notice unless such Change of Control Repurchase Notice has first been validly
withdrawn as specified in Section 3.02(b).



     (b) A Change of Control Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent in accordance with the Change of Control
Repurchase Notice at any time prior to the close of business on the Change of Control Repurchase
Date, as the case may be, specifying:




	 	(1)	 	the certificate number, if any, of the Security in respect of which such
notice of withdrawal is being submitted,
	 
	 	(2)	 	the principal amount of the Security with respect to which such notice of
withdrawal is being submitted, and
	 
	 	(3)	 	the principal amount, if any, of such Security which remains subject to
the original Change of Control Repurchase Notice, as the case may




26









 






	 	 	 	be, and which has been or will be delivered for purchase by the Company, which portion must be $1,000
or an integral multiple of $1,000.





     (c) There shall be no purchase of any Securities pursuant to Section 3.01 if there has
occurred (prior to, on or after, as the case may be, the giving, by the Holders of such Securities,
of the required Change of Control Repurchase Notice) and is continuing an Event of Default on the
Change of Control Repurchase Date (other than an Event of Default that is cured by the payment of
the Change of Control Repurchase Price with respect to such Securities) which has resulted in the
aggregate outstanding principal amount of the Securities being accelerated and such acceleration
has not been rescinded on or prior to such Change of Control Repurchase Date. The Paying Agent will
promptly return to the respective Holders thereof any Securities (x) with respect to which a Change
of Control Repurchase Notice, as the case may be, has been withdrawn in compliance with this Indenture, or (y) held
by it during the continuance of an Event of Default described above in this Section 3.02(c) (other
than an Event of Default that is cured by the payment of the Change of Control Repurchase Price
with respect to such Securities) in which case, upon such return, the Change of Control Repurchase
Notice with respect thereto shall be deemed to have been withdrawn.



     Section 3.03. Deposit of Change of Control Repurchase Price. Prior to 11:00 a.m. (local time
in the City of New York) on the Business Day following the Change of Control Repurchase Date the
Company shall deposit with the Trustee or with the Paying Agent (or, if the Company or a Subsidiary
or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust
as provided in Section 2.04) an amount of cash in immediately available funds sufficient to pay the
aggregate Change of Control Repurchase Price of all the Securities or portions thereof which are to
be purchased as of the Change of Control Repurchase Date.



     Section 3.04. Securities Purchased in Part. Any Certificated Security which is to be
purchased 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 Security, without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the Security so
surrendered which is not purchased.



     Section 3.05. Covenant to Comply with Securities Laws upon Purchase of Securities. When
complying with the provisions of Section 3.01 hereof (provided that such offer or purchase
constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as used herein,
includes any successor provision thereto) under the Exchange Act at the time of such offer or
purchase), and subject to any



27









 




exemptions available under applicable law, the Company shall (i)
comply with Rule 13e-4 and Rule 14e-1 (or any successor provision) under the Exchange Act, (ii)
file the related Schedule TO (or any successor schedule, form or report) under the Exchange Act,
and (iii) otherwise comply with all Federal and state securities laws so as to permit the rights
and obligations under Section 3.01 to be exercised in the time and in the manner specified in
Section 3.01.




     Section 3.06. Repayment to the Company. The Trustee and the Paying Agent shall return to the
Company any cash that remains unclaimed as provided in Section 13 of the Securities, together with
interest, if any, thereon (subject to the provisions of Section 7.01(f)), held by them for the
payment of the Change of Control Repurchase Price.



ARTICLE 4



Covenants




     Section 4.01. Payment of Securities. The Company shall promptly make all payments in respect
of the Securities on the dates and in the manner provided in the Securities or pursuant to this
Indenture. Any amounts of cash in immediately available funds or shares of Common Stock to be
given to the Trustee or Paying Agent shall be deposited by the Company with the Trustee or Paying
Agent no later than 11:00 a.m., New York City time on the date such payment becomes due. The
principal amount of, and Interest, and Liquidated Damages, if any, on the Securities, and the
Change of Control Repurchase Price shall be considered paid on the applicable date due if at 11:00
a.m., New York City time, on such date (or, in the case of a Change of Control Repurchase Price, on
the Business Day immediately following the applicable Change of Control Repurchase Date) the
Trustee or the Paying Agent holds, in accordance with this Indenture, cash or securities, if
permitted hereunder, sufficient to pay all such amounts then due.



     Section 4.02. SEC and Other Reports. The Company shall file with the Trustee, within 15 days
after it files such annual and quarterly reports, information, documents and other reports with the
SEC, copies of its annual report and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. In
the event the Company is at any time no longer subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, it shall, to the extent required by TIA Section 314(a), continue to
provide the Trustee with reports containing substantially the same information as would have been
required to be filed with the SEC had the Company continued to have been subject to such reporting
requirements. The Company shall also comply with the other provisions of TIA Section 314(a).
Delivery of such reports, information and documents to the Trustee is for informational purposes
only and the Trustee’s receipt of such shall not constitute constructive notice of any information
contained therein or



28









 




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
conclusively on Officer’s Certificates).




     Section 4.03. Compliance Certificate. The Company shall deliver to the Trustee within 120
days after the end of each fiscal year of the Company (beginning with the fiscal year ending
December 31, 2005) an Officer’s Certificate, stating whether or not to the knowledge of the signer
thereof, the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of grace or requirement
of notice provided hereunder) and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which such Officer may have knowledge.



     The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee,
within 30 days of any executive officer of the Company becoming aware of any Event of Default in
respect of the performance or observance of any covenant or agreement contained in this Indenture
or the Securities, an Officer’s Certificate specifying such Event of Default and what action the
Company is taking or proposes to take with respect thereto.



     Section 4.04. Further Instruments and Acts. The Company will execute and deliver such
further instruments and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purposes of this Indenture.



     Section 4.05. Maintenance of Office or Agency. The Company will maintain in Charlotte, North
Carolina, an office or agency of the Trustee, Registrar, Paying Agent and Conversion Agent where
Securities may be presented or surrendered for payment, where Securities may be surrendered for
registration of transfer, exchange, purchase or conversion and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The office of the
Trustee in Charlotte, North Carolina (which shall initially be located at 401 S. Tryon Street,
12th Floor, Charlotte, North Carolina 28288-1179, Attention: Corporate Trust Services
(EnPro Industries, Inc. 3.9375% Convertible Senior Debentures Due 2015)) shall initially be such
office or agency for all of the aforesaid purposes. The Company shall give prompt written notice
to the Trustee of the location, and of any change in the location, of any such office or agency
(other than a change in the location of the office of the Trustee). If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the address of the Trustee set forth in Section 11.02.



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



29









 




however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency in Charlotte,
North Carolina, for such purposes.




     Section 4.06. Delivery of Certain Information. At any time when the Company is not subject
to Section 13 or 15(d) of the Exchange Act, upon the request of a Holder or any beneficial owner of
Securities or holder or beneficial owner of shares of Common Stock issued upon conversion thereof,
the Company will promptly furnish or cause to be furnished Rule 144A Information (as defined below)
to such Holder or any beneficial owner of Securities or holder or beneficial owner of shares of
Common Stock issued upon conversion thereof, or to a prospective purchaser of any such security
designated by any such holder, as the case may be, to the extent required to permit compliance by
such Holder or holder with Rule 144A under the Securities Act in connection with the resale of any
such security. “Rule 144A Information” shall be such information as is specified pursuant to Rule 144A(d)(4) under the Securities Act. Whether a person is a beneficial owner
shall be determined by the Company to the Company’s reasonable satisfaction.



     Section 4.07. Liquidated Damages Notice. In the event that the Company is required to pay
Liquidated Damages to holders of Securities pursuant to the Registration Rights Agreement, the
Company will provide written notice (“Liquidated Damages Notice”) to the Trustee of its obligation
to pay Liquidated Damages prior to the required payment date for the Liquidated Damages, and the
Liquidated Damages Notice shall set forth the amount of Liquidated Damages 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
Securities to determine the Liquidated Damages, or with respect to the nature, extent or
calculation of the amount of Liquidated Damages when made, or with respect to the method employed
in such calculation of the Liquidated Damages.



ARTICLE 5



Successor Person




     Section 5.01. When Company May Merge or Transfer Assets. The Company shall not consolidate
with or merge with or into any other Person or convey, transfer, sell, lease or otherwise dispose
of all or substantially all of its properties and assets to any Person, unless:




     (a) the resulting, surviving or transferee person (the “successor Person”) and, if any
resulting Conversion Obligation relates to Public Acquirer Common Stock that is not issued
by such successor Person, such public acquirer, will be a corporation organized and
existing under the laws of the United States, any State thereof or the District of Columbia
and the successor Person (if not the Company) and the public acquirer, as



30









 





applicable, will
expressly assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the
Company under the Securities and this Indenture;




     (b) immediately after giving effect to such transaction, no Event of Default, and no
event that, after notice or lapse of time or both, would become an Event of Default, shall
have occurred and be continuing; and




     (c) the Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer,
sale or lease and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article 5 and that all
conditions precedent herein provided for relating to such transaction have been satisfied.



     For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the
properties and assets of one or more Designated 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, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.



     The successor Person formed by such consolidation or into which the Company is merged or the
successor Person to which such conveyance, transfer, sale or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor had been named as the Company herein; and thereafter, except
in the case of a lease and obligations the Company may have under a supplemental indenture, the
Company shall be discharged from all obligations and covenants under this Indenture and the
Securities. Subject to Section 9.06, the Company, the Trustee and the successor Person shall enter
into a supplemental indenture to evidence the succession and substitution of such successor Person
and such discharge and release of the Company.



ARTICLE 6



Defaults and Remedies




     Section 6.01. Events of Default. So long as any Securities are outstanding, each of the
following shall be an “Event of Default”:



     (a) the Company defaults in its obligation to deliver the Conversion Settlement Distribution
upon conversion of the Securities, together with cash in lieu thereof in respect of any fractional
shares, upon conversion of any Securities and such default continues for a period of five Business
Days or more;



31









 





     (b) the Company defaults in its obligation under Article 3 to purchase any Security at the
option of a Holder upon a Change of Control;



     (c) the Company defaults in the payment of the principal amount of any Security when the same
becomes due and payable at its Stated Maturity;



     (d) the Company defaults in the payment of any Interest or Liquidated Damages when due and
payable, and such default continues for a period of 30 days;



     (e) the Company fails to perform or observe any term, covenant or agreement in the Securities
or this Indenture (other than those referred to in clause (a) through clause (d) above) and such
failure continues for 60 days after receipt by the Company of a Notice of Default;



     (f) a failure to pay when due at maturity or a default, event of default or other similar
condition or event (however described) that results in the acceleration of maturity of indebtedness
for borrowed money of the Company or any Designated Subsidiary (but excluding any intercompany debt
and security and appeal bonds of the Designated Subsidiaries) in an aggregate amount of $15 million
or more, unless such failure is cured or such acceleration is rescinded, stayed or annulled within
30 days after receipt by the Company of a Notice of Default;



     (g) the entry by a court having jurisdiction in the premise of (i) a decree or order for
relief in respect of the Company in an involuntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging the
Company, a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under any applicable law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for relief or any such
other decree or order described in clause (i) or (ii) above unstayed and in effect for a period of
60 consecutive days; and



     (h) the commencement by the Company of a voluntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by the Company to the entry of a decree or
order for relief in respect of the Company in an involuntary case or proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against the Company, or the filing by the Company
of a petition or answer or consent seeking reorganization or relief under any applicable law, or
the consent by the Company to the filing of such petition or to the appointment of or the taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar



32









 




official of the Company or of any substantial part of its property, or the making by the Company of
an assignment for the benefit of creditors, or the admission by the Company in writing of its
inability to pay its debts generally as they become due, or the taking of corporate action by the
Company expressly in furtherance of any such action.




     For the avoidance of doubt, clauses (e) and (f) above shall not constitute an Event of Default
until the Trustee notifies the Company, or the Holders of at least 25% in aggregate principal
amount of the Securities at the time outstanding notify the Company and the Trustee, of such
default and the Company does not cure such default (and such default is not waived) within the time
specified in clauses (e) and (f) above after actual receipt of such notice. Any such notice must
specify the default, demand that it be remedied and state that such notice is a “Notice of
Default.”



     Section 6.02. Acceleration. If an Event of Default (other than an Event of Default specified
in Section 6.01(g) or Section 6.01(h)) occurs and is continuing (the default not having been cured
or waived), the Trustee by notice to the Company, or the Holders of at least 25% in aggregate
principal amount of the Securities at the time outstanding by notice to the Company and the
Trustee, may declare the principal amount of the Securities and any accrued and unpaid Interest,
and accrued and unpaid Liquidated Damages, if any, on all the Securities to be immediately due and
payable. Upon such a declaration, such accelerated amount shall be due and payable immediately.
If an Event of Default specified in Section 6.01(g) or Section 6.01(h) occurs and is continuing,
the principal amount of the Securities and any accrued and unpaid Interest, and accrued and unpaid
Liquidated Damages, if any, on all the Securities shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Securityholders. The
Holders of a majority in aggregate principal amount of the Securities at the time outstanding, by
notice to the Trustee (and without notice to any other Securityholder) may rescind an acceleration
and its consequences if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of the principal amount of
the Securities and any accrued and unpaid Interest, and accrued and unpaid Liquidated Damages, if
any, that have become due solely as a result of acceleration. No such rescission shall affect any
subsequent Event of Default or impair any right consequent thereto.



     Section 6.03. Other Remedies. If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of the principal amount of the Securities
and any accrued and unpaid Interest, and accrued and unpaid Liquidated Damages, if any, on the
Securities or to enforce the performance of any provision of the Securities or this Indenture.



     The Trustee may maintain a proceeding even if the Trustee does not possess any of the
Securities or does not produce any of the Securities in the proceeding. A



33









 




delay or omission by the Trustee or any Securityholder in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of, or acquiescence in, the Event of
Default. No remedy is exclusive of any other remedy. All available remedies are cumulative.




     Section 6.04. Waiver of Past Defaults. The Holders of a majority in aggregate principal
amount of the Securities at the time outstanding, by notice to the Trustee (and without notice to
any other Securityholder), may waive an existing or past Event of Default and its consequences
except (1) an Event of Default described in clauses (a), (b), (c) and (d) of Section 6.01 or (2) an
Event of Default described in clause (e) of Section 6.01 in respect of a term, covenant or
agreement in the Securities or this Indenture that under Section 9.02 cannot be amended without the
consent of each Securityholder affected. When an Event of Default is waived, it is deemed cured,
but no such waiver shall extend to any subsequent or other Event of Default or impair any
consequent right. This Section 6.04 shall be in lieu of Section 316(a)1(B) of the TIA and such Section 316(a)1(B) is hereby expressly
excluded from this Indenture, as permitted by the TIA.



     Section 6.05. Control by Majority. The Holders of a majority in aggregate principal amount
of the Securities at the time outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of 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 or that the Trustee determines in good faith is unduly prejudicial to the rights of
other Securityholders or would involve the Trustee in personal liability. This Section 6.05 shall
be in lieu of Section 316(a)1(A) of the TIA and such Section 316(a)1(A) is hereby expressly
excluded from this Indenture, as permitted by the TIA.



     Section 6.06. Limitation on Suits. A Securityholder may not pursue any remedy with respect
to this Indenture or the Securities, except in the case of an Event of Default described in clauses
(c) and (d) of Section 6.01, unless:




	 	(1)	 	the Holder gives to the Trustee written notice stating that an Event of
Default is continuing;
	 
	 	(2)	 	the Holders of at least 25% in aggregate principal amount of the
Securities at the time outstanding make a written request to the Trustee to pursue
the remedy;
	 
	 	(3)	 	such Holder or Holders offer to the Trustee reasonable security or
indemnity to the Trustee against any loss, liability or expense;
	 
	 	(4)	 	the Trustee does not comply with the request within 60 days after receipt
of such notice, request and offer of security or indemnity; and






34










 







	 	(5)	 	the Holders of a majority in aggregate principal amount of the Securities
at the time outstanding do not give the Trustee a direction inconsistent with the
request during such 60-day period.





     A Securityholder may not use this Indenture to prejudice the rights of any other
Securityholder or to obtain a preference or priority over any other Securityholder.



     Section 6.07 . Rights of Holders to Receive Payment. Notwithstanding any other provision of
this Indenture, the right of any Holder to receive payment of the principal amount of the
Securities and any accrued and unpaid Interest, and accrued and unpaid Liquidated Damages, if any,
in respect of the Securities held by such Holder, on or after the respective due dates expressed in
the Securities or any Change of Control Repurchase Date, and to convert the Securities in
accordance with Article 10, or to bring suit for the enforcement of any such payment on or after
such respective dates or the right to convert, shall not be impaired or affected adversely without
the consent of such Holder.



     Section 6.08 . Collection Suit by Trustee. If an Event of Default described in Section 6.01
clauses (a), (c) or (d) occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount owing with respect to
the Securities and the amounts provided for in Section 7.07.



     Section 6.09 . Trustee May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal amount of the Securities and any accrued and unpaid
Interest, and accrued and unpaid Liquidated Damages, if any, in respect of the Securities shall
then be due and payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of any such amount)
shall be entitled and empowered, by intervention in such proceeding or otherwise:




     (a) to file and prove a claim for the whole principal amount of the Securities and any
accrued and unpaid Interest, and accrued and unpaid Liquidated Damages, if any, and to file
such other papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel or any other amounts due
the Trustee under Section 7.07) and of the Holders allowed in such judicial proceeding, and




     (b) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same; and any



35









 






custodian, receiver, assignee, trustee, liquidator, sequestrator or similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.07.



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



     The Trustee shall be entitled to participate as a member of any official committee of
creditors of the Company as it deems necessary or advisable.



     Section 6.10 . Priorities. If the Trustee collects any money pursuant to this Article 6, it
shall pay out the money in the following order:




     FIRST: to the Trustee for amounts due under Section 7.07;




     SECOND: to Securityholders for amounts due and unpaid on the Securities for the
principal amount of the Securities and any accrued and unpaid Interest, and accrued and
unpaid Liquidated Damages, if any, as the case may be, ratably, without preference or
priority of any kind, according to such amounts due and payable on the Securities; and




     THIRD: the balance, if any, to the Company.



     The Trustee may fix a record date and payment date for any payment to Securityholders pursuant
to this Section 6.10. At least 15 days before such record date, the Trustee shall mail to each
Securityholder and the Company a notice that states the record date, the payment date and the
amount to be paid.



     Section 6.11 . Undertaking for Costs. In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant (other than the
Trustee) in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against
any party litigant in the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in aggregate
principal amount of the Securities at the time outstanding. This Section 6.11 shall be in lieu of
Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded from this Indenture,
as permitted by the TIA.



36









 





     Section 6.12 . Waiver of Stay, Extension or Usury Laws. The Company covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which would prohibit or forgive
the Company from paying all or any portion of the principal amount of the Securities and any
accrued and unpaid Interest, and accrued and unpaid Liquidated Damages, if any, on Securities, as
contemplated herein, or which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not 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.



ARTICLE 7

Trustee




     Section 7.01 . Duties of Trustee. The duties and responsibilities of the Trustee shall be as
provided by the TIA and as set forth herein.



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



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




	 	(1)	 	the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied duties
shall be read into this Indenture against the Trustee; and
	 
	 	(2)	 	in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture, but in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or not they conform
to the requirements of this Indenture, but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein. This
Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and such Section
315(a) is hereby expressly excluded from this Indenture, as permitted by the
TIA.




37









 











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




	 	(1)	 	this Section (c) does not limit the effect of Section
7.01(b);
	 
	 	(2)	 	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
	 
	 	(3)	 	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.





     Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1), 315(d)(2) and
315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and 315(d)(3) are hereby expressly
excluded from this Indenture, as permitted by the TIA.



     (d) Every provision of this Indenture that in any way relates to the Trustee is subject to
this Section 7.01.



     (e) The Trustee may refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability or expense.



     (f) Money held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee (acting in any capacity hereunder) shall be
under no liability for interest on any money received by it hereunder unless otherwise agreed in
writing with the Company.



     (g) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.



     Section 7.02 . Rights of Trustee. Subject to its duties and responsibilities under the TIA:




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



38









 






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




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




     (d) the Trustee shall not be liable for any action taken, suffered, or omitted to be
taken by it in good faith which it believes to be authorized or within its rights or powers
conferred under this Indenture;




     (e) the Trustee may consult with counsel selected by it and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;




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




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




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



39









 






     (i) the Trustee shall not be deemed to have notice of any default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Securities and this
Indenture;




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




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




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



     Section 7.03 . Individual Rights of Trustee. The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar, Conversion Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Section 7.10 and Section 7.11.



     Section 7.04 . Trustee’s Disclaimer. The Trustee makes no representation as to the validity
or adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use
or application of the proceeds from the Securities, it shall not be responsible for any statement
in the registration statement for the Securities under the Securities Act or in any offering
document for the Securities, the Indenture or the Securities (other than its certificate of
authentication), or the determination as to which beneficial owners are entitled to receive any
notices hereunder.



     Section 7.05 . Notice of Defaults. If a default or Event of Default occurs and if it is
known to the Trustee, the Trustee shall give to each Securityholder notice of the default or Event
of Default within 90 days after it occurs or, if later, within 15 days after it is known to the
Trustee, unless such default or Event of Default shall have been cured or waived before the giving
of such notice. Notwithstanding the preceding sentence, except in the case of a default or Event
of Default described in clauses (c) and (d) of Section 6.01, the Trustee may withhold



40









 




the notice if and so long as a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interest of the Securityholders. The preceding sentence
shall be in lieu of the proviso to Section 315(b) of the TIA and such proviso is hereby expressly
excluded from this Indenture, as permitted by the TIA. The Trustee shall not be deemed to have
knowledge of a default or Event of Default unless a Responsible Officer of the Trustee has received
written notice of such default or Event of Default, which notice specifically references this
Indenture and the Securities.




     Section 7.06 . Reports by Trustee to Holders. Within 60 days after each December 31
beginning with the December 31 following the date of this Indenture, the Trustee shall mail to each
Securityholder a brief report dated as of such December 31 that complies with TIA Section 313(a),
if required by such Section 313(a). The Trustee also shall comply with TIA Section 313(b).



     A copy of each report at the time of its mailing to Securityholders shall be filed with the
SEC and each securities exchange, if any, on which the Securities are listed. The Company agrees to
notify the Trustee promptly whenever the Securities become listed on any securities exchange and of
any delisting thereof.



     Section 7.07 . Compensation and Indemnity. The Company agrees:




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




     (b) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses, advances and
disbursements of its agents and counsel), except any such expense, disbursement or advance
as are attributable to its own negligence, willful misconduct or bad faith as determined by
a court of competent jurisdiction in a final, non-appealable judgment; and




     (c) to indemnify the Trustee or any predecessor Trustee and their agents for, and to
hold them harmless against, any loss, damage, claim, liability, cost or expense (including
reasonable attorney’s fees and expenses, and taxes (other than taxes based upon, measured
by or determined by the income of the Trustee)) incurred without negligence, willful
misconduct or bad faith on its part as determined by a court of competent jurisdiction in a
final, non-appealable judgment, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending itself against
any claim (whether asserted by the Company or



41









 






any Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder.



     To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the Trustee, except that
held in trust to pay the principal amount of, or the Change of Control Repurchase Price, Interest
or Liquidated Damages, if any, as the case may be, on particular Securities.



     The Company’s payment obligations pursuant to this Section 7.07 shall survive the discharge of
this Indenture and the resignation or removal of the Trustee. When the Trustee incurs expenses
after the occurrence of an Event of Default specified in Section 6.01(g) or Section 6.01(h), the
expenses, including the reasonable charges and expenses of its counsel, are intended to constitute
expenses of administration under any bankruptcy law.



     Section 7.08 . Replacement of Trustee. The Trustee may resign by so notifying the Company;
provided, however, no such resignation shall be effective until a successor Trustee has accepted
its appointment pursuant to this Section 7.08. The Holders of a majority in aggregate principal
amount of the Securities at the time outstanding may remove the Trustee by so notifying the Trustee
and the Company. The Company shall remove the Trustee if:




	 	(1)	 	the Trustee fails to satisfy the requirements of Section 7.10;
	 
	 	(2)	 	the Trustee is adjudged bankrupt or insolvent;
	 
	 	(3)	 	a receiver or public officer takes charge of the Trustee or its property;
or
	 
	 	(4)	 	the Trustee otherwise becomes incapable of acting.





     If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint, by resolution of its Board of Directors, a successor
Trustee.



     A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company satisfactory in form and substance to the retiring Trustee and the
Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to Securityholders. The
retiring Trustee shall promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 7.07.



     If a successor Trustee does not take office within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of



42









 




a majority in aggregate principal amount of the Securities at the time outstanding may
petition any court of competent jurisdiction at the expense of the Company for the appointment of a
successor Trustee.




     If the Trustee fails to satisfy the requirements of Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.



     So long as no event which is, or after notice or lapse of time, or both, would become, an
Event of Default shall have occurred and be continuing, if the Company shall have delivered to the
Trustee (i) a Board Resolution appointing a successor Trustee, effective as of a date at least 30
days after delivery of such Resolution to the Trustee, and (ii) an instrument of acceptance of such
appointment, effective as of such date, by such successor Trustee in accordance with this
Indenture, the Trustee shall be deemed to have resigned as contemplated in this Section 7.08, the
successor Trustee shall be deemed to have been accepted as contemplated in this Indenture, all as
of such date, and all other provisions of this Indenture shall be applicable to such resignation,
appointment and acceptance.



     Section 7.09 . Successor Trustee by Merger. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all its corporate trust business or assets to,
another corporation, the resulting, surviving or transferee corporation without any further act
shall be the successor Trustee.



     Section 7.10 . Eligibility; Disqualification. The Trustee shall at all times satisfy the
requirements of TIA Sections 310(a)(1) and 310(b). The Trustee (or its parent holding company)
shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. Nothing herein contained shall prevent the Trustee from
filing with the Commission the application referred to in the penultimate paragraph of TIA Section
310(b).



     Section 7.11 . Preferential Collection of Claims Against Company. The Trustee shall comply
with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.



ARTICLE 8

Discharge of Indenture




     Section 8.01 . Discharge of Liability on Securities. When (i) the Company delivers to the
Trustee all outstanding Securities (other than Securities replaced or repaid pursuant to Section
2.07) for cancellation or (ii) all outstanding Securities have become due and payable and the
Company deposits with the Trustee cash sufficient to pay all amounts due and owing on all
outstanding Securities (other



43









 




than Securities replaced pursuant to Section 2.07), and if in either case the Company pays all
other sums payable hereunder by the Company, then this Indenture shall, subject to Section 7.07,
cease to be of further effect. The Trustee shall join in the execution of a document prepared by
the Company acknowledging satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officer’s Certificate and Opinion of Counsel and at the cost and expense of the
Company.




     Section 8.02 . Repayment to the Company. The Trustee and the Paying Agent shall return to
the Company upon written request any money or securities held by them for the payment of any amount
with respect to the Securities that remains unclaimed for two years, subject to applicable
unclaimed property law. After return to the Company, Holders entitled to the money or securities
must look to the Company for payment as general creditors unless an applicable abandoned property
law designates another person and the Trustee and the Paying Agent shall have no further liability
to the Securityholders with respect to such money or securities for that period commencing after
the return thereof.



ARTICLE 9

Amendments




     Section 9.01 . Without Consent of Holders. The Company and the Trustee may modify or amend
this Indenture or the Securities without the consent of any Securityholder to:




     (a) add to the covenants or Events of Default of the Company for the benefit of the
Holders of Securities;




     (b) surrender any right or power herein conferred upon the Company;




     (c) provide for conversion rights of Holders of Securities if any reclassification or
change of the Common Stock or any consolidation, merger or sale of all or substantially all
of the Company’s assets occurs;




     (d) provide for the assumption of the Company’s obligations to the Holders of
Securities in the case of a merger, consolidation, conveyance, transfer or lease pursuant
to Article 5 hereof;




     (e) increase the Conversion Rate; provided, however, that such increase in the
Conversion Rate shall not adversely affect the interests of the Holders of Securities
(after taking into account tax and other consequences of such increase);



44









 






     (f) comply with the requirements of the SEC in order to effect or maintain the
qualification of this Indenture or any supplemental indenture under the TIA;




     (g) make any changes or modifications necessary in connection with the registration of
the Securities under the Securities Act as contemplated in the Registration Rights
Agreement; provided, however, that any such change or modification does not adversely
affect the interests of the Holders of Securities in any material respect;




     (h) cure any ambiguity or to correct or supplement any provision herein which may be
inconsistent with any other provision herein or which is otherwise defective; provided,
however, that any such change or modification does not adversely affect the interests of
the Holders of Securities in any material respect;




     (i) evidence and provide for the acceptance of the appointment under this Indenture of
a successor Trustee in accordance with the terms of this Indenture;




     (j) add guarantees with respect to the Securities or securing the Securities;




     (k) conform, as necessary, this Indenture to the “Description of the Debentures” in
the Offering Memorandum relating to the Securities; or




     (l) add or modify any other provisions herein with respect to matters or questions
arising hereunder which the Company and the Trustee may deem necessary or desirable and
which will not adversely affect the interests of the Holders of Securities in any material
respect



     Section 9.02 . With Consent of Holders. Except as provided below in this Section 9.02, this
Indenture or the Securities may be amended, modified or supplemented, and noncompliance in any
particular instance with any provision of this Indenture or the Securities may be waived, in each
case with the written consent of the Holders of at least a majority of the principal amount of the
Securities at the time outstanding.



     Without the written consent or the affirmative vote of each Holder of Securities affected
thereby, an amendment, supplement or waiver under this Section 9.02 may not:




     (a) change the maturity of any Security, or the payment date of any installment of
Interest or Liquidated Damages payable on any Security;



45









 






     (b) reduce the principal amount of, or the Interest, or Liquidated Damages, payable
on, or the Change of Control Repurchase Price of, any Security;




     (c) impair or adversely affect the conversion rights of any Holder of Securities;




     (d) change the currency of payment of such Securities or Interest, Liquidated Damages
or Change of Control Repurchase Price thereon;




     (e) alter the manner of calculation or rate of accrual of Interest or Liquidated
Damages or Change of Control Repurchase Price of any Security or extend the time for
payment of any such amount;




     (f) impair the right of any Holder to institute suit for the enforcement of any
payment on or with respect to, or conversion of, any Security;




     (g) adversely affect the repurchase option of the Holders of the Securities as
provided in Article 3 or the right of the Holders of the Securities to convert any Security
as provided in Article 10, except as otherwise permitted pursuant to Article 5 or Section
10.05 hereof;




     (h) modify any of the provisions of this Section 9.02, or reduce the percentage of the
aggregate principal amount of outstanding Securities required to amend, modify or
supplement the Indenture or the Securities or waive an Event of Default, except to provide
that certain other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security affected thereby; or




     (i) reduce the percentage of the aggregate principal amount of the outstanding
Securities the consent of whose Holders is required for any such supplemental indenture
entered into in accordance with this Section 9.02 or the consent of whose Holders is
required for any waiver provided for in this Indenture.



     It shall not be necessary for the consent of the Holders under this Section 9.02 to approve
the particular form of any proposed amendment, but it shall be sufficient if such consent approves
the substance thereof.



     After an amendment under this Section 9.02 becomes effective, the Company shall mail to each
Holder a notice briefly describing the amendment.



     Nothing in this Section 9.02 shall impair the ability of the Company and the Trustee to amend
this Indenture or the Securities without the consent of any Securityholder to provide for the
assumption of the Company’s obligations to the



46









 




Holders of Securities in the case of a merger, consolidation, conveyance, transfer or lease
pursuant to Article 5 hereof.




     Section 9.03 . Compliance With Trust Indenture Act. Every supplemental indenture executed
pursuant to this Article shall comply with the TIA.



     Section 9.04 . Revocation and Effect of Consents, Waivers and Actions. Until an amendment,
waiver or other action by Holders becomes effective, a consent thereto by a Holder of a Security
hereunder is a continuing consent by the Holder and every subsequent Holder of that Security or
portion of the Security that evidences the same obligation as the consenting Holder’s Security,
even if notation of the consent, waiver or action is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent, waiver or action as to such Holder’s Security
or portion of the Security if the Trustee receives the notice of revocation before the date the
amendment, waiver or action becomes effective. After an amendment, waiver or action becomes
effective, it shall bind every Securityholder.



     Section 9.05 . Notation on or Exchange of Securities. Securities authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article 9 may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided
for in such supplemental indenture. If the Company shall so determine, new Securities so modified
as to conform, in the opinion of the Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for outstanding Securities.



     Section 9.06 . Trustee to Sign Supplemental Indentures. The Trustee shall sign any
supplemental indenture authorized pursuant to this Article 9 if the amendment contained therein
does not affect the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign such supplemental indenture. In signing such supplemental
indenture the Trustee shall receive, and (subject to the provisions of Section 7.01) shall be fully
protected in relying upon, an Officer’s Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.



     Section 9.07 . Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.



47









 





ARTICLE 10

Conversions




     Section 10.01 . Conversion Privilege. (a) Subject to and upon compliance with the provisions
of this Article 10 (including without limitation the Company’s right, in its sole and absolute
discretion, to satisfy its Conversion Obligation in any manner permitted pursuant to Section
10.03), a Holder of a Security shall have the right, at such Holder’s option, to convert all or any
portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof)
of such Security prior to the close of business on the Stated Maturity into cash and, if
applicable, shares of Common Stock at the Conversion Rate (the “Conversion Obligation”) in effect
on the date of conversion only as follows:




     (1) during any fiscal quarter of the Company (a “Fiscal Quarter”) commencing
after December 31, 2005 (and only during such Fiscal Quarter), if the Closing Price
of the Common Stock for at least 20 Trading Days during the period of 30
consecutive Trading Days ending on the last Trading Day of the preceding Fiscal
Quarter is greater than or equal to 130% of the Conversion Price in effect on such
30th Trading Day;




     (2) during the five Business Day period immediately following any five
consecutive Trading Day period (the “Measurement Period”) in which the Trading
Price per $1,000 original principal amount of the Securities for each day of such
Measurement Period was less than 98% of the product of the Closing Price of the
Common Stock and the Conversion Rate on each such date. The Conversion Agent will,
on the Company’s behalf, determine if the Securities are convertible as a result of
the Trading Price of the Securities and notify the Company and the Trustee;
provided, that the Conversion Agent shall have no obligation to determine the
Trading Price of the Securities unless the Company has requested such determination
and the Company shall have no obligation to make such request unless requested to
do so by a Holder of the Securities. Upon making any such request, any such
requesting Holder shall provide reasonable evidence that (A) such requesting Holder
is a Holder of the Securities as of the date of such notice, and (B) the Trading
Price per $1,000 principal amount of Securities would be less than 98% of the
product of the Closing Price of the Common Stock and the Conversion Rate. At such
time, the Company shall instruct the Conversion Agent to determine the Trading
Price of the Securities beginning on the next Trading Day and on each successive
Trading Day until the Trading Price per $1,000 original principal amount of the
Securities is greater than or equal to 98% of the product of the Closing Price of
the Common Stock and the Conversion Rate;



48









 






     (3) at the election of any Holder made on or after September 15, 2015 and
prior to the close of business on the Stated Maturity;




     (4) as provided in clause (b) of this Section 10.01.



     The Company or a designated agent (the Conversion Agent in the case of Section 10.01(a)(2))
shall determine on a daily basis during the time periods specified in Section 10.01(a)(1) or,
following a request by a Holder of Securities in accordance with the procedures specified in
Section 10.01(a)(2), Section 10.01(a)(2), whether the Securities shall be convertible as a result
of the occurrence of an event specified in such Sections and, if the Securities shall be so
convertible, the Company shall promptly deliver to the Trustee and Conversion Agent written notice
thereof. Whenever the Securities shall become convertible pursuant to this Section 10.01 (as
determined in accordance with this Section 10.01), the Company or, at the Company’s request, the
Trustee in the name and at the expense of the Company, shall promptly notify the Holders of the
event triggering such convertibility in the manner provided in Section 11.02, and the Company shall
also promptly disseminate a press release through Dow Jones & Company, Inc. or Bloomberg Business
News and publish such information on the Company’s Website or through another public medium the
Company may use at that time. Any notice so given shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice.



     (b) In the event that:




     (1) (A) the Company distributes to all holders of Common Stock certain rights
or warrants entitling them to purchase, for a period expiring within 60 days after
the date of such distribution, Common Stock at a price per share of less than the
Closing Price of the Common Stock on the Trading Day immediately preceding the
announcement date for such distribution; or (B) the Company distributes to all
holders of Common Stock assets (including cash), debt securities or certain rights
to purchase the Company’s securities, which distribution has a per share value as
determined by the Board of Directors exceeding 10% of the Closing Price of the
Common Stock on the Trading Day immediately preceding the announcement date of such
distribution, then, in either case, the Securities may be surrendered for
conversion at any time on and after the date that the Company gives notice to the
Holders of such distribution, which shall be not less than 20 Business Days prior
to the Ex-Dividend Date for such distribution, until the earlier of the close of
business on the Business Day immediately preceding the Ex-Dividend Date or the date
the Company announces that such distribution will not take place, even if the
Securities are not otherwise convertible at such time; provided that no Holder of a
Security will have the right to



49









 






convert if the Holder may otherwise participate in such distribution without
conversion; or




     (2) If a Change of Control occurs, then the Securities may be surrendered for
conversion at any time from and after the date which is 15 days prior to the
anticipated effective date of such transaction until and including the date which
is 15 days after the actual effective date of such transaction (or, if such
transaction also constitutes a Change of Control requiring the Company to offer to
repurchase the Securities pursuant to Article III, until the Change of Control
Repurchase Date). The Company shall notify Holders at the time the Company
publicly announces the Change of Control transaction giving rise to the above
conversion right (but in no event less than 15 days prior to the effective date of
such transaction).




          If the Company engages in any reclassification of the Common Stock (other than
a subdivision or combination of its outstanding Common Stock, or a change in par
value, or from par value to no par value, or from no par value to par value) or is
party to a consolidation, merger, binding share exchange or transfer of all or
substantially all of its assets pursuant to which holders of the Common Stock would
be entitled to receive stock, other securities, other property, assets or cash for
their Common Stock, upon conversion by a Holder of Securities, the Conversion
Settlement Distribution it will be entitled to receive pursuant to Section 10.03
shall be determined based on the kind and amount of consideration that it would
have been entitled to receive (such property, collectively, the “Reference
Property”) had it owned a number of shares of Common Stock equal to the Conversion
Rate immediately prior to any of these transactions multiplied by the principal
amount of the Securities converted. In the event holders of the Common Stock have
the opportunity to elect the form of consideration to be received in such
transaction, the Company shall make adequate provision whereby the Holders of the
Securities shall have a reasonable opportunity, to determine the form of
consideration, consistent with the election rights and restrictions applicable to
holders of Common Stock, into which all of the Securities, treated as a single
class, shall be convertible from and after the effective date of such transaction.
Such determination shall be set forth in Section 1.05 and shall be subject to any
limitations to which all of the holders of the Common Stock are subject, such as
pro-rata reductions applicable to any portion of the consideration payable in such
event and shall be conducted in such a manner as to be completed by the date which
is the earliest of (a) the deadline for elections to be made by holders of the
Common Stock in connection with such transaction, and (b) two Trading Days prior to
the anticipated effective date of such event. The



50









 






Company shall provide notice of the opportunity to determine the form of such
consideration, as well as notice of the determination made by Holders of the
Securities by issuing a press release and providing a copy of such notice to the
Trustee. The Company shall not become a party to any such transaction unless its
terms are consistent with the preceding. If the transaction also constitutes a
Change of Control, (A) a Holder can require the Company to repurchase all or a
portion of its Securities pursuant to Section 3.01 or, (B) if such Holder elects,
instead, to convert all or a portion of its Securities, such Holder will receive
Additional Shares upon conversion pursuant to Section 10.01(c), in each case,
subject to the terms and conditions set forth in each such Section.



     (c) If and only to the extent (i) a Holder timely elects to convert Securities in connection
with a Change of Control transaction described under Section 10.01(b)(2) during the period referred
to therein and (ii) 10% or more of the consideration for the Common Stock in the Change of Control
transaction consists of consideration other than common stock that is traded or scheduled to be
traded immediately following such transaction on a national securities exchange or the Nasdaq
National Market, the Company will increase the Conversion Rate for the Securities surrendered for
conversion by an additional number of shares of Common Stock (the “Additional Shares”) as described
below; provided that if the Stock Price paid in connection with such transaction is greater than
$100.00 or less than $25.99 (subject in each case to adjustment as described below), no Additional
Shares shall be issuable. No Additional Shares shall be issuable under this Section 10.01(c)
unless the Holder elects to convert the Securities in connection with such Change of Control
transaction. Notwithstanding this Section 10.01(c), if the Company elects to adjust the Conversion
Rate pursuant to Section 10.01(d), the provisions of Section 10.01(d) will apply in lieu of the
provisions of this Section 10.01(c).



     The number of Additional Shares issuable in connection with the conversion of Securities as
described in the immediately preceding paragraph will be determined by reference to the table
attached as Schedule I hereto, based on the effective date of such Change of Control transaction
and the Stock Price paid in connection with such transaction; provided that if the Stock Price is
between two Stock Price amounts in the table or such effective date is between two effective dates
in the table, the number of Additional Shares will be determined by a straight-line interpolation
between the number of Additional Shares set forth for the higher and lower Stock Price amounts and
the two dates, as applicable, based on a 365-day year. The “effective date” with respect to a
Change of Control transaction means the date that a Change of Control becomes effective.



     The Stock Prices set forth in the first row of the table in Schedule I hereto will be adjusted
as of any date on which the Conversion Rate of the Securities is adjusted pursuant to Section
10.04. The adjusted Stock Prices will equal the Stock



51









 




Prices applicable immediately prior to such adjustment, multiplied by a fraction, the
numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the
Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The
number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth
in Section 10.04.




     Notwithstanding the foregoing, in no event will the total number of shares of Common Stock
issuable upon conversion of the Securities exceed 38.4763 per $1,000 principal amount of Securities
(or 6,637,162 shares of Common Stock in the aggregate), subject to adjustments in the same manner
as the Conversion Rate as set forth in Section 10.04.



     (d) Notwithstanding the provisions of Section 10.01(c), in the case of a Public Acquirer
Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares
as described in Section 10.01(c), elect to adjust the Conversion Rate and the related Conversion
Obligation such that from and after the effective date of such Public Acquirer Change of Control,
Holders of Securities will be entitled to convert their Securities (subject to the satisfaction of
the conditions to conversion set forth in Section 10.01(a)) into a number of shares of Public
Acquirer Common Stock by multiplying the Conversion Rate in effect immediately before the Public
Acquirer Change of Control by a fraction:




     (i) the numerator of which will be (A) in the case of a share exchange, consolidation,
merger or binding share exchange, pursuant to which the Common Stock is converted into the
right to receive cash, securities or other property, the average value of all cash and any
other consideration (as determined by the Board of Directors) paid or payable per share of
Common Stock or (B) in the case of any other Public Acquirer Change of Control, the average
of the Closing Price of the Common Stock for the five consecutive Trading Days prior to but
excluding the effective date of such Public Acquirer Change of Control, and




     (ii) the denominator of which will be the average of the Closing Prices of the Public
Acquirer Common Stock for the five consecutive Trading Days prior to but excluding the
effective date of Public Acquirer Change of Control.



     “Public Acquirer Change of Control” means an event constituting a Change of Control that would
otherwise obligate the Company to increase the Conversion Rate as described in Section 10.01(c) and
the acquirer (or any entity that (x) is a directly or indirectly wholly-owned subsidiary of the
acquirer or (y) is either (A) a direct or indirect majority-owned subsidiary of the acquirer or (B)
a corporation that directly or indirectly owns a majority of the total voting power of all shares
of such acquirer’s capital stock that are entitled to vote generally in the election of directors,
in each case whose common stock has been designated by the acquirer to serve as public acquirer
common stock in the transaction) has a class of



52









 




common stock traded on a national securities exchange or quoted on the Nasdaq National Market
or which will be so traded or quoted when issued or exchanged in connection with such Change of
Control (the “Public Acquirer Common Stock”).




     Upon a Public Acquirer Change of Control, if the Company so elects, Holders may convert their
Securities (subject to the satisfaction of the conditions to conversion set forth in Section
10.01(a)) at the adjusted Conversion Rate described in the second preceding paragraph but will not
be entitled to the increased Conversion Rate described in Section 10.01(c). The Company shall
notify Holders of its election in its notice to Holders pursuant to Section 10.01(b)(2) above.
Holders may convert their Securities upon a Public Acquirer Change of Control during the period
specified in Section 10.01(b)(2). In addition, Holders can also, subject to certain conditions,
require the Company to repurchase all or a portion of their Securities as described in Section
3.01.



     After any adjustment of the Conversion Rate in connection with a Public Acquirer Change of
Control, the Conversion Rate will be subject to further similar adjustments in the event that any
of the events described in Section 10.04 occur thereafter.



     Section 10.02 . Conversion Procedure; Conversion Rate. (a) Subject to Section 10.01 and
Section 10.03, each Security shall be convertible at the office of the Conversion Agent into cash
and, if applicable, fully paid and nonassessable shares (calculated to the nearest 1/100th of a
share) of Common Stock. The conversion rate (the “Conversion Rate”) shall be initially 29.5972
shares of Common Stock for each $1,000 principal amount of Securities. The Conversion Rate shall
be adjusted in certain instances as provided in Section 10.04 hereof, but shall not be adjusted for
any accrued and unpaid Interest, or Liquidated Damages, if any. Upon conversion, no payment shall
be made by the Company with respect to any accrued and unpaid Interest. Instead, such amount shall
be deemed paid by the applicable Conversion Settlement Distribution delivered upon conversion of
any Security. In addition, no payment or adjustment shall be made in respect of dividends on the
Common Stock with a record date prior to the Conversion Date. Notwithstanding the foregoing, upon
conversion a Holder shall receive any accrued and unpaid Liquidated Damages to the Conversion Date.



     (b) Before any Holder of a Security shall be entitled to convert the same, such Holder shall
(1) in the case of Global Securities, comply with the procedures of the Depositary in effect at
that time, and in the case of Certificated Securities, surrender such Securities, duly endorsed to
the Company or in blank, at the office of the Conversion Agent, and (2) give written notice to the
Company in the form on the reverse of such Certificated Security (the “Conversion Notice”) at said
office or place that such Holder elects to convert the same and shall state in writing therein the
principal amount of Securities to be converted and the name or names (with addresses) in which such
Holder wishes the certificate or certificates for



53









 




Common Stock included in the Conversion Settlement Distribution, if any, to be registered.




     Before any such conversion, a Holder also shall pay all taxes or duties, if any, as provided
in Section 10.06 and any amount payable pursuant to Section 10.02(g).



     If more than one Security shall be surrendered for conversion at one time by the same Holder,
the number of full shares of Common Stock, if any, that shall be deliverable upon conversion as
part of the Conversion Settlement Distribution shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof to the extent permitted thereby)
so surrendered.



     (c) A Security shall be deemed to have been converted as of the close of business on the date
(the “Conversion Date”) that the Holder has complied with Section 10.02(b).



     (d) The Company will, on the Conversion Settlement Date, (i) pay the cash component (including
cash in lieu of any fraction of a share to which such Holder would otherwise be entitled) of the
Conversion Obligation determined pursuant to Section 10.03 to the Holder of a Security surrendered
for conversion, or such Holder’s nominee or nominees, and (ii) issue, or cause to be issued, and
deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees,
certificates for the number of full shares of Common Stock, if any, to which such Holder shall be
entitled as part of such Conversion Obligation. The Company shall not be required to deliver
certificates for shares of Common Stock while the stock transfer books for such stock or the
security register are duly closed for any purpose, but certificates for shares of Common Stock
shall be issued and delivered as soon as practicable after the opening of such books or security
register, and the Person or Persons entitled to receive the Common Stock as part of the applicable
Conversion Settlement Distribution upon such conversion shall be treated for all purposes as the
record holder or holders of such Common Stock, as of the close of business on the applicable
Conversion Settlement Date.



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



     (f) By delivering the amount of cash and the number of shares, if any, determined as set forth
in Section 10.03 together with a cash payment in lieu of any fractional shares to the Conversion
Agent or to the Holder or such Holder’s nominee or nominees, the Company will have satisfied in
full its Conversion Obligation with respect to such Security, and upon such delivery, accrued and



54









 




unpaid Interest, if any, with respect to such Security will be deemed to be paid in full
rather than canceled, extinguished or forfeited.




     (g) If a Securityholder delivers a Conversion Notice after the Interest Record Date for a
payment of Interest but prior to the corresponding Interest Payment Date, such Securityholder must
pay to the Company, at the time such Securityholder surrenders Securities for conversion, an amount
equal to the Interest (excluding, for the avoidance of doubt, Liquidated Damages, if any), that has
accrued and will be paid on the related Interest Payment Date. The preceding sentence shall not
apply if (1) the Company has specified a Change of Control Repurchase Date during such period or
(2) if any overdue Interest exists at the time of conversion with respect to the Securities
converted.



     Section 10.03 . Payment Upon Conversion. (a) Upon conversion of Securities, the Company
shall deliver to Holders surrendering Securities for conversion, for each $1,000 principal amount
of Securities, a settlement amount (the “Conversion Settlement Distribution”) on the Conversion
Settlement Date consisting of:




     (i) cash amount (the “Cash Amount”) equal to the lesser of $1,000 or the Conversion
Value; and




     (ii) to the extent the Conversion Value exceeds $1,000, a number of shares of Common
Stock equal to the sum of, for each day of the Cash Settlement Period described below:




     (A) 5% of the difference between




     (1) the product of the Conversion Rate (plus any Additional Shares) and the
Closing Price of Common Stock for such date, and




     (2) $1,000, divided by




     (B) the Closing Price of the Common Stock for such day.



     The Company shall not issue fractional shares of Common Stock upon conversion of the
Securities. Instead, the Company shall pay the cash value of such fractional shares based upon the
Closing Price of the Common Stock on the Trading Day immediately preceding the Conversion Date.



     The “Conversion Value” means the product of (1) the Conversion Rate in effect (plus any
Additional Shares as described under Section 10.01(c)) and (2) the average of the Closing Prices of
the Common Stock for the Trading Days during the Cash Settlement Period.



55









 





     The “Cash Settlement Period” with respect to any Securities means the 20 consecutive Trading
Days beginning on the second Trading Day after the Conversion Date for those Securities.



     Settlement (in cash and/or shares) will occur on (1) the third Business Day following the
final day of such Cash Settlement Period and (2) with respect to any Additional Shares which may be
issuable, the later of (A) the fifth Business Day following the effective date of any Change of
Control transaction and the (B) the third Business Day immediately following the Cash Settlement
Period.



     (b) If a Holder tenders Securities for conversion and the Conversion Value is being determined
at a time when the Securities are convertible into Reference Property, the Conversion Value of each
Security shall be determined based on the kind and amount of such Reference Property and the value
thereof during the Cash Settlement Period. Settlement of Securities tendered for conversion after
the effective date of any transaction giving rise to Reference Property shall be as set forth
above.



     Section 10.04. Adjustment of Conversion Rate. The Conversion Rate shall
be adjusted from time to time by the Company as follows:



     (a) In case the Company shall hereafter pay a dividend or make a distribution to all holders
of the outstanding Common Stock in shares of Common Stock, the Conversion Rate shall be increased
so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at
the opening of business on the date following the date fixed for the determination of shareholders
entitled to receive such dividend or other distribution by a fraction,




     (i) the numerator of which shall be the sum of (A) the number of shares of Common
Stock outstanding at the close of business on the date fixed for such determination plus
(B) the total number of shares of Common Stock constituting the dividend or distribution;
and




     (ii) the denominator of which shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination,


such increase to become effective immediately after the opening of business on the day following
the date fixed for such determination. If any dividend or distribution of the type described in
this Section 10.04(a) is declared but not so paid or made, the Conversion Rate shall again be
adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had
not been declared.




     (b) In case the Company shall issue rights or warrants (other than pursuant to any dividend
reinvestment or share purchase plans) to all holders of its outstanding shares of Common Stock
entitling them (for a period expiring within 60 days after the date of such distribution) to
purchase shares of Common Stock at



56









 




a price per share less than the Closing Price on the date fixed for determination of
shareholders entitled to receive such rights or warrants, the 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 date fixed for determination of shareholders entitled to receive such
rights or warrants by a fraction,





     (i) the numerator of which shall be the sum of (A) the number of shares of Common
Stock outstanding on the date fixed for determination of shareholders entitled to receive
such rights or warrants plus (B) the total number of additional shares of Common Stock
offered for subscription or purchase, and




     (ii) the denominator of which is the sum of (A) the number of shares of Common Stock
outstanding on the date fixed for determination of shareholders entitled to receive such
rights or warrants plus (B) the total number of additional shares of Common Stock that the
aggregate offering price of the total number of shares of Common Stock offered for
subscription or purchase would purchase at the Current Market Price of the Common Stock on
such date.



     Such adjustment shall be successively made whenever any such rights or warrants are issued,
and shall become effective immediately after the opening of business on the day following the date
fixed for determination of shareholders entitled to receive such rights or warrants. To the extent
that shares of Common Stock are not delivered after the expiration of such rights or warrants, the
Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of
only the number of shares of Common Stock actually delivered. In the event that such rights or
warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate
that would then be in effect if such date fixed for the determination of shareholders entitled to
receive such rights or warrants had not been fixed. In determining whether any rights or warrants
entitle the holders to subscribe for or purchase shares of Common Stock at less than such Closing
Price, 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 or warrants and any
amount payable on exercise or conversion thereof, the value of such consideration, if other than
cash, to be determined by the Board of Directors.



     (c) In case outstanding shares of Common Stock shall be subdivided into a greater number of
shares of Common Stock, the Conversion Rate in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be proportionately increased,
and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number
of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day
following the day upon which such combination becomes effective shall



57









 




be proportionately reduced, such increase or reduction, as the case may be, to become
effective immediately after the opening of business on the day following the day upon which such
subdivision or combination becomes effective.




     (d) In case the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock shares of any class of Capital Stock of the Company or evidences of its indebtedness
or assets, including securities (but excluding any rights or warrants referred to in Section
10.04(b) and excluding any dividend or distribution (x) paid exclusively in cash or (y) referred to
in Section 10.04(a)) (any of the foregoing hereinafter in this Section 10.04(d) called the
“Distributed Assets”), then, in each such case, the Conversion Rate shall be increased so that the
same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the
Record Date with respect to such distribution by a fraction,




     (i) the numerator of which shall be the Current Market Price per share of the Common
Stock on such Record Date; and




     (ii) the denominator of which shall be the Current Market Price per share of the
Common Stock on the Record Date less the Fair Market Value (as determined by the Board of
Directors, whose determination in good faith shall be conclusive, and described in a
resolution of the Board of Directors) on the Record Date of the portion of the Distributed
Assets so distributed applicable to one share of Common Stock,


such adjustment to become effective immediately prior to the opening of business on the day
following such Record Date; provided, however, that in the event (1) the then Fair Market Value (as
so determined) of the portion of the Distributed Assets so distributed applicable to one share of
Common Stock is equal to or greater than the Current Market Price of the Common Stock on such
Record Date or (2) the Current Market Price of Common Stock on the Record Date exceeds the then
Fair Market Value (as so determined) of the portion of the Distributed Assets so distributed
applicable to one share of Common Stock by less than $1.00, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder shall have the right to receive upon
conversion the amount of Distributed Assets such Holder would have received had such holder
converted each Security on the Record Date for such distribution. In the event that such dividend
or distribution is not so paid or made, the Conversion Rate shall be adjusted to be the Conversion
Rate that would then be in effect if such dividend or distribution had not been declared. If the
Board of Directors determines the Fair Market Value of any distribution for purposes of this
Section 10.04(d) by reference to the actual or when issued trading market for any securities, it
must in doing so consider the prices in such market over the same period used in computing the
Current Market Price of the Common Stock.




     Rights or warrants distributed by the Company to all holders of Common Stock (including any
Rights pursuant to the Rights Agreement) entitling the holders



58









 




thereof to subscribe for or purchase shares of the Company’s Capital Stock (either initially
or under certain circumstances), which rights or warrants: (i) are deemed to be transferred with
such shares of Common Stock, until the occurrence of a specified event or events (“Trigger Event”);
(ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock,
shall be deemed not to have been distributed for purposes of this Section 10.04 (and no adjustment
to the Conversion Rate under this Section 10.04 will be required) until the occurrence of the
earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed
and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this
Section 10.04(d). If any such right or warrant, including any such existing rights or warrants
distributed prior to the date of this Indenture, are subject to events, upon the occurrence of
which such rights or warrants become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the date of the occurrence of any and each such event shall be
deemed to be the date of distribution and Record Date with respect to new rights or warrants with
such rights (and a termination or expiration of the existing rights or warrants without exercise by
any of the holders thereof). In addition, in the event of any distribution (or deemed distribution)
of rights or warrants, or any Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto that was counted for purposes of calculating a distribution amount
for which an adjustment to the Conversion Rate under this Section 10.04 was made, (1) in the case
of any such rights or warrants that shall all have been redeemed or repurchased without exercise by
any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it
were a cash distribution, equal to the per share redemption or repurchase price received by a
holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had
retained such rights or warrants), made to all holders of Common Stock as of the date of such
redemption or repurchase, and (2) in the case of such rights or warrants that shall have expired or
been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as
if such rights and warrants had not been issued.




     No adjustment of the Conversion Rate shall be made pursuant to this Section 10.04(d) in
respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent
that such rights or warrants are actually distributed, or reserved by the Company for distribution
to holders of Securities upon conversion by such holders of Securities to Common Stock.



     For purposes of this Section 10.04(d) and Section 10.04(a) and (b), any dividend or
distribution to which this Section 10.04(d) is applicable that also includes shares of Common
Stock, or rights 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 evidences of indebtedness, assets or
shares of capital stock other than such shares of Common Stock or rights or warrants (and any
Conversion Rate adjustment required by this Section 10.04(d) with respect to such



59









 




dividend or distribution shall then be made) immediately followed by (2) a dividend or
distribution of such shares of Common Stock or such rights or warrants (and any further Conversion
Rate adjustment required by Section 10.04(a) and (b) with respect to such dividend or distribution
shall then be made), except (A) the Record Date of such dividend or distribution shall be
substituted as “the date fixed for the determination of shareholders entitled to receive such
dividend or other distribution”, “the date fixed for the determination of shareholders entitled to
receive such rights or warrants” and “the date fixed for such determination” within the meaning of
Section 10.04(a) and (b), and (B) any shares of Common Stock included in such dividend or
distribution shall not be deemed “outstanding at the close of business on the date fixed for such
determination” within the meaning of Section 10.04(a).




     If any Distributed Assets requiring any adjustment pursuant to this Section 10.04(d) consists
of the Capital Stock, or similar equity interests in, a Subsidiary or other business unit of the
Company, the Conversion Rate in effect immediately before the close of business on the Record Date
fixed for determination of shareholders entitled to receive the distribution shall instead be
increased by multiplying the Conversion Rate then in effect by a fraction, (A) the numerator of
which is the sum of (1) the average of the Closing Prices of such distributed security for the 10
Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date on the
New York Stock Exchange or such other national or regional exchange or market on which the
securities are then listed or quoted, plus (2) the average of the Closing Prices of the Common
Stock over the same Trading Day period and (B) the denominator of which is such average of the
Closing Prices of the Common Stock.



     (e) In case the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock cash (an “Extraordinary Cash Dividend”) (excluding any dividend or distribution in
connection with the liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary), then, in such case, the 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 Extraordinary Cash Dividend by a fraction,




     (i) the numerator of which shall be the Current Market Price of the Common Stock on
such Record Date, and




     (ii) the denominator of which shall be such Current Market Price of the Common Stock
minus the amount per share of such dividend or the amount of cash so distributed applicable
to one share of Common Stock,


such adjustment to be effective immediately prior to the opening of business on the day following
such Record Date; provided, however, that in the event the portion of the cash so distributed
applicable to one share of Common Stock is equal to or




60









 







greater than the Current Market Price of the Common Stock on such Record Date, in lieu of the
foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to
receive upon conversion the amount of cash such Holder would have received had such Holder
converted each Security on such Record Date. In the event that such dividend or distribution is not
so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such dividend or distribution had not been declared.




     (f) In case a tender or exchange offer made by the Company or any Subsidiary for all or any
portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the
expiration thereof) shall require the payment to shareholders of consideration per share of Common
Stock having a Fair Market Value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors) that as of the last
time (the “Expiration Time”) tenders or exchanges may be made pursuant to such tender or exchange
offer (as it may be amended) exceeds the Closing Price of the Common Stock on the Trading Day next
succeeding the Expiration Time, the 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
Expiration Time by a fraction




     (i) the numerator of which shall be the sum of (x) the Fair Market Value (determined
as aforesaid) of the aggregate consideration payable to shareholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange offer) of
all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the “Purchased
Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any
Purchased Shares) at the Expiration Time and the Closing Price of the Common Stock on the
Trading Day next succeeding the Expiration Time, and




     (ii) the denominator of which shall be the product of the number of shares of Common
Stock outstanding (including any Purchased Shares) at the Expiration Time multiplied by
Closing Price of the Common Stock on the Trading Day next succeeding the Expiration Time,


such adjustment to become effective immediately prior to the opening of business on the day
following the Expiration Time. In the event that the Company is obligated to purchase shares
pursuant to any such tender or exchange offer, but the Company is permanently prevented by
applicable law from effecting any such purchases or all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if
such tender or exchange offer had not been made.




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     (g) In case of a tender or exchange offer made by a Person other than the Company or any
Subsidiary for an amount that, if accepted, would increase the offeror’s ownership of Common Stock
to more than twenty-five percent (25%) of the Common Stock outstanding and that involves the
payment by such Person of consideration per share of Common Stock having a Fair Market Value (as
determined by the Board of Directors, whose determination shall be conclusive, and described in a
resolution of the Board of Directors) that as of the last time (the “Offer Expiration Time”)
tenders or exchanges may be made pursuant to such tender or exchange offer (as it shall have been
amended) exceeds the Current Market Price of the Common Stock on the first Trading Day after the
Offer Expiration Time, and in which, as of the Offer Expiration Time the Board of Directors is not
recommending rejection of the offer, the 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
Offer Expiration Time by a fraction




     (i) the numerator of which shall be the sum of (x) the Fair Market Value (determined
as aforesaid) of the aggregate consideration payable to shareholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange offer) of
all shares of Common Stock validly tendered or exchanged and not withdrawn as of the Offer
Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to
as the “Accepted Purchased Shares”) and (y) the product of the number of shares of Common
Stock outstanding (less any Accepted Purchased Shares) at the Offer Expiration Time and the
Closing Price of the Common Stock on the first Trading Day after the Offer Expiration Time,
and




     (ii) the denominator of which shall be the product of the number of shares of Common
Stock outstanding (including any Accepted Purchase Shares) at the Offer Expiration Time
multiplied by the Closing Price of the Common Stock on the first Trading Day after the
Offer Expiration Time,


such adjustment to become effective immediately prior to the opening of business on the day
following the Offer Expiration Time. In the event that such Person is obligated to purchase shares
pursuant to any such tender or exchange offer, but such Person is permanently prevented by
applicable law from effecting any such purchases or all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if
such tender or exchange offer had not been made. Notwithstanding the foregoing, the adjustment
described in this Section 10.04(g) shall not be made if, as of the Offer Expiration Time, the
offering documents with respect to such offer disclose a plan or intention to cause the Company to
engage in any transaction described in Section 10.05.




     (h) The Company may make such increases in the Conversion Rate, in addition to those required
by this Section 10.04 as the Board of Directors considers



62









 




to be advisable to avoid or diminish any income tax to holders of Common Stock resulting from
any stock distribution; provided, however, that such increase in the Conversion Rate shall not
adversely affect the interests of the Holders of Securities (after taking into account tax and
other consequences of such increase).




     To the extent permitted by applicable law and the listing requirements of the New York Stock
Exchange or any exchange on which the Common Stock is then listed, 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) 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 mail to holders of record of the Securities a notice of the
increase at least fifteen (15) days prior to the date the increased Conversion Rate takes effect,
and such notice shall state the increased Conversion Rate and the period during which it will be in
effect.



     (i) All calculations under this Article 10 shall be made by the Company and shall be made to
the nearest cent or to the nearest one-ten thousandth of a share, as the case may be, with one
half-cent and 0.00005 of a share, respectively, being rounded upward. No adjustment need be made
for:




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




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




     (iii) the issuance of any shares of Common Stock pursuant to any option, warrant,
right or exercisable, exchangeable or convertible security not described in (ii) above
outstanding as of the date the Securities were first issued,




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




     (v) accrued and unpaid Interest, including Liquidated Damages, if any.




To the extent the Securities become convertible into cash, assets, property or securities
(other than Capital Stock of the Company), no adjustment need be made thereafter as to the
cash, assets, property or such securities.



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     (j) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and any Conversion Agent other than the Trustee an Officer’s Certificate
setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have
received such Officer’s Certificate, the Trustee shall not be deemed to have knowledge of any
adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has
knowledge is still in effect. Promptly after delivery of such certificate, the Company shall
prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion
Rate and the date on which each adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Rate to the holder of each Security at his last address appearing on
the Security register provided for in Section 2.03 of this Indenture, within twenty (20) days after
execution thereof. Failure to deliver such notice shall not affect the legality or validity of any
such adjustment.



     (k) In any case in which this Section 10.04 provides that an adjustment shall become effective
immediately after (1) a record date or Record Date for an event, (2) the date fixed for the
determination of shareholders entitled to receive a dividend or distribution pursuant to Section
10.04(a), (3) a date fixed for the determination of shareholders entitled to receive rights or
warrants pursuant to Section 10.04(b), or (4) the Expiration Time for any tender or exchange offer
pursuant to Section 10.04(f), or (5) the Offer Expiration Time for a tender offer or exchange offer
pursuant to Section 10.04(g) (each a “Determination Date”), the Company may elect to defer until
the occurrence of the relevant Adjustment Event (as hereinafter defined) (x) issuing to the Holder
of any Security converted after such Determination Date and before the occurrence of such
Adjustment Event, the additional shares of Common Stock or other securities issuable upon such
conversion by reason of the adjustment required by such Adjustment Event over and above the Common
Stock issuable upon such conversion before giving effect to such adjustment and (y) paying to such
Holder any amount in cash in lieu of any fraction pursuant to Section 10.04(a). For purposes of
this Section 10.04(k), the term “Adjustment Event” shall mean:




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




     (ii) in any case referred to in clause (2) hereof, the date any such dividend or
distribution is paid or made,




     (iii) in any case referred to in clause (3) hereof, the date of expiration of such
rights or warrants, and




     (iv) in any case referred to in clause (4) or clause (5) hereof, the date a sale or
exchange of Common Stock pursuant to such tender or exchange offer is consummated and
becomes irrevocable.



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     (l) For purposes of this Section 10.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company or any Subsidiary but
shall include shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.



     Section 10.05. Effect of Reclassification, Consolidation, Merger or Sale.
(a) If any of the following events occur, namely (i) any reclassification or change of the
outstanding shares of Common Stock (other than a subdivision or combination to which Section
10.04(c) applies), (ii) any consolidation, merger, binding share exchange or combination of the
Company with another Person, or (iii) any sale or conveyance of all or substantially all the
properties and assets of the Company to any other Person, in each case as a result of which holders
of Common Stock shall be entitled to receive Reference Property with respect to or in exchange for
such Common Stock, then the Company or the successor or purchasing Person, as the case may be,
shall execute with the Trustee a supplemental indenture (which shall comply with the Trust
Indenture Act as in force at the date of execution of such supplemental indenture) providing for
the conversion and settlement of the Securities as set forth in this Indenture. Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Article 10. If, in the case of any such reclassification,
change, merger, consolidation, binding share exchange, combination, sale or conveyance, the
Reference Property receivable thereupon by a holder of Common Stock includes shares of stock or
other securities and assets of a corporation other than the successor or purchasing corporation, as
the case may be, in such reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the interests of the
Holders of the Securities as the Board of Directors shall reasonably consider necessary by reason
of the foregoing.



     (b) The Conversion Obligation with respect to each $1,000 principal amount of Securities
converted following the effective date of any such transaction, shall be calculated (as provided in
clause (c) below) based on the Reference Property assuming the Holders did not exercise their
rights of election, if any, as to the kind or amount of Reference Property receivable upon such
consolidation, merger, binding share exchange, sale or conveyance (provided that, if the Reference
Property receivable upon such consolidation, merger, binding share exchange, sale or conveyance is
not the same for each share of Common Stock in respect of which such rights of election shall not
have been exercised (“Non-Electing Share”), then for the purposes of this Section 10.05 the
Reference Property receivable upon such consolidation, merger, binding share exchange, sale or
conveyance for each Non-Electing Share shall be deemed to be the kind and amount so receivable per
share by a plurality of the Non-Electing Shares).



65









 





     (c) The Conversion Obligation in respect of any Securities converted following the effective
date of any such transaction shall be computed in the same manner as set forth in Section 10.03(a),
except that (1) the Cash Settlement Period shall be the 20 Trading Day period beginning on the
Trading Day after the receipt of the Conversion Notice (or, in the event the Company receives the
Conversion Notice on the Business Day prior to the Stated Maturity, the 20 Trading Day period
beginning on the Trading Day after the Stated Maturity), and (2) if the Securities become
convertible into Reference Property, the Closing Price of the Common Stock shall be deemed to equal
the sum of (A) 100% of the value of any Reference Property consisting of cash received per share of
Common Stock, (B) the Closing Price of any Reference Property received per share of Common Stock
consisting of securities that are traded on a U.S. national securities exchange or approved for
quotation on the Nasdaq National Market and (C) the Fair Market Value of any other Reference
Property received per share, as determined by three independent nationally recognized investment
banks selected by the Company for this purpose. Settlement (in cash and/or shares) will occur on
the third Business Day following the final day of such Cash Settlement Period, provided, that any
amount of the Conversion Settlement Distribution to be delivered in shares of Common Stock shall be
paid in Reference Property rather than shares of Common Stock. If the Reference Property includes
more than one kind of property, the amount of Reference Property of each kind to be delivered shall
be in the proportion that the value of the Reference Property (as calculated pursuant to Section
10.03(a)) of such kind bears to the value of all such Reference Property. If the foregoing
calculations would require the Company to deliver a fractional share or unit of Reference Property
to a Holder of Securities being converted, the Company shall deliver cash in lieu of such
fractional share or unit based on the value of the Reference Property.



     (d) The Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Holder of Securities, at its address appearing on the Security register provided for
in Section 2.03 of this Indenture, within twenty (20) days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of such supplemental indenture.



     (e) The above provisions of this Section shall similarly apply to successive
reclassifications, changes, consolidations, mergers, statutory share exchanges, combinations, sales
and conveyances.



     If this Section 10.05 applies to any event or occurrence, Section 10.04 shall not apply.



     Section 10.06. Taxes on Shares Issued. The issue of stock certificates on
conversions of Securities shall be made without charge to the converting Holder for any tax in
respect of the issue thereof, except for applicable withholding, if any. The Company shall not,
however, be required to pay any tax or duty which may be payable in respect of any transfer
involved in the issue and delivery of stock in any name other than that of the Holder of any
Securities converted, and the Company



66









 




shall not be required to issue or deliver any such stock certificate unless and until the
Person or Persons 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 10.07. Reservation of Shares, Shares to Be Fully Paid; Compliance
with Governmental Requirements; Listing of Common Stock. (a) The Company shall provide, free from
preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient
shares of Common Stock to provide for the conversion of the Securities from time to time as such
Securities are presented for conversion.



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



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




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



     Section 10.08. Responsibility of Trustee. The Trustee and any other
Conversion Agent shall not at any time be under any duty or responsibility to any holder of
Securities to determine the Conversion Rate or whether any facts exist which may require any
adjustment of the Conversion Rate, or with respect to the nature or extent or calculation of any
such adjustment when made, or with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent
shall not be accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property, which may at any time be issued or
delivered upon the conversion of any Security; and the Trustee and any other Conversion Agent make
no representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure



67









 




of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates
or other securities or property or cash upon the surrender of any Security for the purpose of
conversion or to comply with any of the duties, responsibilities or covenants of the Company
contained in this Article 10. Without limiting the generality of the foregoing, neither the Trustee
nor any Conversion Agent shall be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture entered into pursuant to Section 10.05 relating
either to the kind or amount of shares of stock or securities or property (including cash)
receivable by Holders upon the conversion of their Securities after any event referred to in such
Section 10.05 or to any adjustment to be made with respect thereto, but, subject to the provisions
of Section 7.01, may accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officer’s Certificate (which the Company shall be obligated
to file with the Trustee prior to the execution of any such supplemental indenture) with respect
thereto.




     Section 10.09 . Notice to Holders Prior to Certain Actions. In case:




     (a) the Company shall declare a dividend (or any other distribution) on its Common
Stock that would require an adjustment in the Conversion Rate pursuant to Section 10.04; or




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




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




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


the Company shall cause to be filed with the Trustee and to be mailed to each Holder of Securities
at his address appearing on the register provided for in Section 2.03 of this Indenture, as
promptly as possible but in any event at least ten (10) days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution of rights or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to such dividend,
distribution or rights are to be determined, or (y) the date on which such reclassification,
consolidation, merger, or statutory share exchange, sale, transfer, dissolution, liquidation or
winding up is expected to become effective or occur, and the date as of which it is




68









 







expected that holders of Common Stock of record shall be entitled to exchange their Common Stock
for securities or other property deliverable upon such reclassification, consolidation, merger, or
statutory share exchange, sale, transfer, dissolution, liquidation or winding up. Failure to give
such notice, or any defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, or statutory share exchange, sale, transfer,
dissolution, liquidation or winding up.




     Section 10.10 . Shareholder Rights Plan. To the extent that the Company has a rights plan
(including without limitation, the Rights Agreement) in effect upon conversion of the Securities
into Common Stock, a Holder who converts securities will receive, in addition to the Common Stock,
the rights under the rights plan, unless prior to any conversion, the rights have separated from
the Common Stock, in which case the Conversion Rate will be adjusted at the time of separation as
if the Company distributed to all holders of Common Stock, shares of the Company’s capital stock,
evidences of indebtedness or assets as described in Section 10.04(d) above, subject to readjustment
in the event of the expiration, termination or redemption of such rights. In lieu of any such
adjustment, the Company may amend such applicable shareholder rights agreement to provide that upon
conversion of the Securities the holders will receive, in addition to the Common Stock issuable
upon such conversion, the rights which would have attached to such Common Stock if the rights had
not become separated from the Common Stock under such applicable shareholder rights agreement.



     Section 10.11 . Unconditional Right of Holders to Convert. Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right, which is absolute and
unconditional, to convert its Security 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.



ARTICLE 11

Miscellaneous




     Section 11.01 . Trust Indenture Act Controls. If any provision of this Indenture limits,
qualifies, or conflicts with another provision which is required to be included in this Indenture
by the TIA, the required provision of the TIA shall control.



     Section 11.02 . Notices. Any request, demand, authorization, notice, waiver, consent or
communication shall be in writing and delivered in person or mailed by first-class mail, postage
prepaid, addressed as follows or transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile numbers:



69









 




if to the Company:



EnPro Industries, Inc.

5605 Carnegie Blvd.

Charlotte, North Carolina 28209

Attn: General Counsel

Tel: (704) 731-1526

Facsimile: (704) 731-1500



if to the Trustee:



Wachovia Bank, National Association

401 S. Tryon Street, 12th Floor, NC1179

Charlotte, NC 28288-1179

Attn: Corporate Trust Services

Tel: (704) 374-6914

Fax: (704) 383-7316




     The Company or the Trustee by notice given to the other in the manner provided above may
designate additional or different addresses for subsequent notices or communications.



     Any notice or communication given to a Securityholder shall be delivered to the
Securityholder, in accordance with the procedures of the Registrar or by first-class mail, postage
prepaid, at the Securityholder’s address as it appears on the registration books of the Registrar
and shall be sufficiently given if so mailed within the time prescribed.



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



     If the Company mails a notice or communication to the Securityholders, it shall mail a copy to
the Trustee and each Registrar, Paying Agent, Conversion Agent or co-registrar.



     Section 11.03 . Communication by Holders with Other Holders. Securityholders may communicate
pursuant to TIA Section 312(b) with other Securityholders with respect to their rights under this
Indenture or the Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section 312(c).



     Section 11.04 . 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:



70









 






     (1) an Officer’s Certificate stating that, in the opinion of the signer, all
conditions precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and




     (2) an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.



     Section 11.05 . Statements Required in Certificate or Opinion. Each Officer’s Certificate or
Opinion of Counsel with respect to compliance with a covenant or condition provided for in this
Indenture shall include:




     (1) a statement that each person making such Officer’s Certificate or Opinion of
Counsel has read such covenant or condition;




     (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such Officer’s Certificate or Opinion of
Counsel are based;




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




     (4) a statement that, in the opinion of such person, such covenant or condition has
been complied with.



     Section 11.06 . Separability Clause. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.



     Section 11.07 . Rules by Trustee, Paying Agent, Conversion Agent and Registrar. The Trustee
may make reasonable rules for action by or a meeting of Securityholders. The Registrar, the
Conversion Agent and the Paying Agent may make reasonable rules for their functions.



     Section 11.08 . Legal Holidays. 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, and, if the action to be taken on
such date is a payment in respect of the Securities, no interest shall accrue with respect to such
payment for the intervening period.



     Section 11.09 . Governing Law. THIS INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
RULES THEREOF.



71









 





     Section 11.10 . No Recourse Against Others. A director, officer, employee or shareholder, as
such, of the Company shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder shall waive and
release all such liability. The waiver and release shall be part of the consideration for the
issue of the Securities.



     Section 11.11 . Successors. All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.



     Section 11.12 . Multiple Originals. 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. One signed copy is enough to prove this Indenture.



72









 





     IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed this Indenture on
behalf of the respective parties hereto as of the date first above written.



	 	 	 	 	 
	 	 	ENPRO INDUSTRIES, INC.
	 
	 	 	 	 
	 

	 	By:
	 	  /s/ Ernest F. Schaub
	 

	 	 	 	 
	 

	 	 	 	Name: Ernest F. Schaub
	 

	 	 	 	Title: President
	 
	 	 	 	 
	 

	 	By:
	 	  /s/ William Dries
	 

	 	 	 	 
	 

	 	 	 	Name: William Dries
	 

	 	 	 	Title: Chief Financial Officer
	 
	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION, As Trustee
	 
	 	 	 	 
	 

	 	By:
	 	  /s/ Allison Lancaster-Poole
	 

	 	 	 	 
	 

	 	 	 	Name: Allison Lancaster-Poole
	 

	 	 	 	Title: Vice President







73










 






EXHIBIT A




[FORM OF FACE OF GLOBAL SECURITY]




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




          TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO NOMINEES OF THE DEPOSITORY
TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.




          THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT OF 1933”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:





	 	(1)	 	REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT OF 1933;
	 
	 	(2)	 	AGREES THAT IT WILL NOT, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION
DATE”) THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THE 3.9375%
CONVERTIBLE SENIOR DEBENTURES AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF
THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), RESELL
OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF SUCH SECURITY EXCEPT (A) TO ENPRO INDUSTRIES, INC. OR ANY




A-1









 






	 	 	 	SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT OF 1933, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE), OR (D) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OF 1933
AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND
	 
	 	(3)	 	AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE) A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.





          The foregoing legend may be removed from this Security upon the earlier of the Resale
Restriction Termination Date or the transfer of the Securities pursuant to clause 2(C) or 2(D)
above.




A-2









 








ENPRO INDUSTRIES, INC.




3.9375% Convertible Senior Debentures Due 2015




	 	 	 
	CUSIP: 29355XAA5

	 	 
	ISSUE DATE: October 26, 2005

	 	Principal Amount: $172,500,000
	No. R-1

	 	 






          ENPRO INDUSTRIES, INC., a North Carolina corporation, promises to pay to Cede & Co. or
registered assigns, the principal amount of One Hundred Seventy-Two Million Five Hundred Thousand
Dollars, on October 15, 2015.




          Interest Rate: 3.9375% per year.




          Interest Payment Dates: April 15 and October 15 of each year, commencing April 15, 2006.




          Interest Record Date: April 1 and October 1 of each year.




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




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          IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.




	 	 	 	 	 
	Dated: October 26, 2005	 	ENPRO INDUSTRIES, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






TRUSTEE’S CERTIFICATE OF AUTHENTICATION




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Trustee, certifies that this is one

of the Securities referred to in the

within-mentioned Indenture.




By                                                             

Authorized Signatory




Dated: October 26, 2005




A-4









 





[FORM OF REVERSE OF GLOBAL SECURITY]




3.9375% Convertible Senior Debentures Due 2015




     This Security is one of a duly authorized issue of 3.9375% Convertible Senior Debentures Due
2015 (the “Securities”) of EnPro Industries, Inc., a North Carolina corporation (including any
successor corporation under the Indenture hereinafter referred to, the “Company”), issued under an
Indenture, dated as of October 26, 2005 (the “Indenture”), between the Company and Wachovia Bank,
National Association, as trustee (the “Trustee”). The terms of the Security include those stated
in the Indenture, those made part of the Indenture by reference to the Trust Indenture Act of 1939,
as amended (“TIA”), and those set forth in this Security. This Security is subject to all such
terms, and Holders are referred to the Indenture and the TIA 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
Security and the terms of the Indenture, the terms of the Indenture shall control. Capitalized
terms used but not defined herein have the meanings assigned to them in the Indenture unless
otherwise indicated.



1. Interest.




     The Securities shall bear interest on the principal amount thereof at a rate of 3.9375% per
year. The Company shall pay Liquidated Damages, if any, as set forth in Section 4.07 of the
Indenture and the Registration Rights Agreement.



     Interest will be payable semi-annually in arrears on each Interest Payment Date to Holders at
the close of business on the preceding Interest Record Date. Interest will be computed on the
basis of a 360-day year comprised of twelve 30 day months.



     The Company will pay Interest to the Securityholder of record on the Interest Record Date even
if the Securityholders elect to require the Company to repurchase the Securities on a date that is
after an Interest Record Date but on or prior to the corresponding Interest Payment Date. In that
instance, the Company will pay accrued and unpaid Interest on the Securities being repurchased to,
but not including, the Change of Control Repurchase Date, to the Securityholder of record on the
Interest Record Date.



     If the principal amount of any Security, or any accrued and unpaid Interest, or Liquidated
Damages, if any, are not paid when due (whether upon acceleration pursuant to Section 6.02 of the
Indenture, upon the date set for payment of the Change of Control Repurchase Price pursuant to
Section 4 hereof, upon the Stated Maturity of the Securities, upon the Interest Payment Dates or
upon the Liquidated Damages Payment Dates as defined in the Registration Rights Agreement), then in
each such case the overdue amount shall, to the extent permitted by law, bear cash interest at the
rate of 3.9375% per annum,



A-5









 




compounded semiannually, which interest shall accrue from the date such overdue amount was
originally due to the date payment of such amount, including interest thereon, has been made or
duly provided for. All such interest shall be payable in cash on demand but if not so demanded
shall be paid quarterly to the Holders on the last day of each quarter.




2. Method of Payment.




     Except as provided below, the Company shall pay Interest, including Liquidated Damages, if
any, on (i) Global Securities, to DTC in immediately available funds, (ii) any Certificated
Security having an aggregate principal amount of $5,000,000 or less, by check mailed to the Holder
of such Security and (iii) any Certificated Security having an aggregate principal amount of more
than $5,000,000, by wire transfer in immediately available funds if requested by the Holder of any
such Security at least five business days prior to the relevant Interest Payment Date.



     At Stated Maturity, the Company will pay Interest on Certificated Securities at the Company’s
office or agency maintained for that purpose, which initially shall be the office or agency of the
Trustee located at 401 S. Tryon Street, 12th Floor, Charlotte, NC 28288.



     Subject to the terms and conditions of the Indenture, the Company will make payments in cash
in respect of Change of Control Repurchase Prices and at Stated Maturity to Holders who surrender
Securities to a Paying Agent to collect such payments in respect of the Securities. The Company
will pay cash amounts in money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Company may make such cash payments by check
payable in such money.



3. Indenture.




     The Securities are general unsecured obligations of the Company limited to $172,500,000
aggregate principal amount. The Indenture does not limit other indebtedness of the Company,
secured or unsecured.



4. Purchase By the Company at the Option of the Holder.




     At the option of the Holder and subject to the terms and conditions of the Indenture, the
Company shall become obligated to repurchase the Securities held by such Holder after the
occurrence of a Change of Control for a Change of Control Repurchase Price equal to the principal
amount of those Securities plus accrued and unpaid Interest, and Liquidated Damages, if any, on
those Securities up to, but not including, the Change of Control Repurchase Date.



A-6









 





     Holders have the right to withdraw any Change of Control Repurchase Notice, as the case may
be, by delivering to the Paying Agent a written notice of withdrawal in accordance with the
provisions of the Indenture.



     If cash sufficient to pay the Change of Control Repurchase Price, as the case may be, of all
Securities or portions thereof to be purchased as of the Change of Control Repurchase Date is
deposited with the Paying Agent, Interest, and Liquidated Damages, if any, will cease to accrue on
such Securities (or portions thereof) on and following such Change of Control Repurchase Date, and
the Holder thereof shall have no other rights as such other than the right to receive the Change of
Control Repurchase Price upon surrender of such Security.



5. Conversion.




     Subject to the occurrence of certain events and in compliance with the provisions of the
Indenture (including, without limitation, the conditions to conversion of this Security set forth
in Section 10.01 thereof), a Holder is entitled, at such Holder’s option, to convert the Holder’s
Security (or any portion of the principal amount thereof that is $1,000 or an integral multiple of
$1,000), into cash and, if applicable, fully paid and nonassessable shares of Common Stock at the
Conversion Rate in effect at the time of conversion.



     The Company will notify Holders of any event triggering the right to convert the Securities as
specified in the Indenture.



     A Security in respect of which a Holder has delivered a Change of Control Repurchase Notice
exercising the option of such Holder to require the Company to purchase such Security, may be
converted only if such Change of Control Repurchase Notice is withdrawn in accordance with the
terms of the Indenture.



     The initial Conversion Rate is 29.5972 shares of Common Stock per $1,000 principal amount,
subject to adjustment in certain events described in the Indenture. The Conversion Rate shall not
be adjusted for any accrued and unpaid Interest, or accrued and unpaid Liquidated Damages, if any.
Upon conversion, no payment shall be made by the Company with respect to accrued and unpaid
Interest, if any. Instead, such amount shall be deemed paid by cash and the shares of Common
Stock, if any, delivered upon conversion of any Security. A Holder shall receive, however, accrued
and unpaid Liquidated Damages, if any. In addition, no payment or adjustment shall be made in
respect of dividends on the Common Stock, except as set forth in the Indenture.



     In addition, following certain corporate transactions as set forth in Section 10.01(b) of the
Indenture that constitute a Change of Control and where 10% or more of the consideration for the
Common Stock in the Change of Control transaction consists of consideration other than common stock
that is traded or scheduled to be traded immediately following such transaction on a national
securities exchange or the Nasdaq National Market, a Holder who elects to



A-7









 




convert its Securities in connection with such corporate transaction will be entitled to
receive Additional Shares of Common Stock upon conversion. Notwithstanding the previous sentence,
in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the
Conversion Rate by Additional Shares, elect to adjust the Conversion Rate and Conversion Obligation
such that from and after the effective date of such Public Acquirer Change of Control, Holders of
the Securities will be entitled to convert their Securities into a number of shares of Public
Acquirer Common Stock, as determined pursuant to Section 10.01(d) of the Indenture.




     To surrender a Security for conversion, a Holder must (1) complete and manually sign the
Conversion Notice attached hereto (or complete and manually sign a facsimile of such notice) and
deliver such notice to the Conversion Agent, (2) surrender the Security to the Conversion Agent,
(3) furnish appropriate endorsements and transfer documents, (4) if required by Section 10.02(g) of
the Indenture, pay Interest and (5) pay any transfer or similar tax, if required.



     No fractional shares of Common Stock shall be issued upon conversion of any Security. Instead
of any fractional share of Common Stock that would otherwise be issued upon conversion of such
Security, the Company shall pay a cash adjustment as provided in the Indenture.



     In the event that the Company (i) is a party to a consolidation, merger, binding share
exchange or combination, (ii) reclassifies the Common Stock, or (iii) sells or conveys all or
substantially all of its property or assets to any Person, and as a result of any such event the
holders of Common Stock would be entitled to receive Reference Property for their Common Stock,
upon conversion of the Securities after the effective date of such event, the Conversion Obligation
and the Conversion Settlement Distribution will be based on the applicable Conversion Rate and the
Reference Property, in each case in accordance with the Indenture.



6. Paying Agent, Conversion Agent and Registrar.




     Initially, the Trustee will act as Paying Agent, Conversion Agent and Registrar. The Company
may appoint and change any Paying Agent, Conversion Agent or 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 or Registrar.



7. Denominations; Transfer; Exchange.




     The Securities are in fully registered form, without coupons, in denominations of $1,000 of
principal amount and integral multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees required by



A-8









 




law or permitted by the Indenture. The Registrar need not transfer or exchange any Securities
in respect of which a Change of Control Repurchase Notice has been given and not withdrawn (except,
in the case of a Security to be purchased in part, the portion of the Security not to be
purchased).




8. Persons Deemed Owners.




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



9. Unclaimed Money or Securities.




     The Trustee and the Paying Agent shall return to the Company upon written request any money or
securities held by them for the payment of any amount with respect to the Securities that remains
unclaimed for two years, subject to applicable unclaimed property law. After return to the
Company, Holders entitled to the money or securities must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another person.



10. Amendment; Waiver.




     Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Securities
may be amended with the written consent of the Holders of at least a majority in aggregate
principal amount of the outstanding Securities and (ii) certain Events of Defaults may be waived
with the written consent of the Holders of a majority in aggregate principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the Indenture, without the
consent of any Securityholder, the Company and the Trustee may amend the Indenture or the
Securities (i) to add to the covenants or Events of Default of the Company for the benefit of the
Holders of Securities, (ii) to surrender any right or power conferred upon the Company in the
Indenture, (iii) to provide for conversion rights of Holders of Securities if any reclassification
or change of the Company’s Common Stock or any consolidation, merger or sale of all or
substantially all of the Company’s assets occurs, (iv) to provide for the assumption of the
Company’s obligations to the Holders of Securities in the case of a merger, consolidation,
conveyance, transfer or lease pursuant to Article 5 of the Indenture, (v) to increase the
Conversion Rate; provided, however, that such increase in the Conversion Rate shall not adversely
affect the interests of the Holders of Securities (after taking into account tax and other
consequences of such increase), (vi) to comply with the requirements of the SEC in order to effect
or maintain the qualification of the Indenture or any supplemental indenture under the TIA, (vii)
to make any changes or modifications necessary in connection with the registration of the
Securities under the Securities Act as contemplated by the Registration Rights Agreement; provided,
however, that any such change or modification does not adversely affect the interests of the
Holders of Securities in any material respect, (viii) to cure any ambiguity or to correct or
supplement any provision in the



A-9









 




Indenture which may be inconsistent with any other provision in the Indenture or which is
otherwise defective; provided, however, that any such change or modification does not adversely
affect the interests of the Holders of Securities in any material respect, (ix) to add or modify
any other provisions of the Indenture with respect to matters or questions arising under the
Indenture which the Company and the Trustee may deem necessary or desirable and which will not
adversely affect the interests of the Holders of Securities in any material respect; (x) to
evidence and provide for the acceptance of the appointment under the Indenture of a successor
Trustee, (xi) to add guarantees with respect to the Securities or securing the Securities or (xii)
to conform, as necessary, the Indenture to the “Description of the Debentures” in the Offering
Memorandum relating to the Securities.




11. Defaults and Remedies.




     If any Event of Default with respect to Securities shall occur and be continuing, the
principal amount of the Securities and any accrued and unpaid Interest, and accrued and unpaid
Liquidated Damages, if any, on all the Securities may be declared due and payable in the manner and
with the effect provided in the Indenture.



12. Trustee Dealings with the Company.




     Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities and may otherwise
deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise
deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.



13. Calculations in Respect of Securities.




     The Company or its agents will be responsible for making all calculations called for under the
Securities including, but not limited to, determination of the market prices for the Securities and
of the Common Stock and the amounts of Liquidated Damages, if any, accrued on the Securities. Any
calculations made in good faith and without manifest error will be final and binding on Holders of
the Securities. The Company or its agents will be required to deliver to the Trustee a schedule of
its calculations and the Trustee will be entitled to conclusively rely upon the accuracy of such
calculations without independent verification.



14. [Reserved].




15. No Recourse Against Others.




A-10









 








     A director, officer, employee or shareholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.



16. Authentication.




     This Security shall not be valid until an authorize signatory of the Trustee manually signs
the Trustee’s Certificate of Authentication on the other side of this Security.



17. Abbreviations.




     Customary abbreviations may be used in the name of a Securityholder 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 Gift
to Minors Act).



18. Governing Law.




     THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS SECURITY, WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS RULES THEREOF.



19. Copy of Indenture.




     The Company will furnish to any Securityholder upon written request and without charge a copy
of the Indenture which has in it the text of this Security in larger type. Requests may be made to:


EnPro Industries, Inc.

5605 Carnegie Blvd.

Charlotte, North Carolina 28209

Attn: General Counsel

Facsimile: (704) 731-1500




20. Registration Rights.




     The Holders of the Securities are entitled to the benefits of a Registration Rights Agreement,
dated October 26, 2005, between the Company and Banc of America Securities LLC, as the
representative for the several initial purchasers, including the receipt of Liquidated Damages upon
a Registration Default (as defined in such agreement). The Company shall make payments of
Liquidated



A-11









 




Damages on the Liquidated Damages Payment Dates (as defined in the Registration Rights
Agreement), but otherwise in accordance with the provisions set forth herein for the payment of
Interest.




A-12









 










ASSIGNMENT FORM



To assign this Security, fill in the
form below:


 


I or we assign and transfer this
Security to



 



 




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



 



 



 




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




and irrevocably appoint



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







CONVERSION NOTICE



To convert this Security, check
the box o



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



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



 



 




(Insert the other person’s soc.
sec. tax ID no.)



 



 



 



 



 




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









Date:                      Your Signature:                                                                                                     




 





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




	 	 	 	 	 
	Signature Guaranteed	 	 
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	Participant in a Recognized Signature	 	 
	 
	 	 	 	 
	Guarantee Medallion Program	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	     Authorized Signatory	 	 






A-13









 






SCHEDULE OF INCREASES AND DECREASES

OF GLOBAL SECURITY



Initial Principal Amount of Global Security: One Hundred Seventy-Two Million Five Hundred Thousand
Dollars ($172,500,000).




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Amount of	 	 	Amount of	 	 	Principal	 	 	 	 
	 	 	Increase in	 	 	Decrease in	 	 	Amount of	 	 	 	 
	 	 	Principal	 	 	Principal	 	 	Global	 	 	Notation by	 
	 	 	Amount of	 	 	Amount of	 	 	Security After	 	 	Registrar or	 
	 	 	Global	 	 	Global	 	 	Increase or	 	 	Security	 
	Date	 	Security	 	 	Security	 	 	Decrease	 	 	Custodian	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






A-14









 








EXHIBIT B




[FORM OF FACE OF CERTIFICATED SECURITY]




          THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT OF 1933”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:





	 	(1)	 	REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT OF 1933;
	 
	 	(2)	 	AGREES THAT IT WILL NOT, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION
DATE”) THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THE 3.9375%
CONVERTIBLE SENIOR DEBENTURES AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF
THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), RESELL
OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF SUCH SECURITY EXCEPT (A) TO ENPRO INDUSTRIES, INC . OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT OF 1933, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE), OR (D) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OF 1933
AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND
	 
	 	(3)	 	AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE) A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.





          The foregoing legend may be removed from this Security upon the earlier of the Resale
Restriction Termination Date or the transfer of the Securities pursuant to clause 2(C) or 2(D)
above.




B-1









 








ENPRO INDUSTRIES, INC.




3.9375% Convertible Senior Debentures Due 2015




	 	 	 
	CUSIP: 29355XAA5
	 	 
	ISSUE DATE: October 26, 2005

	 	Principal Amount: [         ]

	No. R-1
	 	 






          ENPRO INDUSTRIES, INC., a North Carolina corporation, promises to pay to                      or
registered assigns, the principal amount of                     , on October 15, 2015.




          Interest Rate: 3.9375% per year.




          Interest Payment Dates: April 15 and October 15 of each year, commencing April 15, 2006.




          Interest Record Date: April 1 and October 1 of each year.




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




B-2









 








     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.



	 	 	 	 	 
	Dated:
[         ]	 	ENPRO INDUSTRIES, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





TRUSTEE’S CERTIFICATE OF AUTHENTICATION




                                                            ,

Wachovia Bank, National Association

as Trustee, certifies that this is one

of the Securities referred to in the

within-mentioned Indenture.




	 	 	 	 	 
	By

	 	 	 	 
	 

	 	 	 	 
	 

	 	     Authorized Signatory	 	 






Dated: o




B-3









 








[FORM OF REVERSE OF CERTIFICATED SECURITY IS IDENTICAL TO EXHIBIT A]





B-4









 








EXHIBIT C




ENPRO INDUSTRIES, INC.




3.9375% Convertible Senior Debentures Due 2015




Transfer Certificate




          In connection with any transfer of any of the Securities within the period prior to the
expiration of the holding period applicable to the sales thereof under Rule 144(k) under the
Securities Act of 1933, as amended (the “Securities Act”) (or any successor provision), the
undersigned registered owner of this Security hereby certifies with respect to $                    
principal amount of the above-captioned Securities presented or surrendered on the date hereof (the
“Surrendered Securities”) for registration of transfer, or for exchange or conversion where the
securities issuable upon such exchange or conversion are to be registered in a name other than that
of the undersigned registered owner (each such transaction being a “transfer”), that such transfer
complies with the restrictive legend set forth on the face of the Surrendered Securities for the
reason checked below:





	 	 	 	[          ] A transfer of the Surrendered Securities is made to the Company or any
subsidiaries; or
	 
	 	 	 	[          ] The transfer of the Surrendered Securities is pursuant to an effective
registration statement under the Securities Act; or
	 
	 	 	 	[          ] The transfer of the Surrendered Securities complies with Rule 144A under
the Securities Act; or
	 
	 	 	 	[          ] The transfer of the Surrendered Securities is pursuant to Rule 144 under
the Securities Act and each of the conditions set forth in such rule
have been met;





and unless the box below is checked, the undersigned confirms that, to the undersigned’s knowledge,
such Securities are not being transferred to an “affiliate” of the Company as defined in Rule 144
under the Securities Act (an “Affiliate”).




C-1









 








          
[       ]  The transferee is an Affiliate of the Company.




	 	 	 	 	 
	DATE:

	 	 

	 	 
	 

	 	          Signature(s)	 	 






          (If the registered owner is a corporation, partnership or fiduciary, the title of the person
signing on behalf of such registered owner must be stated.)




Signature Guaranteed




                                                                                

Participant in a Recognized Signature





C-2









 








EXHIBIT D




ENPRO INDUSTRIES, INC.

NOTICE OF OCCURRENCE

OF CHANGE OF CONTROL




[DATE]



To the
Holders of the 3.9375% Convertible Senior Debentures Due 2015 (the “Securities”) issued by EnPro Industries, Inc.:




          EnPro Industries, Inc. (the “Issuer”) by this written notice hereby notifies you, pursuant to
Section 3.01 of that certain Indenture (the “Indenture”), dated as of October 26, 2005, between the
Issuer and Wachovia Bank, National Association, that a Change of Control (as such term and other
capitalized terms used herein and not otherwise defined herein is defined in the Indenture) as
described below has occurred. Included herewith is the form of Change of Control Repurchase Notice
to be completed by you if you wish to have your Securities repurchased by the Issuer.



1. Change of Control: [Insert brief description of the Change of Control and the date of the
occurrence thereof].



2. Date by which Change of Control Repurchase Notice must be delivered by you to Paying Agent in
order to have your Securities repurchased:



3. Change of Control Repurchase Date:



4. Change of Control Repurchase Price:



5. Paying Agent and Conversion Agent: [NAME] [ADDRESS]



6. Conversion Rate: To the extent described in Item 7 below, each $1,000 principal amount of the
Securities is convertible into [insert number of shares] shares of the Issuer’s common stock, par
value $0.01 per share (the “Common Stock”), subject to adjustment.



7. The Securities as to which you have delivered a Change of Control Repurchase Notice to the
Paying Agent may be converted if they are otherwise convertible pursuant to Article 10 of the
Indenture and the terms of the Securities only if you withdraw such Change of Control Repurchase
Notice pursuant to the terms of the Indenture. You may be entitled to have your Securities
converted into shares of the Issuer’s common stock (or, at the option of the Issuer, cash or a
combination of cash and shares of the Issuer’s common stock):




D-1









 









     (i) during any fiscal quarter commencing after December 31, 2005 (and only during
such fiscal quarter), if the closing price (as defined in the Indenture) of the Issuer’s
common stock for at least 20 trading days in the
30 trading-day period ending on the last trading day of the preceding fiscal quarter
was 130% or more of the conversion price (as defined in the Indenture) on that 30th
trading day;




     (ii) subject to the terms of the Indenture, during the five business day period after
any five consecutive trading day period (the “measurement period”) in which the trading
price (as defined in the Indenture) per Security for each day of such measurement period
was less than 98% of the product of the closing price (as defined in the Indenture) of the
Issuer’s common stock and the conversion rate (as defined in the Indenture) for the
Securities;




     (iii) on or after September 15, 2015;




     (iv) upon the occurrence of certain specified corporate transactions described in the
Indenture; or




     (v) in connection with a transaction or event constituting a change of control, as
described in the Indenture.


8. The Securities as to which you have delivered a Change of Control Repurchase Notice must be
surrendered by you (by effecting book entry transfer of the Securities or delivering definitive
Securities, together with necessary endorsements, as the case may be) to [Name of Paying Agent] at
[insert address] in order for you to collect the Change of Control Repurchase Price.



9. The Change of Control Repurchase Price for the Securities as to which you have delivered a
Change of Control Repurchase Notice and not withdrawn such Notice shall be paid promptly following
the later of the business day immediately following such Change of Control Repurchase Date and the
date you deliver such Securities to [Name of Paying Agent].



10. In order to have the Issuer repurchase your Securities, you must deliver the Change of Control
Repurchase Notice, duly completed by you with the information required by such Change of Control
Repurchase Notice (as specified in Section 3.01 of the Indenture) and deliver such Change of
Control Repurchase Notice to the Paying Agent at any time from 9:00 a.m. on the date of the
occurrence of the Change of Control until 5:00 p.m. on the Change of Control Repurchase Date.




D-2









 







11. In order to withdraw any Change of Control Repurchase Notice previously delivered by you to the
Paying Agent, you must deliver to the Paying Agent, by 5:00 p.m. on the Change of Control
Repurchase Date, a written notice of withdrawal specifying (i) the certificate number, if any, of
the Securities in
respect of which such notice of withdrawal is being submitted, (ii) the principal amount of the
Securities in respect of which such notice of withdrawal is being submitted, and (iii) if you are
not withdrawing your Change of Control Repurchase Notice for all of your Securities, the principal
amount of the Securities which still remain subject to the original Change of Control Repurchase
Notice.



12. Unless the Issuer defaults in making the payment of the Change of Control Repurchase Price owed
to you, Interest, and Liquidated Damages, if any, on your Securities as to which you have delivered
a Change of Control Repurchase Notice will cease to accrue on and after the Change of Control
Repurchase Date.



13. Cusip Number:




	 	 	 	 	 
	 	ENPRO INDUSTRIES, INC.

 	 



D-3









 






	 	 	 	 	 



SCHEDULE I



The following table sets forth the Stock Prices and the number of Additional Shares to be issuable
per $1,000 principal amount of Securities:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price	 
	Effective Date	 	$25.99	 	 	$28.00	 	 	$30.00	 	 	$32.00	 	 	33.79	 	 	$36.00	 	 	$38.00	 	 	$40.00	 	 	$45.00	 	 	$50.00	 	 	$60.00	 	 	$70.00	 	 	$80.00	 	 	$90.00	 	 	$100.00	 
	October 15, 2005
	 	 	8.87	 	 	 	7.73	 	 	 	7.03	 	 	 	6.44	 	 	 	5.98	 	 	 	5.49	 	 	 	5.11	 	 	 	4.77	 	 	 	4.06	 	 	 	3.50	 	 	 	2.68	 	 	 	2.11	 	 	 	1.68	 	 	 	1.36	 	 	 	1.10	 
	October 15, 2006
	 	 	8.21	 	 	 	7.36	 	 	 	6.67	 	 	 	6.09	 	 	 	5.65	 	 	 	5.18	 	 	 	4.81	 	 	 	4.49	 	 	 	3.82	 	 	 	3.30	 	 	 	2.53	 	 	 	1.99	 	 	 	1.60	 	 	 	1.29	 	 	 	1.05	 
	October 15, 2007
	 	 	7.83	 	 	 	6.98	 	 	 	6.29	 	 	 	5.72	 	 	 	5.29	 	 	 	4.84	 	 	 	4.49	 	 	 	4.18	 	 	 	3.56	 	 	 	3.07	 	 	 	2.37	 	 	 	1.87	 	 	 	1.50	 	 	 	1.22	 	 	 	0.99	 
	October 15, 2008
	 	 	7.45	 	 	 	6.57	 	 	 	5.88	 	 	 	5.32	 	 	 	4.90	 	 	 	4.46	 	 	 	4.13	 	 	 	3.84	 	 	 	3.26	 	 	 	2.81	 	 	 	2.17	 	 	 	1.72	 	 	 	1.39	 	 	 	1.13	 	 	 	0.93	 
	October 15, 2009
	 	 	7.07	 	 	 	6.15	 	 	 	5.44	 	 	 	4.87	 	 	 	4.46	 	 	 	4.04	 	 	 	3.72	 	 	 	3.45	 	 	 	2.92	 	 	 	2.52	 	 	 	1.95	 	 	 	1.55	 	 	 	1.26	 	 	 	1.03	 	 	 	0.84	 
	October 15, 2010
	 	 	6.71	 	 	 	5.72	 	 	 	4.97	 	 	 	4.39	 	 	 	3.97	 	 	 	3.56	 	 	 	3.26	 	 	 	3.01	 	 	 	2.53	 	 	 	2.18	 	 	 	1.69	 	 	 	1.35	 	 	 	1.10	 	 	 	0.90	 	 	 	0.75	 
	October 15, 2011
	 	 	6.42	 	 	 	5.31	 	 	 	4.49	 	 	 	3.87	 	 	 	3.44	 	 	 	3.03	 	 	 	2.74	 	 	 	2.52	 	 	 	2.16	 	 	 	1.79	 	 	 	1.39	 	 	 	1.12	 	 	 	0.91	 	 	 	0.75	 	 	 	0.63	 
	October 15, 2012
	 	 	6.26	 	 	 	4.95	 	 	 	4.01	 	 	 	3.32	 	 	 	2.86	 	 	 	2.44	 	 	 	2.17	 	 	 	1.95	 	 	 	1.59	 	 	 	1.36	 	 	 	1.06	 	 	 	0.85	 	 	 	0.70	 	 	 	0.58	 	 	 	0.49	 
	October 15, 2013
	 	 	6.36	 	 	 	4.72	 	 	 	3.55	 	 	 	2.72	 	 	 	2.20	 	 	 	1.76	 	 	 	1.48	 	 	 	1.30	 	 	 	1.02	 	 	 	0.86	 	 	 	0.67	 	 	 	0.54	 	 	 	0.45	 	 	 	0.37	 	 	 	0.31	 
	October 15, 2014
	 	 	7.09	 	 	 	4.97	 	 	 	3.43	 	 	 	2.38	 	 	 	1.75	 	 	 	1.28	 	 	 	1.02	 	 	 	0.87	 	 	 	0.68	 	 	 	0.59	 	 	 	0.46	 	 	 	0.38	 	 	 	0.31	 	 	 	0.26	 	 	 	0.22	 
	October 15, 2015
	 	 	8.87	 	 	 	6.12	 	 	 	3.74	 	 	 	1.65	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 







I-1