EX-4.1






Exhibit 4.1




GLG PARTNERS, INC., as Company




THE BANK OF NEW YORK MELLON, as Trustee




INDENTURE




Dated as of

May 15, 2009




5.00% Dollar-Denominated Convertible Subordinated Notes due May 15, 2014














 






Table of Contents




	 	 	 	 	 
	 	 	Page
	ARTICLE 1 DEFINITIONS
	 	 	1	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Incorporation by Reference of Trust Indenture Act
	 	 	13	 
	Section 1.03. Rules of Construction
	 	 	13	 
	 
	 	 	 	 
	ARTICLE 2 NOTES
	 	 	14	 
	Section 2.01. Designation Amount and Issue of Notes
	 	 	14	 
	Section 2.02. Form of Notes
	 	 	14	 
	Section 2.03. Date and Denomination of Notes; Payments of Interest
	 	 	15	 
	Section 2.04. Execution and Authentication of Notes
	 	 	17	 
	Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer
	 	 	18	 
	Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes
	 	 	27	 
	Section 2.07. Temporary Notes
	 	 	28	 
	Section 2.08. Cancellation of Notes
	 	 	29	 
	Section 2.09. CUSIP Numbers
	 	 	29	 
	 
	 	 	 	 
	ARTICLE 3 REPURCHASE OF NOTES
	 	 	29	 
	Section 3.01. Sinking Fund
	 	 	29	 
	Section 3.02. Repurchase at Option of Holders Upon a Designated Event
	 	 	29	 
	Section 3.03. Company Repurchase Notice
	 	 	31	 
	Section 3.04. Effect of Repurchase Notice; Withdrawal
	 	 	33	 
	Section 3.05. Deposit of Repurchase Price
	 	 	33	 
	Section 3.06. Notes Repurchased in Part
	 	 	34	 
	Section 3.07. Repayment to the Company
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 4 PARTICULAR COVENANTS OF THE COMPANY
	 	 	34	 
	Section 4.01. Payment of Principal, Premium and Interest; Additional Amounts
	 	 	34	 
	Section 4.02. Maintenance of Office or Agency
	 	 	36	 
	Section 4.03. Appointments to Fill Vacancies in Trustee’s Office
	 	 	36	 
	Section 4.04. Provisions as to Paying Agent
	 	 	36	 
	Section 4.05. Existence
	 	 	38	 
	Section 4.06. Rule 144A Information Requirement
	 	 	38	 
	Section 4.07. Stay, Extension and Usury Laws
	 	 	38	 
	Section 4.08. Compliance Certificate
	 	 	38	 
	Section 4.09. Additional Interest Notice
	 	 	38	 
	 
	 	 	 	 
	ARTICLE 5 NOTEHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
	 	 	39	 
	Section 5.01. Noteholders’ Lists
	 	 	39	 
	Section 5.02. Preservation and Disclosure of Lists
	 	 	39	 
	Section 5.03. Reports by Trustee
	 	 	39	 
	Section 5.04. Reports by Company
	 	 	40	 






i









 







	 	 	 	 	 
	 	 	Page
	ARTICLE 6 REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT
	 	 	40	 
	Section 6.01. Events of Default
	 	 	40	 
	Section 6.02. Payments of Notes on Default; Suit Therefor
	 	 	43	 
	Section 6.03. Application of Monies Collected by Trustee
	 	 	44	 
	Section 6.04. Proceedings by Noteholders
	 	 	45	 
	Section 6.05. Proceedings by Trustee
	 	 	46	 
	Section 6.06. Remedies Cumulative and Continuing
	 	 	46	 
	Section 6.07. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders
	 	 	46	 
	Section 6.08. Notice of Defaults
	 	 	47	 
	Section 6.09. Undertaking to Pay Costs
	 	 	47	 
	 
	 	 	 	 
	ARTICLE 7 THE TRUSTEE
	 	 	47	 
	Section 7.01. Duties and Responsibilities of Trustee
	 	 	47	 
	Section 7.02. Reliance on Documents, Opinions, etc.
	 	 	49	 
	Section 7.03. No Responsibility for Recitals, etc.
	 	 	51	 
	Section 7.04. Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes
	 	 	51	 
	Section 7.05. Monies to Be Held in Trust
	 	 	51	 
	Section 7.06. Compensation and Expenses of Trustee
	 	 	51	 
	Section 7.07. Officers’ Certificate as Evidence
	 	 	52	 
	Section 7.08. Conflicting Interests of Trustee
	 	 	52	 
	Section 7.09. Eligibility of Trustee
	 	 	52	 
	Section 7.10. Resignation or Removal of Trustee
	 	 	52	 
	Section 7.11. Acceptance by Successor Trustee
	 	 	54	 
	Section 7.12. Succession by Merger
	 	 	54	 
	Section 7.13. Preferential Collection of Claims
	 	 	55	 
	 
	 	 	 	 
	ARTICLE 8 THE NOTEHOLDERS
	 	 	55	 
	Section 8.01. Action by Noteholders
	 	 	55	 
	Section 8.02. Proof of Execution by Noteholders
	 	 	55	 
	Section 8.03. Absolute Owners
	 	 	55	 
	Section 8.04. Company-owned Notes Disregarded
	 	 	56	 
	Section 8.05. Revocation of Consents; Future Holders Bound
	 	 	56	 
	 
	 	 	 	 
	ARTICLE 9 SUPPLEMENTAL INDENTURES
	 	 	56	 
	Section 9.01. Supplemental Indentures Without Consent of Noteholders
	 	 	56	 
	Section 9.02. Supplemental Indenture With Consent of Noteholders
	 	 	58	 
	Section 9.03. Effect of Supplemental Indenture
	 	 	59	 
	Section 9.04. Notation on Notes
	 	 	59	 
	Section 9.05. Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee
	 	 	59	 
	 
	 	 	 	 
	ARTICLE 10 CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
	 	 	60	 
	Section 10.01. Company May Consolidate on Certain Terms
	 	 	60	 
	Section 10.02. Company Successor to Be Substituted
	 	 	61	 






ii









 








	 	 	 	 	 
	 	 	Page
	ARTICLE 11 SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	61	 
	Section 11.01. Discharge of Indenture
	 	 	61	 
	Section 11.02. Deposited Monies to Be Held in Trust by Trustee
	 	 	62	 
	Section 11.03. Paying Agent to Repay Monies Held
	 	 	62	 
	Section 11.04. Return of Unclaimed Monies
	 	 	62	 
	Section 11.05. Reinstatement
	 	 	62	 
	 
	 	 	 	 
	ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
	 	 	63	 
	Section 12.01. Indenture and Notes Solely Corporate Obligations
	 	 	63	 
	 
	 	 	 	 
	ARTICLE 13 CONVERSION OF NOTES
	 	 	63	 
	Section 13.01. Right to Convert
	 	 	63	 
	Section 13.02. Exercise of Conversion Right; No Adjustment for Interest or Dividends
	 	 	64	 
	Section 13.03. Cash Payments in Lieu of Fractional Shares
	 	 	66	 
	Section 13.04. Conversion Rate
	 	 	66	 
	Section 13.05. Adjustment of Conversion Rate
	 	 	66	 
	Section 13.06. Taxes on Shares Issued
	 	 	75	 
	Section 13.07. Reservation of Shares, Shares to Be Fully Paid; Compliance with
Governmental Requirements; Listing of Common

Stock
	 	 	75	 
	Section 13.08. Responsibility of Trustee
	 	 	75	 
	Section 13.09. Notice to Holders Prior to Certain Actions
	 	 	76	 
	Section 13.10. Conversion Rate Adjustment After Change of Control
	 	 	77	 
	Section 13.11. Ownership Limit
	 	 	78	 
	Section 13.12. Calculation in Respect of Notes
	 	 	80	 
	Section 13.13. Withdrawal of Conversion Rights
	 	 	80	 
	 
	 	 	 	 
	ARTICLE 14 MEETINGS OF HOLDERS OF NOTES
	 	 	81	 
	Section 14.01. Purposes for Which Meetings May Be Called
	 	 	81	 
	Section 14.02. Call, Notice and Place of Meetings
	 	 	81	 
	Section 14.03. Persons Entitled to Vote at Meetings
	 	 	82	 
	Section 14.04. Quorum; Action
	 	 	82	 
	Section 14.05. Determination of Voting Rights; Conduct and Adjournment of Meetings
	 	 	83	 
	Section 14.06. Counting Votes and Recording Action of Meetings
	 	 	83	 
	 
	 	 	 	 
	ARTICLE 15 SUBORDINATION
	 	 	84	 
	Section 15.01. Agreement to Subordinate
	 	 	84	 
	Section 15.02. Liquidation, Dissolution, Bankruptcy
	 	 	84	 
	Section 15.03. Default on Designated Senior Indebtedness
	 	 	85	 
	Section 15.04. Acceleration of Notes
	 	 	86	 
	Section 15.05. When Distribution Must Be Paid Over
	 	 	86	 
	Section 15.06. Notice by Company
	 	 	87	 
	Section 15.07. Subrogation
	 	 	87	 
	Section 15.08. Relative Rights
	 	 	87	 
	Section 15.09. Subordination May Not Be Impaired
	 	 	88	 






iii









 







	 	 	 	 	 
	 	 	Page
	Section 15.10. Distribution or Notice to Representative
	 	 	88	 
	Section 15.11. Rights of Trustee and Paying Agent
	 	 	88	 
	Section 15.12. Authorization to Effect Subordination
	 	 	89	 
	Section 15.13. Article Applicable to Paying Agents
	 	 	89	 
	Section 15.14. Senior Indebtedness and Designated Senior Indebtedness Entitled to Rely
	 	 	89	 
	Section 15.15. Permitted Payments
	 	 	89	 
	Section 15.16. No Waiver of Subordination Provisions
	 	 	89	 
	Section 15.17. Certain Conversions Deemed Payment
	 	 	90	 
	 
	 	 	 	 
	ARTICLE 16 MISCELLANEOUS PROVISIONS
	 	 	90	 
	Section 16.01. Provisions Binding on Company’s Successors
	 	 	90	 
	Section 16.02. Official Acts by Successor Corporation
	 	 	90	 
	Section 16.03. Addresses for Notices, etc.
	 	 	91	 
	Section 16.04. Governing Law
	 	 	92	 
	Section 16.05. Evidence of Compliance with Conditions Precedent, Certificates to
Trustee
	 	 	92	 
	Section 16.06. Legal Holidays
	 	 	92	 
	Section 16.07. Trust Indenture Act
	 	 	92	 
	Section 16.08. No Security Interest Created
	 	 	93	 
	Section 16.09. Benefits of Indenture
	 	 	93	 
	Section 16.10. Table of Contents, Headings, etc.
	 	 	93	 
	Section 16.11. Authenticating Agent
	 	 	93	 
	Section 16.12. Execution in Counterparts
	 	 	94	 
	Section 16.13. Severability
	 	 	94	 
	Section 16.14. Waiver of Jury Trial
	 	 	94	 
	Section 16.15. Submission to Jurisdiction
	 	 	94	 






	 	 	 
	Exhibit A –

	 	Form of Note
	 
	 	 
	Exhibit B –

	 	Form of Certification for Transfer of Affiliate Note From an Affiliate Or a Transferee
of an Affiliate to a Transferee Who Takes Note With Affiliate Legend
	 
	 	 
	Exhibit C –

	 	Form of Certification for Transfer pursuant to Rule 144







iv











 






CROSS-REFERENCE TABLE*




	 	 	 	 	 	 
	TIA Section	 	Indenture Section	 
	310	(a)(1)
	 	 	7.09 	 
		(a)(2)
	 	 	7.09 	 
		(a)(3)
	 	 	N.A. 	 
		(a)(4)
	 	 	N.A. 	 
		(a)(5)
	 	 	7.09 	 
		(b)
	 	 	7.08 	 
		(c)
	 	 	N.A. 	 
	311	(a)
	 	 	7.13 	 
		(b)
	 	 	7.13 	 
		(c)
	 	 	N.A. 	 
	312	(a)
	 	 	5.01, 5.02(a) 	 
		(b)
	 	 	5.02(b) 	 
		(c)
	 	 	5.02(c) 	 
	313	(a)
	 	 	5.03(a) 	 
		(b)(1)
	 	 	N.A. 	 
		(b)(2)
	 	 	5.03(a) 	 
		(c)
	 	 	5.03(a) 	 
		(d)
	 	 	5.03(b) 	 
	314	(a)
	 	 	4.08, 5.04 	 
		(b)
	 	 	N.A. 	 
		(c)(1)
	 	 	16.05 	 
		(c)(2)
	 	 	16.05 	 
		(c)(3)
	 	 	N.A. 	 
		(d)
	 	 	N.A. 	 
		(e)
	 	 	16.05 	 
		(f)
	 	 	N.A. 	 
	315	(a)
	 	 	7.01, 7.02 	 
		(b)
	 	 	6.08 	 
		(c)
	 	 	7.01 	 
		(d)
	 	 	7.01 	 
		(e)
	 	 	6.09 	 
	316	(a)(last sentence)
	 	 	8.04 	 
		(a)(1)(A)
	 	 	6.07 	 
		(a)(1)(B)
	 	 	6.07 	 
		(a)(2)
	 	 	N.A. 	 
		(b)
	 	 	6.04 	 
		(c)
	 	 	2.03 	 
	317	(a)(1)
	 	 	6.02 	 
		(a)(2)
	 	 	6.02 	 
		(b)
	 	 	4.04 	 
	318	(a)
	 	 	16.07 	 
		(c)
	 	 	16.07 	 








 




			
	N.A. means not applicable





v









 




*  This Cross-Reference table shall not, for any purpose, be deemed to be part of this Indenture.





vi









 








INDENTURE




     INDENTURE dated as of May 15, 2009 between GLG Partners, Inc., a Delaware corporation
(hereinafter called the “Company”), having its principal executive office at 399 Park Avenue, 38th
Floor, New York, New York, 10022 and The Bank of New York Mellon, as trustee hereunder (hereinafter
called the “Trustee”).



     Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the holders of the Company’s 5.00% Dollar-Denominated Convertible Subordinated
Notes due May 15, 2014 (hereinafter called the “Notes”).



ARTICLE 1

DEFINITIONS




     Section 1.01. Definitions. The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of this Indenture and
of any indenture supplemental hereto shall have the respective meanings specified in this Section
1.01. All other terms used in this Indenture that are defined in the Trust Indenture Act (as
defined below) or which are by reference therein defined in the Securities Act (as defined below)
(except as herein otherwise expressly provided or unless the context otherwise requires) shall have
the respective meanings assigned to such terms in the Trust Indenture Act and in the Securities Act
as in force at the date of the execution of this Indenture.



     “Additional Amounts” has the meaning specified in Section 4.01.



     “Additional Interest” has the meaning specified in Section 5 of the Registration Rights
Agreement.



     “Additional Interest Notice” has the meaning specified in Section 4.09.



     “Additional Notes” has the meaning specified in Section 2.01.



     “Additional Regulatory Condition” means any condition which, if triggered by an increase in
ownership or control of the Company or its subsidiaries or controlled affiliates by virtue of a
conversion of Notes, would (as a result of the registration or qualification of the Company or any
of its subsidiaries or controlled affiliates as a manager, investment advisor or broker-dealer (i)
in any jurisdiction other than the United Kingdom, Ireland or the Cayman Islands, or (ii) as a
result of a change in the laws, regulations or published interpretations thereof with respect to
any such registration or qualification in any jurisdiction, including the United Kingdom, Ireland
or the Cayman Islands) be inconsistent with the registration or qualification of the Company or any
of its subsidiaries or controlled affiliates as a manager, investment advisor or broker-dealer in
any jurisdiction or require the Company or any such subsidiary or controlled affiliate to obtain,
in respect of such registration or qualification, regulatory approval of such increase in ownership
or control.



     “Additional Change of Control Shares” has the meaning specified in Section 13.10(a).



1









 





     “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.



     “Affiliate Legend” means the legend labeled as such that is set forth in Exhibit A hereto,
which is incorporated in and expressly made a part of this Indenture.



     “Affiliate Notes” has the meaning specified in Section 2.02.



     “Agent Members” has the meaning specified in Section 2.05(b)(v).



     “Applicable Conversion Rate” as of any Trading Day, means the Conversion Rate in effect on
such date determined by the Company, after giving effect to any adjustment provided for in Section
13.05 or Section 13.10, and, if applicable, after giving effect to the application of Section 5 of
the Registration Rights Agreement.



     “Bankruptcy Law” means Title 11, U.S. Code or any similar federal, state, or foreign law for
the relief of debtors.



     “Board of Directors” means the board of directors of the Company or, except as used in the
definition of Change of Control and except where the context otherwise requires, any duly
authorized committee of such board of directors.



     “Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday, other than a day on
which banking institutions in The City of New York or London are authorized or obligated by law,
regulation or executive order to close.



     “capital stock” means: (i) in the case of a corporation, corporate stock; (ii) in the case of
an association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock; (iii) in the case of a partnership or limited
liability company, partnership interests (whether general or limited) or membership interests; or
(iv) any other interest or participation that confers on a person the right to receive a share of
the profits and losses of, or distributions of assets of, the issuing person.



     “Change of Control” means the occurrence at any time after the Issue Date of any of the
following events:



          (1) consummation of any transaction or event (whether by means of a share exchange or tender
offer applicable to the Common Stock, a liquidation, consolidation, recapitalization,
reclassification, combination or merger of the Company or a sale, lease or other transfer of all or
substantially all of the Company’s consolidated assets) or a series of related transactions or
events pursuant to which the Company’s outstanding Common Stock is




2









 





exchanged for, converted into or constitutes solely the right to receive cash, securities, or
other property, other than:




               (a) a transaction or event or a series of related transactions or events pursuant to which the
holders of outstanding Common Stock and securities or instruments convertible or exchangeable for
the Common Stock immediately prior to such transaction or event own, immediately after such
transaction, at least a majority of the outstanding Common Stock or common stock of a successor of
the Company, as applicable, or




               (b) a transaction or event or a series of related transactions or events pursuant to which at
least 90% of the consideration (other than cash payments for fractional shares or pursuant to
dissenters’ appraisal rights) in such transaction consists of securities (including American
Depository Receipts (“ADRs”) issued under an issuer-sponsored ADR program) that are, or upon
issuance will be, traded on, a United States national securities exchange or approved for quotation
on any United States system of automated dissemination of quotations of securities prices similar
to the Nasdaq National Market prior to its designation as a national securities exchange;




          (2) any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d)
of the Exchange Act, whether or not applicable), is or becomes the “beneficial owner,” directly or
indirectly, of more than 50% of the total voting power in the aggregate of all classes of the
Company’s capital stock then outstanding entitled to vote generally in elections of directors,
other than pursuant to a transaction of the type contemplated by the preceding clause (1) that
would be exempt from the definition of “Change of Control” pursuant to clause (1) of this
definition; provided, that no Change of Control will be deemed to occur under this clause (2) as a
result of a person or group being or becoming a beneficial owner of more than 50% of such total
voting power so long as (i) such person or group is a member of the “group” of beneficial owners
subject to the Voting Agreement (the “principals’ control group”) that includes any of the
Principals and the Principals’ Trustees (including any person who may become a member of such group
after the issuance of the Notes), (ii) the principals’ control group does not beneficially own more
than 75% of such total voting power and (iii) any of the Principals and Principals’ Trustees
continue to hold directly or indirectly the pecuniary interest in shares of the Company’s capital
stock representing at least 25% of such total voting power; or




          (3) during any period of 12 consecutive months after the Issue Date, persons who at the
beginning of such 12 month period constituted the Company’s Board of Directors, together with any
new persons whose election was approved by a vote of a majority of the persons then still
comprising the Board of Directors who were either members of the Board of Directors at the
beginning of such period or whose election, designation or nomination for election was previously
so approved, cease for any reason (except by reason of temporary vacancies created by the death of
a director, prior to the replacement of such director) to constitute a majority of the Company’s
Board of Directors.




     For the purposes of this definition, “person” includes any syndicate or group that would be
deemed to be a “person” under Section 13(d)(3) of the Exchange Act and “beneficial owner” has the
definition assigned to it under Section 13(d)(3) of the Exchange Act.



3









 





     “CIMA” has the meaning specified in Section 13.11(a)(iii).



     “Closing Sale Price” of the Common Stock or other capital stock or similar equity interests or
other publicly traded securities on any Trading Day means the Closing Sale Price per share (or, if
no Closing Sale Price is reported, the average of the closing bid and ask prices or, if more than
one in either case, the average of the average closing bid and the average closing ask prices) on
such date as reported on the principal United States securities exchange on which the Common Stock
or such other capital stock or similar equity interests or other securities are traded or, if the
Common Stock or such other capital stock or similar equity interests or other securities are not
listed on a United States national or regional securities exchange, any United States system of
automated dissemination of quotations of securities prices or an established over-the-counter
trading market in the United States. The Closing Sale Price will be determined without regard to
after-hours trading or extended market making. In the absence of the foregoing, the Company will
determine the Closing Sale Price on such basis as it considers appropriate.



     “Common Stock” means, subject to Section 13.09, shares of common stock of the Company, par
value $0.0001 per share, at the date of this Indenture or shares of any class or classes resulting
from any reclassification or reclassifications thereof and that have no preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and that are not subject to redemption by the Company;
provided that if at any time there shall be more than one such resulting class, the shares of each
such class then so issuable on conversion shall be substantially in the proportion that the total
number of shares of such class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.



     “Common Stock Legend” has the meaning specified in Section 2.05(c).



     “Company” means the party named as such in the first paragraph of this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture, and thereafter
“Company” shall mean such successor Company.



     “Company Repurchase Notice” has the meaning specified in Section 3.03(b).



     “Company Repurchase Notice Date” has the meaning specified in Section 3.03(a).



     “Company Warrants” means (1) the 9,375,000 Founders’ Warrants issued as part of Founders’
Units pursuant to several Founders’ Units Subscription Agreements, dated July 20, 2006, between the
Company and each of Berggruen Holdings North America Ltd., Marlin Equities II, LLC, James N.
Hauslein, William P. Lauder and Herbert A. Morey; (2) the 4,500,000 Sponsors’ Warrants and the
6,250,000 Co-Investment Warrants issued as part of Co-Investment Units, pursuant to several
Sponsors’ Warrants and Co-Investment Units Subscription Agreements, dated July 20, 2006, between
the Company and each of Berggruen Holdings North America Ltd. and Marlin Equities II, LLC and (3)
the Public Stockholders’ Warrants.



     “Conversion Agent” has the meaning specified in Section 2.08.



4









 





     “Conversion Date” has the meaning specified in Section 13.02.



     “Conversion Notice” has the meaning specified in Section 13.02.



     “Conversion Price” means, at any time, an amount equal to $1,000 divided by the Conversion
Rate in effect at such time, rounded to the nearest cent.



     “Conversion Rate” has the meaning specified in Section 13.04.



     “Corporate Trust Office” or other similar term, means the designated office of the Trustee at
which, at any particular time, its corporate trust business as it relates to this Indenture shall
be administered, which office is, at the date as of which this Indenture is dated, located at The
Bank of New York Mellon, 101 Barclay Street, New York, New York 10286, Attention: Global Corporate
Trust, or at any other time at such other address as the Trustee may designate from time to time by
notice to the Company. Pursuant to Section 16.03, the Company will send a copy of any written
communication sent to the Corporate Trust Office to: The Bank of New York Mellon, One Canada
Square, London E14 5AL, United Kingdom, Attention: Global Corporate Trust.



     “Credit Agreement” means the credit agreement, dated as of October 30, 2007, among the
Company, FA Sub 3, FA Sub 2 Limited and FA Sub 1 Limited, Citicorp USA, Inc., as administrative
agent, and the lenders party thereto, as amended, renewed, extended or refinanced from time to
time.



     “Credit Agreement Debt” means the “Obligations” under and as defined in the Credit Agreement.



     “CUSIP” means the Committee on Uniform Securities Identification Procedures.



     “Custodian” means The Bank of New York Mellon, as custodian with respect to the Notes in
global form, or any successor entity thereto.



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



     “Defaulted Interest” has the meaning specified in Section 2.03.



     “Definitive Note” has the meaning specified in Section 2.02.



     “Depositary” means the clearing agency registered under the Exchange Act that is designated to
act as the Depositary for the Global Notes. DTC shall be the initial Depositary, until a successor
shall have been appointed and become such pursuant to the applicable provisions of this Indenture,
and thereafter, “Depositary” shall mean or include such successor.



     “Designated Event” means the occurrence at any time of either of the following events:



5









 





          (1) the Common Stock (or other common stock or American Depository Receipts representing the
Common Stock issued under an issuer-sponsored ADR program into which the Notes are then
convertible) ceases to be listed on a United States national securities exchange or is not approved
for quotation on any United States system of automated dissemination of quotations of securities
prices similar to the Nasdaq National Market prior to its designation as a national securities
exchange; or




          (2) a Change of Control.




     “Designated Event Repurchase Date” has the meaning specified in Section 3.02(a).



     “Designated Event Repurchase Notice” has the meaning specified in Section 3.02(c).



     “Designated Senior Indebtedness” means: (i) any Senior Indebtedness the principal amount of
which is at least $50.0 million and with respect to which the instrument creating or evidencing
such Indebtedness, or any related agreements or documents to which the Company is a party,
expressly provides that such Senior Indebtedness is “Designated Senior Indebtedness” (provided that
the instrument, agreement or other document may place limitations and conditions on the right of
the Senior Indebtedness to exercise the rights of Designated Senior Indebtedness) and (ii) any
“Obligations” (under and as defined in the Credit Agreement) of the Company with respect to
outstanding Credit Agreement Debt, including guarantees of such Credit Agreement Debt.



     “DTC” means The Depository Trust Company.



     “Effective Date” has the meaning specified in Section 13.10(b).



     “Event of Default” means any event specified in Section 6.01 as an Event of Default.



     “Exchangeable Shares” means the Class B Ordinary Shares, par value U.S. $0.0001 per share, of
FA Sub 2 Limited.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder, as in effect from time to time.



     “ex-dividend date” means, with respect to any dividend or other distribution on shares of
Common Stock or other securities, the first date upon which a transfer of the Common Stock or such
other securities does not automatically transfer the right to receive the relevant distribution
from the seller of the Common Stock or such other securities to its buyer.



     “Expiration Time” has the meaning specified in Section 13.05(e).



     “FA Sub 1 Limited” means FA Sub 1 Limited, a British Virgin Islands company limited by shares,
a wholly-owned, direct Subsidiary of the Company.



     “FA Sub 2 Limited” means FA Sub 2 Limited, a British Virgin Islands company limited by shares,
an indirect Subsidiary of the Company.



6









 





     “FA Sub 3” means FA Sub 3 Limited, a British Virgin Islands company limited by shares, an
indirect Subsidiary of the Company.



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



     “FSA” has the meaning specified in Section 13.11(a)(i).



     “Global Note” has the meaning specified in Section 2.02.



     “Holder” means a “Noteholder”.



     “Indebtedness” means, with respect to any Person:



          (1) (a) with respect to any party to the Credit Agreement, the Credit Agreement Debt, and (b)
in addition, with respect to any Person, all of such Person’s indebtedness, obligations and other
liabilities, contingent or otherwise, (i) for borrowed money, including overdrafts, foreign
exchange contracts, currency exchange agreements, interest rate protection agreements, and any
loans or advances from banks or other financial institutions, whether or not evidenced by notes or
similar instruments, or (ii) evidenced by credit or loan agreements, bonds, debentures or similar
instruments, whether or not the recourse of the lender is to the whole assets of such Person or to
only a portion thereof;




          (2) all of such Person’s reimbursement obligations and other liabilities, contingent or
otherwise, with respect to letters of credit, bank guarantees, bankers’ acceptances, surety bonds
or performance bonds, whether or not matured;




          (3) all of such Person’s obligations, contingent or otherwise, with respect to an interest
rate or other swap, cap, floor or collar agreement or hedge agreement, forward contract or other
similar instrument or agreement or foreign currency hedge, exchange, purchase or similar instrument
or agreement; and




          (4) all of such Person’s direct or indirect guarantees or similar agreements in respect of,
and all obligations or liabilities to purchase or otherwise acquire or otherwise assure a creditor
against loss in respect of, indebtedness, obligations or liabilities of another Person of the kinds
described in clauses (1) through (3).




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



     “Initial Notes” has the meaning specified in Section 2.01.



     “Initial Purchasers” means Citigroup Global Markets, Inc. and Credit Suisse Securities
(USA) LLC.



7









 





     “interest” means, when used with reference to the Notes, any interest payable under the terms
of the Notes, including Additional Amounts, if any, and including Additional Interest, if any,
payable under the terms of the Registration Rights Agreement.



     “Interest Payment Date” has the meaning set forth in the Notes.



     “Interest Record Date” has the meaning set forth in the Notes.



     “Issue Date” means May 15, 2009.



     “junior securities” has the meaning set forth in Section 15.17.



     “Make Whole Cap” has the meaning specified in Section 13.10(f)(ii).



     “Make Whole Floor” has the meaning specified in Section 13.10(f)(iii).



     “Market Disruption Event” means the occurrence or existence for more than one half-hour period
in the aggregate on any scheduled Trading Day for the Common Stock of any suspension or limitation
imposed on trading (by reason of movements in price exceeding limits permitted by the NYSE or
otherwise) in the Common Stock or in any options, contracts or future contracts relating to the
Common Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m. (New
York City time) on such day.



     “Maturity Date” means May 15, 2014.



     “Maximum Conversion Rate” has the meaning specified in Section 13.05(g).



     “Non Payment Default” has the meaning specified in Section 15.03(b).



     “Note” or “Notes” means any of the Company’s 5.00% Dollar-Denominated Convertible Subordinated
Notes due May 15, 2014, authenticated and delivered under this Indenture.



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



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



     “Noteholder” as applied to any Note, or other similar terms (but excluding the term
“beneficial holder”), means any Person in whose name at the time a particular Note is registered on
the Note Registrar’s books.



     “NYSE” means the New York Stock Exchange.



     “Offering Circular” means the Company’s offering circular dated May 12, 2009 relating to the
Notes.



     “Officer” means any person holding any of the following positions with the Company, the
Chairman or any Co-Chairman of the Board, any Vice Chairman of the Board, the Chief



8









 







Executive Officer or any Co-Chief Executive Officer, the Chief Operating Officer, the Chief
Legal Officer, the Chief Financial Officer, the Treasurer, the Secretary, or any Vice President of
such Person.



     “Officers’ Certificate”, when used with respect to the Company, means a certificate signed by
any two Officers of the Company or by one such Officer and any Assistant Treasurer or Assistant
Secretary of the Company.



     “Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an
employee of or counsel to the Company, which opinion shall be reasonably acceptable to the Trustee.



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



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




          (b) Notes, or portions thereof, (i) for the repurchase of which monies in the necessary amount
shall have been deposited in trust with the Trustee or with any Paying Agent (other than the
Company) or (ii) which shall have been otherwise discharged in accordance with Article 11;




          (c) Notes in lieu of which, or in substitution for which, other Notes shall have been
authenticated and delivered pursuant to the terms of Section 2.06; and




          (d) Notes converted pursuant to Article 13, and Notes paid or repurchased pursuant to Article
3.




     “Paying Agent” has the meaning specified in Section 2.08.



     “Payment Blockage Notice” has the meaning specified in Section 15.03(b).



     “Payment Blockage Period” has the meaning specified in Section 15.03(b).



     “Payment Default” has the meaning specified in Section 15.03(a).



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



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



9









 





     “premium” means any premium payable under the terms of the Notes.



     “Principals” means Noam Gottesman, Emmanuel Roman and Pierre Lagrange.



     “Principals’ Trustees” means each of G&S Trustees Limited, in its capacity as trustee of the
Lagrange GLG Trust, Leslie J. Schreyer, in his capacity as trustee of the Gottesman GLG Trust and
Jeffrey A. Robins, in his capacity as trustee of the Roman GLG Trust.



     “Public Stockholders’ Warrants” means the 52,800,000 warrants to purchase Common Stock, issued
pursuant to the Amended and Restated Warrant Agreement, dated as of December 21, 2006, between
Continental Stock Transfer & Trust Company and the Company, as amended.



     “Purchase Agreement” means the Purchase Agreement, dated as of May 12, 2009, among the Company
and the Initial Purchasers.



     “Record Date” has the meaning specified in Section 2.03.



     “Redomiciliation” has the meaning specified in Section 10.01.



     “Reference Property” has the meaning specified in Section 13.05(o).



     “Registration Rights Agreement” means the Registration Rights Agreement with respect to the
Notes, dated as of May 15, 2009, among the Company and the Initial Purchasers, as amended from time
to time in accordance with its terms.



     “Regulatory Condition” has the meaning specified in Section 13.11.



     “Relevant Date” has the meaning specified in Section 4.01.



     “Relevant Taxing Jurisdiction” has the meaning specified in Section 4.01(b).



     “Responsible Officer” means, with respect to the Trustee, any officer within the Global
Corporate Trust department (or any successor department) of the Trustee located at the Corporate
Trust Office of the Trustee, who shall have direct responsibility for the administration of this
Indenture, and also means, with respect to any particular corporate trust matter, any other officer
of the Trustee to whom such corporate trust matter is referred because of such officer’s knowledge
of and familiarity with the particular subject.



     “Restricted Notes Legend” has the meaning specified in Section 2.05(c).



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



     “Rule 144A” means Rule 144A as promulgated under the Securities Act as it may be amended from
time to time hereafter.



     “SEC” means the United States Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or, if at any time after the execution of this



10









 







Indenture the SEC is not existing and performing the duties now assigned to it under the TIA,
then the body performing such duties at such time.



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.



     “Senior Indebtedness” means the principal of, premium, if any, interest, including any
interest accruing after the commencement of any bankruptcy or similar proceeding, whether or not a
claim for post-petition interest is allowed as a claim in the proceeding, and all fees, costs,
expenses and other amounts accrued or due on or in connection with, Indebtedness of the Company,
whether secured or unsecured, absolute or contingent, due or to become due, outstanding on the date
of the Indenture or thereafter created, incurred, assumed, guaranteed or in effect guaranteed by
the Company, including all deferrals, renewals, extensions, or refundings of, or amendments,
modifications or supplements to, the foregoing. “Senior Indebtedness” does not include:



          (a) Indebtedness that expressly provides that such Indebtedness shall not be senior in right
of payment to the Notes or expressly provides that such Indebtedness is on the same basis or junior
to the Notes;




          (b) any trade payables; or




          (c) any Indebtedness to any of the Company’s Subsidiaries, other than guarantees of Credit
Agreement Debt, collateral securing Credit Agreement Debt or other Indebtedness to the Company’s
Subsidiaries arising by reason of guarantees by the Company of Indebtedness of such Subsidiary to a
Person that is not the Company’s Subsidiary.




     “Significant Subsidiary” means a “significant subsidiary” (as defined in Rule 1-02(w) of
Regulation S-X) of the Company, other than a “significant subsidiary” (i) (a) that is an operating
company, other than one operating principally in the investment advisory business, that is acquired
after the Issue Date by a collective investment vehicle for which the Company or an entity
controlled by the Company is the investment advisor or (b) that is a collective investment vehicle
managed by the Company or an entity controlled by the Company, regardless of whether or not it is
consolidated in the Company’s financial statements, and (ii) as to whose Indebtedness and other
obligations neither the Company nor its Subsidiaries provide any guarantee or other credit support.



     “Spin-Off” has the meaning specified in Section 13.05(c).



     “Stated Maturity,” with respect to any Note or any installment of principal thereof or
interest thereon, means the date established by or pursuant to this Indenture or such Note as the
fixed date on which the principal of such Note or such installment of principal or interest is due
and payable.



     “Stock Price” has the meaning specified in Section 13.10(b).



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     “Subsidiary” means, with respect to any Person, (i) any corporation, association or other
business entity of which more than 50% of the total voting power of shares of capital stock or
other equity interest entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner or managing general
partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are such Person or of one or more Subsidiaries of such Person (or any combination thereof).



     “TIA” means the Trust Indenture Act.



     “Trading Day” means a day on which (i) there is no Market Disruption Event and (ii) trading in
securities generally occurs on the NYSE or, if the Common Stock is not then listed on the NYSE, on
the principal other United States national or regional securities exchange on which the Common
Stock or other security is then listed or, if the Common Stock is not then listed on a United
States national or regional securities exchange, on the principal other market on which the Common
Stock is then traded, or if there is not then a trading market for the Common Stock or other
security, “Trading Day” means any Business Day.



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



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



     “Trustee” means The Bank of New York Mellon and its successors and any corporation resulting
from or surviving any consolidation or merger to which it or its successors may be a party and any
successor trustee at the time serving as successor trustee hereunder.



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



     “Volume Weighted Average Price”, on any Trading Day means, in the case of a share of Common
Stock, the volume weighted average price of one share of Common Stock as displayed under the
heading “Bloomberg VWAP” on Bloomberg Page GLG.N <EQUITY> AQR in respect of the period from
9:30 a.m. to 4:00 p.m. (New York City time) on that Trading Day, and in the case of the Public
Stockholders’ Warrants, the volume weighted average price of one such Public Stockholders’ Warrant
as displayed under the heading “Bloomberg VWAP” on Bloomberg Page GLG/WS.N <EQUITY> AQR in
respect of the period from 9:30 a.m. to 4:00 p.m. (New York City time) on that Trading Day (or if
such volume weighted average price is not available, the market value of the applicable security
using a volume weighted method).



12









 





     “Voting Agreement” means the voting agreement, dated as of June 22, 2007, as amended, among
the Company, the Principals, the Trustees and the other parties thereto.



     “Withdrawal Date” has the meaning specified in Section 13.13(b).



     “Withdrawal Notice Date” has the meaning specified in Section 13.13(b).



     Section 1.02. 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:




     (a) “Commission” means the SEC;




     (b) “indenture securities” means the Notes;




     (c) “indenture security holder” means a Holder;




     (d) “indenture to be qualified” means this Indenture;




     (e) “indenture trustee” or “institutional trustee” means the Trustee; and




     (f) “obligor” on the Notes means the Company or any other obligor on the Notes.



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




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




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




     (c) “or” is not exclusive;




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




     (e) the male, female and neuter genders include one another;




     (f) references to the payments of interest on the Notes shall include Additional
Interest payable pursuant to Section 5 of the Registration Rights Agreement (if any);




     (g) the word “including” wherever used will be deemed to be followed by the word
“without limitation”;




     (h) references to agreements and other instruments include subsequent amendments
thereto; and



13









 






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



     The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to
the extent any provision of any Note conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern.



ARTICLE 2

NOTES




     Section 2.01. Designation Amount and Issue of Notes. The Notes shall be designated as “5.00%
Dollar-Denominated Convertible Subordinated Notes due May 15, 2014.” Upon the execution of this
Indenture, and from time to time thereafter, Notes may be executed by the Company and delivered to
the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver Notes upon
a written order of the Company, such order signed by two Officers or by an Officer and either an
Assistant Treasurer of the Company or any Assistant Secretary of the Company, without any further
action by the Company hereunder.



     The aggregate principal amount of Notes which may be authenticated and delivered under this
Indenture is unlimited; provided that upon initial issuance (including any issuance upon exercise
of the Initial Purchasers’ option set forth in Section 3 of the Purchase Agreement), the aggregate
principal amount of Notes outstanding shall not exceed $229,000,000, except as provided in Section
2.06. The Company may, without the consent of the Holders of Notes, issue additional Notes (the
“Additional Notes”) from time to time in the future with the same terms and the same CUSIP number
as the Notes originally issued under this Indenture (including any issuance upon exercise of the
Initial Purchasers’ option set forth in Section 3 of the Purchase Agreement) (the “Initial Notes”)
in an unlimited principal amount, provided that such Additional Notes must be part of the same
issue as and fungible with the Initial Notes for United States federal income tax purposes. The
Initial Notes and any such Additional Notes will constitute a single series of debt securities, and
in circumstances in which this Indenture provides for the Holders of Notes to vote or take any
action, the Holders of Initial Notes and the Holders of any such Additional Notes will vote or take
that action as a single class.



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



     Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends, endorsements or changes as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Indenture, or as may be required by the Custodian, the



14









 







Depositary or as may be required for the Notes to be tradable on any market existing or
developed for trading of securities pursuant to Rule 144A or as may be required to comply with any
applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation
of any securities exchange or automated quotation system on which the Notes may be listed, or to
conform to usage, or to indicate any special limitations or restrictions to which any particular
Notes are subject.



     So long as the Notes are eligible for book-entry settlement with the Depositary, or unless
otherwise required by law, or otherwise contemplated by Section 2.05(b), all of the Notes, other
than Affiliate Notes, will be represented by one or more Notes in global form registered in the
name of the Depositary or the nominee of the Depositary (a “Global Note”). The transfer and
exchange of beneficial interests in any such Global Note shall be effected through the Depositary
in accordance with this Indenture and the applicable procedures of the Depositary.



     Except as provided in Section 2.05(b), beneficial owners of a Global Note shall not be
entitled to have certificates registered in their names, will not receive or be entitled to receive
physical delivery of certificates in definitive form and will not be considered Holders of such
Global Note.



     Any Global Note shall represent such of the outstanding Notes as shall be specified therein
and shall provide that it shall represent the aggregate amount of outstanding Notes from time to
time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may
from time to time be increased or reduced to reflect redemptions, repurchases, exchanges, or
transfers permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase
or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or
the Custodian, at the direction of the Trustee, in such manner and upon instructions given by the
Holder of such Notes in accordance with this Indenture. Payment of principal of, interest on and
premium, if any, on any Global Note shall be made to the Holder of such Note.



     Notes originally offered and sold by the Initial Purchasers to Affiliates of the Company
(“Affiliate Notes”) will be issued in the form of one or more certificated notes in definitive
registered form, without interest coupons (“Definitive Notes”). Each Affiliate Note shall be issued
with the Affiliate Legend, set forth in Exhibit A hereto, which is incorporated in and expressly
made a part of this Indenture. Upon such issuance, the Note Registrar shall register such Affiliate
Notes in the name of the beneficial owner or owners of such Note (or the nominee of such beneficial
owner or owners) and deliver the certificates for such Affiliate Notes to the respective beneficial
owner or owners (or the nominee of such beneficial owner or owners). A Note initially issued as an
Affiliate Note will bear the Affiliate Legend set forth in Exhibit A and be certificated only as a
Definitive Note (and not as or with a Global Note) until it ceases to be a “restricted security”
within the meaning of Rule 144 under the Securities Act, unless otherwise agreed by the Company
(with written notice thereof to the Trustee).



     Section 2.03. Date and Denomination of Notes; Payments of Interest. The Notes shall be issuable in
fully registered form without coupons in denominations of $100,000 principal amount and integral
multiples of $1,000 in excess thereof, subject to Section 2.05(b) and Section



15









 





2.05(c). Each Note shall be dated the date of its authentication and shall bear interest from the
date specified on the face of the Note attached as Exhibit A hereto (which date shall be the Issue
Date in the case of the Initial Notes and in no event shall be earlier than the Issue Date).
Interest on the Notes shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.



     The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register
at 5:00 p.m., New York City time, on any Record Date with respect to any interest payment date
shall be entitled to receive the interest payable on such interest payment date. Notwithstanding
the foregoing, any Note or portion thereof surrendered for conversion during the period from 5:00
p.m., New York City time on the Record Date for any interest payment date to 5:00 p.m., New York
City time, on the applicable interest payment date must be accompanied by payment, in immediately
available funds or other funds acceptable to the Company, of an amount equal to the interest
otherwise payable on such interest payment date on the principal amount being converted; provided,
however, that no such payment need be made (1) if a Holder converts its Notes in connection with a
Change of Control and the Company has specified a Designated Event Repurchase Date that is after a
Record Date and on or prior to the related interest payment date, (2) in respect of conversions
that occur after the Record Date immediately preceding the Maturity Date or (3) with respect to any
overdue interest, if any overdue interest exists at the time of conversion with respect to such
Note. Interest shall be payable at the office of the Company maintained by the Company for such
purposes in the City of New York, which shall initially be an office or agency of the Trustee. The
Company shall pay interest (i) on any Notes in certificated form by check mailed to the address of
the Person entitled thereto as it appears in the Note Register; provided, however, that a Holder of
any Notes in certificated form in the aggregate principal amount of more than $5.0 million may
specify by written notice to the Company that it pay interest by wire transfer of immediately
available funds to the account specified by the Noteholder in such notice, or (ii) on any Global
Note by wire transfer of immediately available funds to the account of the Depositary or its
nominee. If a payment date is not a Business Day, payment shall be made on the next succeeding
Business Day, and no additional interest shall accrue thereon. The term “Record Date” with respect
to any interest payment date shall mean the May 1 or November 1 preceding the applicable May 15 or
November 15 interest payment date, respectively.



     Any interest on any Note which is payable, but is not punctually paid or duly provided for, on
any May 15 or November 15 (herein called “Defaulted Interest”) shall forthwith cease to be payable
to the Holder registered as such on the relevant Record Date, and such Defaulted Interest shall be
paid by the Company, at its election in each case, as provided in clause (a) or (b) below:




     (a) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Notes (or their respective Predecessor Notes) are registered at 5:00 p.m.,
New York City time, on a special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of
the proposed payment (which shall be not less than twenty-five (25) calendar days after the
receipt by the Trustee of such notice, unless the Trustee shall



16









 







consent to an earlier date), and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit
on or prior to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a special Record Date for the payment of such
Defaulted Interest which shall be not more than fifteen (15) calendar days and not less than
ten (10) calendar days prior to the date of the proposed payment, and not less than ten (10)
calendar days after the receipt by the Trustee of the notice of the proposed payment
(unless, the Trustee shall consent to an earlier date). The Trustee shall promptly notify
the Company of such special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the special Record
Date therefor to be sent by electronic transmission or mailed, first-class postage prepaid,
to each Holder at its address as it appears in the Note Register, not less than ten (10)
calendar days prior to such special Record Date (unless, the Trustee shall consent to an
earlier date). Notice of the proposed payment of such Defaulted Interest and the special
Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Notes (or their respective Predecessor Notes) are registered at
5:00 p.m., New York City time, on such special Record Date and shall no longer be payable
pursuant to the following clause (b) of this Section 2.03.




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



     Section 2.04. Execution and Authentication of Notes. The Notes shall be signed in the name and on
behalf of the Company by the manual or facsimile signature of an Officer. Only such Notes as shall
bear thereon a certificate of authentication substantially in the form set forth on the form of
Note attached as Exhibit A hereto, executed manually or by facsimile by the Trustee (or an
authenticating agent appointed by the Trustee as provided by Section 16.11), shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee (or such an authenticating agent) upon any Note executed by the Company shall be conclusive
evidence that the Note so authenticated has been duly authenticated and delivered hereunder and
that the Holder is entitled to the benefits of this Indenture.



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



17









 







execution of such Note, shall be the proper Officers, although at the date of the execution of
this Indenture any such person was not such an Officer.



     The Company shall deliver executed Notes to the Trustee with such Officers’ Certificate and
Opinion of Counsel as the Trustee may require and a written order directing the Trustee to
authenticate the Notes for issuance.



     Payment of the fees and expenses of Trustee’s counsel shall be a condition precedent to
authentication of the Notes.



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




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



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



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



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



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



18









 





     No service charge shall be made to any Holder for any registration of, transfer or exchange of
Notes, but the Company may require payment by the Holder of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in connection with any registration of
transfer or exchange of Notes.




     (b) The following provisions shall apply only to Global Notes:




     (i) Each Global Note authenticated under this Indenture shall be registered in
the name of the Depositary or a nominee thereof and delivered to such Depositary or
a nominee thereof or Custodian therefor, and each such Global Note shall constitute
a single Note for all purposes of this Indenture.




     (ii) Notwithstanding any other provision in this Indenture, no Global Note may
be exchanged in whole or in part for Notes registered, and no transfer of a Global
Note in whole or in part may be registered, in the name of any Person other than the
Depositary or a nominee thereof unless (1) the Depositary (x) has notified the
Company that it is unwilling or unable to continue as Depositary for such Global
Note or (y) has ceased to be a clearing agency registered under the Exchange Act,
and in each case a successor Depositary has not been appointed by the Company within
ninety (90) calendar days or (2) the Company, in its sole discretion, notifies the
Trustee in writing that it no longer wishes to have all the Notes represented by
Global Notes. Any Global Note exchanged pursuant to clause (1) above shall be so
exchanged in whole and not in part and any Global Note exchanged pursuant to clause
(2) above may be exchanged in whole or from time to time in part as directed by the
Company. Any Note issued in exchange for a Global Note or any portion thereof shall
be a Global Note; provided that any such Note so issued that is registered in the
name of a Person other than the Depositary or a nominee thereof shall not be a
Global Note.




     (iii) Notes issued in exchange for a Global Note or any portion thereof
pursuant to clause (ii) above shall be issued in Definitive Notes, shall have an
aggregate principal amount equal to that of such Global Note or portion thereof to
be so exchanged, shall be registered in such names and be in such authorized
denominations as the Depository shall designate and shall bear any legends required
hereunder. Any Global Note to be exchanged in whole shall be surrendered by the
Depository to the Trustee, as Note Registrar. With regard to any Global Note to be
exchanged in part, either such Global Note shall be so surrendered for exchange or,
if the Trustee is acting as Custodian for the Depository or its nominee with respect
to such Global Note, 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 make available for delivery the Note
issuable on such exchange to or upon the written order of the Depository or an
authorized representative thereof.



19









 






     (iv) In the event of the occurrence of any of the events specified in clause
(ii) above, the Company will promptly make available to the Trustee a reasonable
supply of Definitive Notes.




     (v) Neither any members of, or participants in, the Depositary (“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 Note registered in the name
of the Depositary or any nominee thereof, 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 Note 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 Note.




     (vi) At such time as all interests in a Global Note have been redeemed,
repurchased, exchanged or canceled for Definitive Notes in certificated form, such
Global Note shall, upon receipt thereof, be canceled by the Trustee in accordance
with standing procedures and instructions existing between the Depositary and the
Custodian. At any time prior to such cancellation, if any interest in a Global Note
is redeemed, repurchased, exchanged, or canceled for Definitive Notes, the principal
amount of such Global Note shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Custodian, be appropriately
reduced, and an endorsement shall be made on such Global Note, by the Trustee or the
Custodian, at the direction of the Trustee, to reflect such reduction.




     (c) Every Note (and all securities issued in exchange therefor or in substitution
thereof) that bears or is required under this Section 2.05(c) to bear any of the legends set
forth in this Section 2.05(c) (each, a “Restricted Notes Legend”), and any Common Stock that
bears or is required under this Section 2.05(c) to bear any of the Common Stock legends set
forth in this Section 2.05(c) (each, a “Common Stock Legend”) (collectively, the “Restricted
Securities”) shall be subject to the applicable restrictions on transfer set forth in this
Section 2.05(c) (including those set forth in the legends below) unless such restrictions on
transfer shall be waived by written consent of the Company, and the Holder of each such
Restricted Security, by such Note Holder’s acceptance thereof, agrees to be bound by all
such restrictions on transfer. As used in this Section 2.05(c), the term “transfer” means
any sale, pledge, loan, transfer or other disposition whatsoever of any Restricted Security
or any interest therein.



     Until the Maturity Date for the Notes, any certificate evidencing a Restricted Security shall
bear a legend in substantially the following applicable form, or unless otherwise agreed by the
Company in writing, with written notice thereof to the Trustee:



20









 





     Each Note sold by the Initial Purchasers to qualified institutional buyers other than
Affiliates of the Company, not in reliance on Regulation S, (a “Rule 144A Note”) (and all
securities issued in exchange therefor or in substitution thereof) and the Common Stock, if any,
issuable on conversion thereof, during the one year period after the issuance of such notes, or
such other period of time as permitted by Rule 144 under the Securities Act or any successor
provision, shall bear a legend substantially to the following effect, unless otherwise agreed by
the Company and the holder thereof:


[in the case of Notes: THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
HAVE] [in the case of Common Stock: THE COMMON STOCK HAS] NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY STATE OR FOREIGN SECURITIES LAWS, AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR A BENEFICIAL INTEREST HEREIN, THE ACQUIRER: (1) REPRESENTS
THAT (A) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION
WITH RESPECT TO EACH SUCH ACCOUNT OR (B) IT IS AN “ACCREDITED INVESTOR” (WITHIN THE MEANING OF RULE
501 UNDER REGULATION D OF THE SECURITIES ACT), (2) AGREES FOR THE BENEFIT OF GLG PARTNERS, INC.
(THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY
BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE ISSUE DATE
HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY
SUCCESSOR PROVISION THEREUNDER AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE
LAW, EXCEPT: (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE
AT THE TIME OF SUCH TRANSFER), OR (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, OR (D) TO AN ACCREDITED INVESTOR THAT IS ACQUIRING THE SECURITIES
FOR ITS OWN ACCOUNT, IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THE
SECURITIES ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. PRIOR TO THE
REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C), (2)(D), (2)(E) OR (2)(F), THE COMPANY AND
THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR
OTHER EVIDENCE AS MAY REASONABLY BE


21









 






REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE
SECURITIES ACT AND APPLICABLE STATE AND FOREIGN SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO
THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.




     Each Note sold by the Initial Purchasers to Persons other than Affiliates of the Company in
offshore transactions in compliance with Regulation S (a “Regulation S Note”) (and all securities
issued in exchange therefor or in substitution thereof) and the Common Stock, if any, issuable on
conversion thereof, shall bear a legend substantially to the following effect, unless otherwise
agreed by the Company and the holder thereof:


[in the case of Notes: THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
HAVE] [in the case of Common Stock: THE COMMON STOCK HAS] NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY STATE OR FOREIGN SECURITIES LAWS, AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES (AS DEFINED IN RULE
902(L) UNDER THE SECURITIES ACT) OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS (AS DEFINED
IN RULE 902(K) UNDER THE SECURITIES ACT) EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT IT IS NOT A U.S. PERSON AND IS PHYSICALLY OUTSIDE THE UNITED STATES AT
THE TIME IT IS ACQUIRING THE SECURITIES, (2) AGREES FOR THE BENEFIT OF GLG PARTNERS, INC. (THE
“COMPANY”) THAT IT WILL NOT WITHIN SIX MONTHS AFTER THE ORIGINAL ISSUANCE OF THE SECURITIES RESELL
OR OTHERWISE TRANSFER THE SECURITIES EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER), OR (C) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (D) PURSUANT TO
RULE 144 UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT, (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THE
SECURITIES ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND AND (4) IF IT HAS
ACQUIRED THE SECURITIES IN A TRANSACTION PURSUANT TO REGULATION S UNDER THE SECURITIES ACT, AGREES
THAT IT WILL NOT WITHIN SIX MONTHS ENGAGE IN HEDGING TRANSACTIONS INVOLVING THESE SECURITIES UNLESS
IN COMPLIANCE WITH THE SECURITIES ACT. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH
(2)(C), (2)(D) OR (2)(E), THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF
SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO
DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND
APPLICABLE STATE AND FOREIGN SECURITIES LAWS. NO


22









 






REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.




     Each Affiliate Note (and all securities issued in exchange therefor or in substitution
thereof) and the Common Stock, if any, issuable on conversion thereof, shall bear an Affiliate
Legend substantially to the following effect, or unless otherwise agreed by the Company in writing,
with written notice thereof to the Trustee:


[in the case of Notes: THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
HAVE] [in the case of Common Stock: THE COMMON STOCK HAS] NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY STATE OR FOREIGN SECURITIES LAWS, AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR A BENEFICIAL INTEREST HEREIN, THE ACQUIRER: (1) REPRESENTS
THAT IT IS AN “ACCREDITED INVESTOR” (WITHIN THE MEANING OF RULE 501 UNDER REGULATION D OF THE
SECURITIES ACT), (2) AGREES FOR THE BENEFIT OF GLG PARTNERS, INC. (THE “COMPANY”) THAT IT WILL NOT
OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT:
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BECOME EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER), OR (C) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, PROVIDED THAT ANY TRANSFEREE SHALL AGREE IN WRITING, SATISFACTORY TO THE
COMPANY, TO BE BOUND BY THE FOREGOING RESTRICTIONS AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON
TO WHOM THE SECURITIES ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. PRIOR
TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C) OR (2)(D), THE COMPANY AND THE
TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER
EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING
MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE AND FOREIGN SECURITIES LAWS. NO
REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.




     Any such Notes or shares of Common Stock as to which such restrictions on transfer shall have
expired in accordance with their terms or as to which the conditions for removal of the Restricted
Notes Legend or the Common Stock Legend set forth therein have been satisfied may, upon surrender
of the Notes or the certificates representing such shares of Common Stock for exchange in
accordance with the procedures of the Notes Registrar or the transfer agent for the Common Stock,
be exchanged for a new certificate or certificates for a like number of shares of



23









 







Common Stock, which shall not bear the Common Stock Legend required by this Section 2.05(c).




     (d) By its acceptance of any Note bearing a Restricted Notes Legend, each Holder of
such Note acknowledges the applicable restrictions on transfer of such Note set forth in
this Indenture and in such Restricted Notes Legend and agrees that it will transfer such
Note only as provided in this Indenture and as permitted by applicable law.




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




     (f) The Company and the Trustee shall have no responsibility or obligation to any Agent
Members or any other Person with respect to the accuracy of the books or records, or the
acts or omissions, of the Depositary or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Notes, with respect to the performance by the
Depositary or any Agent Members of their respective obligations under the rules and
procedures governing their operations, or with respect to the delivery to any Agent Member
or other Person (other than the Depositary) of any notice (including any notice of
redemption) or the payment of any amount, under or with respect to such Notes. All notices
and communications to be given to the Noteholders and all payments to be made to Noteholders
under the Notes shall be given or made only to or upon the order of the registered
Noteholders (which shall be the Depositary or its nominee in the case of a Global Note).
The rights of beneficial owners in any Global Note shall be exercised only through the
Depositary subject to the customary procedures of the Depositary. The Company and the
Trustee may rely and shall be fully protected in relying upon information furnished by the
Depositary with respect to its Agent Members.




     (g) Except for transfers or exchanges made in accordance with paragraphs (i) through
(iii) of this Section 2.05(g), transfers of a Global Note shall be limited to transfers of
such Global Note in whole, but not in part, to nominees of the Depositary or to a successor
of the Depositary or such successor’s nominee.




     (i) Global Note To Definitive Note. If an owner of a beneficial interest in a
Global Note deposited with the Depositary or with the Trustee as custodian for the
Depositary wishes at any time to transfer its interest in such Global Note to a
Person who is required to take delivery thereof in the form of a Definitive Note,
such owner may, subject to the restrictions on transfer set forth herein and such
Global Note and the applicable procedures of the Depositary, cause the exchange of
such interest for one or more Definitive Notes of any authorized denomination or
denominations and of the same aggregate principal amount. Upon receipt by the Note
Registrar of (1) instructions from the Depositary directing the Trustee to
authenticate and deliver one or more Definitive Notes of the same aggregate



24









 







principal amount as the beneficial interest in the Global Note to be exchanged
(such instructions to contain the name or names of the designated transferee or
transferees, the authorized denomination or denominations of the Definitive Notes to
be so issued and appropriate delivery instructions), and (2) in the case of a Note
that is a Restricted Security (a “Restricted Note”), such certifications or other
information and, in the case of transfers pursuant to Rule 144 under the Securities
Act, a letter from the transferee in substantially the form of Exhibit C and such
legal opinions as the Company may reasonably require to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, then the Note Registrar will
instruct the Depositary to reduce or cause to be reduced such Global Note by the
aggregate principal amount of the beneficial interest therein to be exchanged and to
debit or cause to be debited from the account of the Person making such transfer the
beneficial interest in the Global Note that is being transferred, and concurrently
with such reduction and debit the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Definitive Notes of the same aggregate
principal amount in accordance with the instructions referred to above. In the case
of a transfer to which clause 2 applies, the Note Registrar will not effect such
transfer until the Company has confirmed to the Note Registrar that it has received
all such certificates, other information and/or legal opinions as it has reasonably
requested.




     (ii) Definitive Note to Definitive Note. If a Holder of a Definitive Note
wishes at any time to transfer such Definitive Note (or portion thereof) to a Person
who is required to take delivery thereof in the form of a Definitive Note, such
Holder may, subject to the restrictions on transfer set forth herein and in such
Definitive Note, cause the transfer of such Definitive Note (or any portion thereof
in a principal amount equal to an authorized denomination) to such transferee. Upon
receipt by the Note Registrar of (1) such Definitive Note, duly endorsed as provided
herein, (2) instructions from such Holder directing the Trustee to authenticate and
deliver one or more Definitive Notes of the same aggregate principal amount as the
Definitive Note, or portion thereof, to be transferred (such instructions to contain
the name or names of the designated transferee or transferees, the authorized
denomination or denominations of the Definitive Notes to be so issued and
appropriate delivery instructions), (3) the assignment form on the back of the
Definitive Note completed in full and (4) in the case of a Restricted Note, such
certifications or other information (including, in the case of a transfer of an
Affiliate Note under circumstances where such Affiliate Note will be a “restricted
security” (within the meaning of Rule 144 under the Securities Act) in the hands of
the transferee, a certification from such transferee substantially in the form of
Exhibit B that such transferee will abide by the transfer restrictions contained in
the Affiliate Legend) and, in the case of transfers to persons pursuant to Rule 144
under the Securities Act, a letter from the transferee in substantially the form of
Exhibit C and, in either such case, legal opinions as the Company may reasonably
require to confirm that such transfer is



25









 







being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act, then the Note Registrar, shall
cancel or cause to be canceled such Definitive Note and concurrently therewith, the
Company shall execute, and the Trustee shall authenticate and deliver, one or more
Definitive Notes in the appropriate aggregate principal amount, in accordance with
the instructions referred to above and, if only a portion of a Definitive Note is
transferred as aforesaid, concurrently therewith the Company shall execute and the
Trustee shall authenticate and deliver to the transferor a Definitive Note in a
principal amount equal to the principal amount which has not been transferred. A
Holder of a Definitive Note may at any time exchange such Definitive Note for one or
more Definitive Notes of other authorized denominations and in the same aggregate
principal amount and registered in the same name by delivering such Definitive Note,
duly endorsed as provided herein, to the Trustee together with instructions
directing the Trustee to authenticate and deliver one or more Definitive Notes in
the same aggregate principal amount and registered in the same name as the
Definitive Note to be exchanged, and the Note Registrar thereupon shall cancel or
caused to be canceled such Definitive Note and concurrently therewith the Company
shall execute and Trustee shall authenticate and deliver, one or more Definitive
Notes in the same aggregate principal amount and registered in the same name as the
Definitive Note being exchanged. In the case of a transfer to which clause 4
applies, the Note Registrar will not effect such transfer until the Company has
confirmed to the Note Registrar that it has received all such certificates, other
information and/or legal opinions as it has reasonably requested.




     (iii) Definitive Note to Global Note. If a Holder of a Definitive Note wishes
at any time to transfer such Definitive Note (or portion thereof) to a Person who is
not required to take delivery thereof in the form of a Definitive Note, such Holder
shall, subject to the restrictions on transfer set forth herein and in such
Definitive Note and the rules of the Depositary cause the exchange of such
Definitive Note for a beneficial interest in the Global Note. Upon receipt by the
Note Registrar of (1) such Definitive Note, duly endorsed as provided herein, (2)
instructions from such Holder directing the Trustee to increase the aggregate
principal amount of the Global Note deposited with the Depositary or with the
Trustee as custodian for the Depositary by the same aggregate principal amount as
the Definitive Note to be exchanged, such instructions to contain the name or names
of a member of, or participant in, the Depositary that is designated as the
transferee, the account of such member or participant and other appropriate delivery
instructions, (3) the assignment form on the back of the Definitive Note completed
in full, (4) in the case of a Restricted Note, such certifications or other
information and legal opinions (which, along with a certification from the
transferee in substantially the form of Exhibit C, shall be required in the case of
transfers of any Note of the Company pursuant to Rule 144 under the Securities Act),
as the Company may reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the



26









 







registration requirements of the Securities Act and (5) in the case of any
transfer of an Affiliate Note, a letter from the transferee in substantially the
form of Exhibit B and such certifications, information and legal opinions as the
Company may reasonably require to confirm that such Note, after giving effect to
such transfer, is not a “restricted security” within the meaning of Rule 144 of the
Securities Act, no longer required to bear the Affiliate Legend, then the Trustee
shall cancel or cause to be canceled such Definitive Note and concurrently therewith
shall increase the aggregate principal amount of the Global Note by the same
aggregate principal amount as the Definitive Note canceled; provided, that in the
case of any transfer of an Affiliate Note to a Person taking delivery thereof as a
beneficial interest in a Global Note, any such transfer shall be made only pursuant
either (i) in a transaction complying with Rule 144 or (ii) pursuant to an effective
shelf registration statement, such effectiveness to be certified by the Company to
the Trustee or (iii) to Persons who agree to be bound by the restrictions applicable
to such Holders for so long as such transferred securities constitutes “restricted
securities.” In the case of a transfer to which clause 4 or clause 5 applies, the
Note Registrar will not effect such transfer until the Company has confirmed to the
Note Registrar that it has received all such certificates, other information and/or
legal opinions as it has reasonably requested.



     The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Note (including any transfers between or among Agent Members
in any Global Indenture) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by a written direction from the Company.



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



     Following receipt by the Trustee or such authenticating agent, as the case may be, of
satisfactory security or indemnity and evidence, as described in the preceding paragraph, the
Trustee or such authenticating agent may authenticate any such substituted Note and make available
for delivery such Note. Upon the issuance of any substituted Note, the Company may require the
payment by the Holder of a sum sufficient to cover any tax, assessment or other governmental charge
that may be imposed in relation thereto and any other expenses connected



27









 







therewith. In case any Note that has matured or is about to mature or has been called for
redemption or has been properly tendered for repurchase on a Designated Event Repurchase Date (and
not withdrawn) or has been tendered for repurchase on a Repurchase Date (and not withdrawn), as the
case may be, or is to be exchanged or converted pursuant to this Indenture, shall become mutilated
or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Note, pay or
authorize the payment of or exchange or convert or authorize the exchange or conversion of the same
(without surrender thereof except in the case of a mutilated Note), as the case may be, if the
applicant for such payment or exchange or conversion shall furnish to the Company, to the Trustee
and, if applicable, to such authenticating agent such security or indemnity as may be required by
them to save each of them harmless for any loss, liability, cost or expense caused by or in
connection with such substitution, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company, the Trustee and, if applicable, any Paying Agent or Conversion
Agent evidence to their satisfaction of the destruction, loss or theft of such Note and of the
ownership thereof.



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



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



28









 







benefits and subject to the same limitations under this Indenture as Notes in certificated form
authenticated and delivered hereunder.



     Section 2.08. Cancellation of Notes. All Notes surrendered for the purpose of payment, redemption,
repurchase, exchange, conversion or registration of transfer shall, if surrendered to the Company
or any paying agent to whom Notes may be presented for payment (the “Paying Agent”) or any
conversion agent to whom the Notes may be presented for conversion (the “Conversion Agent”), which
in each case shall initially be The Bank of New York Mellon, or any Note Registrar, be surrendered
to the Trustee and promptly canceled by it or, if surrendered to the Trustee, shall be promptly
canceled by it and no Notes shall be issued in lieu thereof except as expressly permitted by any of
the provisions of this Indenture. The Trustee shall dispose of such canceled Notes in accordance
with its customary procedures. If the Company shall acquire any of the Notes, such acquisition
shall not operate as a redemption, repurchase or satisfaction of the indebtedness represented by
such Notes unless and until the same are delivered to the Trustee for cancellation.



     Section 2.09. CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a
convenience to Noteholders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Notes or as contained in any notice
of a redemption and that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in the “CUSIP” numbers.



ARTICLE 3

REPURCHASE OF NOTES




     Section 3.01. Sinking Fund. There shall be no sinking fund provided for the Notes.



     Section 3.02. Repurchase at Option of Holders Upon a Designated Event.




     (a) If there shall occur a Designated Event at any time prior to maturity of the Notes,
then each Noteholder shall have the right, at such Holder’s option, to require the Company
to repurchase all of such Holder’s Notes, or any portion thereof that is an integral
multiple of $1,000 principal amount, in cash, on a date (the “Designated Event Repurchase
Date”) specified by the Company, which may be no earlier than fifteen (15) days and no later
than thirty (30) days after the date of the Company Repurchase Notice related to such
Designated Event, at a repurchase price equal to 100% of the principal amount of the Notes
being repurchased, plus accrued and unpaid interest to, but excluding, the Designated Event
Repurchase Date; provided, however, that if the Designated Event Repurchase Date falls after
a Record Date and on or prior to the corresponding interest payment date, the Company will
pay the full amount of accrued and unpaid interest, if any, on such interest payment date to
the Holder of record at the close of business on the corresponding Record Date, and the
repurchase price will be 100% of the principal amount of the Notes to be repurchased.



29









 






     (b) On or before the tenth calendar day after the occurrence of a Designated Event, the
Company shall mail or cause to be mailed (or sent by electronic transmission) to all Holders
of record on the date of the Designated Event (and to beneficial owners as required by
applicable law) a Company Repurchase Notice as set forth in Section 3.03 with respect to
such Designated Event. The Company shall also deliver a copy of the Company Repurchase
Notice to the Trustee and the Paying Agent at such time as it is mailed to Noteholders. In
addition to the mailing of such Company Repurchase Notice, the Company shall disseminate a
press release through Dow Jones & Company, Inc. or Bloomberg Business News announcing the
occurrence of such Designated Event or publish such information in The Wall Street Journal
or another newspaper of general circulation in The City of New York or on the Company’s
website, or through such other public medium as the Company shall deem appropriate at such
time.



     No failure of the Company to give the foregoing notices and no defect therein shall limit the
Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the
Notes pursuant to this Section 3.02.




     (c) For a Note to be repurchased at the option of the Holder pursuant to this Section
3.02, the Holder must deliver to the Paying Agent, prior to 5:00 p.m., New York City time,
on the second Business Day immediately prior to the Designated Event Repurchase Date, (i) a
written notice of repurchase (the “Designated Event Repurchase Notice”) in the form set
forth on the reverse of the Note duly completed (if the Note is certificated) or stating the
following (if the Note is represented by a Global Note): (A) the certificate number of the
Note that the Holder will deliver to be repurchased (if the Note is certificated) or that
the relevant Designated Event Repurchase Notice complies with the appropriate Depositary
procedures (if the Note is represented by a Global Note), (B) the portion of the principal
amount of the Note which the Holder will deliver to be repurchased, which portion must be in
principal amounts of $1,000 or an integral multiple of $1,000 (provided that the remaining
principal amount of Notes held by such Holder that are not subject to repurchase must be in
an authorized denomination) and (C) that such Note shall be repurchased as of the Designated
Event Repurchase Date pursuant to the terms and conditions specified in the Note and in this
Indenture; together with (ii) such Notes duly endorsed for transfer (if the Note is
certificated) or book-entry transfer of such Note (if such Note is represented by a Global
Note). The delivery of such Note to the Paying Agent with, or at any time after delivery
of, the Repurchase Notice (together with all necessary endorsements) at the office of the
Paying Agent shall be a condition to the receipt by the Holder of the repurchase price
therefore; provided, however, that such repurchase price shall be so paid pursuant to this
Section 3.02 only if the Notes so delivered to the Paying Agent shall conform in all
respects to the description thereof in the Repurchase Notice. All questions as to the
validity, eligibility (including time of receipt) and acceptance of any Note for repurchase
shall be determined by the Company, whose determination shall be final and binding absent
any manifest error.




     (d) The Company, if so requested, shall repurchase from the Holder thereof, pursuant to
this Section 3.02, a portion of a Note, if the principal amount of such portion



30









 








is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to
the repurchase of all of a Note also apply to the repurchase of such portion of such Note.




     (e) Notwithstanding the foregoing, no Notes may be repurchased by the Company pursuant
to this Section 3.02 if the principal amount of the Notes has been accelerated, and such
acceleration has not been rescinded or cured, on or prior to the relevant Designated Event
Repurchase Date (except in the case of an acceleration resulting from a default by the
Company in the payment of the repurchase price pursuant to this Section 3.02 with respect to
the Notes to be repurchased).




     (f) The Paying Agent shall promptly notify the Company of the receipt by it of any
Designated Event Repurchase Notice or written notice of withdrawal thereof.



     Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.02
shall be consummated by the delivery of the consideration to be received by the Holder (i) on the
Designated Event Repurchase Date if the book-entry transfer or delivery of the Notes to the Paying
Agent is effected prior to 5:00 p.m., New York City time, on the second Business Day prior to the
Designated Event Repurchase Date, and (ii) if delivered later, within two (2) Business Days
following the time of the book-entry transfer or delivery of the Note. Payment of the repurchase
price for a Note for which a Designated Event Repurchase Notice has been delivered and not
withdrawn is conditioned upon book-entry transfer or delivery of the Notes, together with necessary
endorsements, to the Paying Agent.



     Section 3.03. Company Repurchase Notice.




     (a) The Company Repurchase Notice, as provided in Section 3.02(b), shall be given to
Holders in the event of a Designated Event, on or before the tenth calendar day after the
occurrence of such a Designated Event as provided in Section 3.02(b) (the “Company
Repurchase Notice Date”).




     (b) In connection with any repurchase of Notes, the Company shall, on the applicable
Company Repurchase Notice Date, give written notice to Holders (with a copy to the Trustee)
setting forth information specified in this Section 3.03 (the “Company Repurchase Notice”).



Each Company Repurchase Notice shall:




     (i) state the repurchase price, and the Designated Event Repurchase Date to
which the relevant Company Repurchase Notice relates;




     (ii) state the circumstances constituting the Designated Event;




     (iii) state that Holders must exercise their right to elect to repurchase prior
to 5:00 p.m., New York City time, on the second Business Day immediately prior to
the Designated Event Repurchase Date;




     (iv) include a form of Designated Event Repurchase Notice;



31









 






     (v) state the name and address of the Trustee, the Paying Agent and, if
applicable, the Conversion Agent;




     (vi) state that Notes must be surrendered to the Paying Agent to collect the
repurchase price;




     (vii) state that a Holder may withdraw its Designated Event Repurchase Notice
at any time prior to 5:00 p.m., New York City time, on the second Business Day
immediately prior to the Designated Event Repurchase Date by delivering a valid
written notice of withdrawal in accordance with Section 3.04;




     (viii) if the Notes are then convertible, state that Notes as to which a
Designated Event Repurchase Notice has been given may be converted only if the
Designated Event Repurchase Notice is withdrawn in accordance with the terms of this
Indenture;




     (ix) state the amount of interest accrued and unpaid per $1,000 principal
amount of Notes to, but excluding, the Designated Event Repurchase Date;




     (x) state that, unless the Company defaults in making payment of the repurchase
price, interest on Notes covered by any Designated Event Repurchase Notice shall
cease to accrue on and after the Designated Event Repurchase Date;




     (xi) state the CUSIP number of the Notes, if CUSIP numbers are then in use; and




     (xii) state the procedures for withdrawing a Designated Event Repurchase
Notice, including a form of notice of withdrawal (as specified in Section 3.04).



     A Company Repurchase Notice may be given by the Company or, at the Company’s request, the
Trustee shall give such Company Repurchase Notice in the Company’s name and at the Company’s
expense; provided that the text of the Company Repurchase Notice shall be prepared by the Company.



     If any of the Notes is represented by a Global Note, then the Company will modify such Company
Repurchase Notice to the extent necessary to accord with the applicable procedures of the
Depositary that apply to the repurchase of Global Notes.




     (c) The Company will, to the extent applicable, comply with the provisions of Rule
13e-4 and Rule 14e-1 (or any successor provision) under the Exchange Act that may be
applicable at the time of the repurchase of the Notes, file the related Schedule TO (or any
successor schedule, form or report) under the Exchange Act and comply with all other
applicable federal and state securities laws in connection with the repurchase of the Notes.



32









 





     Section 3.04. Effect of Repurchase Notice; Withdrawal. Upon receipt by the Paying Agent of the
Designated Event Repurchase Notice, the Holder of the Note in respect of which such Designated
Event Repurchase Notice was given shall (unless such Designated Event Repurchase Notice is validly
withdrawn in accordance with this Section 3.04) thereafter be entitled to receive solely the
repurchase price with respect to such Note.



     Notes in respect of which a Designated Event Repurchase Notice has been given by the Holder
thereof may not be converted pursuant to Article 13 hereof on or after the date of the delivery of
such Designated Event Repurchase Notice unless such Designated Event Repurchase Notice has first
been validly withdrawn.



     A Designated Event Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent at any time prior to 5:00 p.m., New York
City time, on the second Business Day immediately prior to the Designated Event Repurchase Date
specifying:




     (a) the name of the Holder;




     (b) the certificate number(s) of all withdrawn Notes in certificated form or that the
notice of withdrawal complies with appropriate Depositary procedures with respect to all
withdrawn Notes represented by a Global Note;




     (c) the principal amount of Notes with respect to which such notice of withdrawal is
being submitted, which must be an integral multiple of $1,000; and




     (d) the principal amount of Notes, if any, that remains subject to the original
Designated Event Repurchase Notice and that has been or will be delivered for repurchase by
the Company.



     If a Designated Event Repurchase Notice is properly withdrawn, the Company shall not be
obligated to repurchase the Notes listed in such Designated Event Repurchase Notice.



     Section 3.05. Deposit of Repurchase Price.




     (a) Prior to 11:00 a.m., New York City time, on the Designated Event Repurchase Date
the Company shall deposit with the Paying Agent or, if the Company is acting as the Paying
Agent, shall segregate and hold in trust as provided in Section 4.04 an amount of cash (in
immediately available funds if deposited on the Designated Event Repurchase Date),
sufficient to pay the aggregate repurchase price of all the Notes or portions thereof that
are to be repurchased as of the Designated Event Repurchase Date.




     (b) If on the Designated Event Repurchase Date the Paying Agent holds money sufficient
to pay the repurchase price of the Notes that Holders have elected to require the Company to
repurchase in accordance with Section 3.02 then, on the Designated Event Repurchase Date
such Notes will cease to be outstanding, interest will cease to accrue and all other rights
of the Holders of such Notes will terminate, other than



33









 







the right to receive the repurchase price upon delivery or book-entry transfer of the
Note. This will be the case whether or not book-entry transfer of the Note has been made or
the Note has been delivered to the Paying Agent.



     Section 3.06. Notes Repurchased in Part. Upon presentation of any Note repurchased only in part,
the Company shall execute and the Trustee shall authenticate and make available for delivery to the
Holder thereof, at the expense of the Company, a new Note or Notes in aggregate principal amount
equal to the unrepurchased portion of the Notes presented (provided that the unrepurchased portion
of the Notes must be in a denomination of $100,000 or an integral multiple of $1,000 in excess
thereof).



     Section 3.07. Repayment to the Company. Subject to Section 11.04, the Paying Agent shall return to
the Company any cash that remains unclaimed, together with interest, if any, thereon, held by it
for the payment of the repurchase price; provided that to the extent that the aggregate amount of
cash deposited by the Company pursuant to Section 3.05 exceeds the aggregate repurchase price of
the Notes or portions thereof which the Company is obligated to repurchase as of the Designated
Event Repurchase Date then, unless otherwise agreed in writing with the Company, promptly after the
second Business Day following the Designated Event Repurchase Date the Paying Agent shall return
any such excess to the Company, together with interest, if any, thereon.



ARTICLE 4

PARTICULAR COVENANTS OF THE COMPANY




     Section 4.01. Payment of Principal, Premium and Interest; Additional Amounts.




     (a) The Company covenants and agrees that it will duly and punctually pay or cause to
be paid when due the principal of (including the repurchase price upon repurchase pursuant
to Article 3), and premium, if any, and interest on each of the Notes at the places, at the
respective times and in the manner provided herein and in the Notes.




     (b) All payments in respect of the Notes will be made without withholding or deduction
for or on account of any present or future taxes or duties of whatever nature imposed or
levied by or on behalf of any jurisdiction other than the United States (“Relevant Taxing
Jurisdiction”) or any political subdivision or any authority thereof or therein having power
to tax unless such withholding or deduction is required by law. If, as a result of a
Redomiciliation (as defined below) by the Company, any amounts are required to be so
withheld or deducted, the Company will pay such additional amounts as shall be necessary in
order that the net amounts received by the Holders of the Notes after such withholding or
deduction shall equal the respective amounts which would otherwise have been receivable in
respect of the Notes in the absence of such withholding or deduction (“Additional Amounts”);
except that no such Additional Amounts shall be payable with respect to any Note:




     (i) presented for payment by or on behalf of a Holder or a beneficial owner of
a Holder who is liable for such taxes or duties in respect of such Note by



34









 







reason of his having some connection with the Relevant Taxing Jurisdiction or
any political subdivision or any authority thereof or therein other than the mere
holding of such Note; or




     (ii) presented for payment more than 30 days after the Relevant Date (as
defined below) except to the extent that the Holder thereof would have been entitled
to an Additional Amount on presenting the same for payment on such 30th day; or




     (iii) where such withholding or deduction is imposed on a payment to an
individual and is required to be made pursuant to EC Council Directive 2003/48/EC or
any law implementing or complying with, or introduced in order to conform to, such
Directive; or




     (iv) presented for payment by or on behalf of a Holder who would be able to
avoid such withholding or deduction by presenting the relevant Note to another
Paying Agent in a Member State of the European Union; or




     (v) presented for payment by or on behalf of a Holder who would not be liable
or subject to the withholding or deduction by making a declaration of non-residence
or other similar claim for exemption to the relevant tax authority.



     As used herein, the “Relevant Date” means the date on which such payment first becomes due,
except that, if the full amount of the moneys payable has not been duly received by the Paying
Agent on or prior to such due date, “Relevant Date” means the date on which the full amount of such
moneys have been so received.



     The Company will (i) make any required withholding or deduction and (ii) remit the full amount
deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The
Company will use all reasonable efforts to obtain certified copies of tax receipts evidencing the
payment of any taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such
taxes and will provide such certified copies to each Holder. The Company will attach to each
certified copy a certificate stating (x) that the amount of withholding taxes evidenced by the
certified copy was paid in connection with payments in respect of the principal amount of Notes
then outstanding and (y) the amount of such withholding taxes paid per $1,000 principal amount of
the Notes. Copies of such documentation will be available for inspection during ordinary business
hours at the office of the Trustee by the Holders of the Notes upon request and will be made
available at the offices of the Paying Agent.



     At least 30 days prior to the Relevant Date with respect to a payment, if the Company will be
obligated to pay Additional Amounts with respect to such payment, the Company will deliver to the
Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the
amounts so payable and will set forth such other information necessary to enable the Trustee to pay
such Additional Amounts to Holders on the payment date. Each such Officer’s Certificate shall be
relied upon until receipt of a further Officer’s Certificate addressing such matters.



35









 





     Wherever in this Indenture or the Notes there are mentioned, in any context, the payment of
principal, purchase prices in connection with a purchase of Notes, interest, or any other amount
payable on or with respect to the Notes, such reference shall be deemed to include payment of
Additional Amounts as described under this Section 4.01 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof.



     Section 4.02. Maintenance of Office or Agency. The Company will maintain an office or agency in
the United States, which shall initially be The City of New York, New York, where the Notes may be
surrendered for registration of transfer or exchange or for presentation for payment or for
conversion, redemption or repurchase and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. As of the date of this Indenture, such
office shall be the Corporate Trust Office and, at any other time, at such other address as the
Trustee may designate from time to time by notice to the Company. The Company will give prompt
written notice to the Trustee of the location, and any change in the location, of such office or
agency not designated or appointed by 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 Corporate
Trust Office.



     The Company may also from time to time designate co-registrars and one or more offices or
agencies where the Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any such other office or
agency.



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



     So long as the Trustee is the Note Registrar, the Trustee agrees to send by electronic
transmission, mail, or cause to be mailed, the notices set forth in Section 7.10 and the third
paragraph of Section 7.11. If co-registrars have been appointed in accordance with this Section
4.02, the Trustee shall mail such notices only to the Company and the Holders of Notes it can
identify from the Note Register.



     Section 4.03. Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever necessary
to avoid or fill a vacancy in the office of Trustee, will appoint, upon the terms and conditions
and otherwise as provided in Section 7.10, a Trustee, so that there shall at all times be a Trustee
hereunder.



     Section 4.04. Provisions as to Paying Agent.




     (a) If the Company shall appoint a Paying Agent other than the Trustee, or if the
Trustee shall appoint such a Paying Agent, the Company will cause such Paying



36









 







Agent to execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section 4.04:




     (i) that it will hold all sums held by it as such agent for the payment of the
principal of and premium, if any, or interest on the Notes (whether such sums have
been paid to it by the Company or by any other obligor on the Notes) in trust for
the benefit of the Holders of the Notes;




     (ii) that it will give the Trustee notice of any failure by the Company (or by
any other obligor on the Notes) to make any payment of the principal of and premium,
if any, or interest on the Notes when the same shall be due and payable; and




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



     The Company shall, on or before 10:00 a.m., New York City time, at least one Business Day
prior to each due date of the principal of, premium, if any, or interest on the Notes, deposit with
the Paying Agent in New York City a sum (in funds that are immediately available for such payment)
sufficient to pay such principal, premium, if any, or interest, or any other amounts due, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of any
failure to take such action.




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




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




     (d) Anything in this Section 4.04 to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section 4.04 is subject to Section 11.02 and Section
11.03.



37









 





     The Trustee shall not be responsible for the actions of any other Paying Agents (including the
Company if acting as its own Paying Agent) and shall have no control of any funds held by such
other Paying Agents.



     Section 4.05. Existence. Subject to Article 10, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and rights (charter and
statutory).



     Section 4.06. Rule 144A Information Requirement. If so required by Rule 144A the Company will
promptly furnish to the Holders, beneficial owners and prospective purchasers of the Notes and of
any Common Stock delivered upon conversion of the Notes, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) to facilitate the resale of the Notes and the
Common Stock pursuant to Rule 144A.



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



     Section 4.08. Compliance Certificate. Within one hundred twenty (120) calendar days after the end
of each fiscal year of the Company, the Company shall deliver to the Trustee an Officers’
Certificate stating whether or not the signers have knowledge of any default under this Indenture,
and, if so, specifying each default or Event of Default and the nature and the status thereof.



     The Company will deliver to the Trustee, promptly upon becoming aware of (i) any default in
the performance or observance of any covenant, agreement or condition contained in this Indenture,
or (ii) any Event of Default, an Officers’ Certificate specifying with particularity such default
or Event of Default and further stating what action the Company has taken, is taking or proposes to
take with respect thereto.



     Any notice required to be given under this Section 4.08 shall be delivered to a Responsible
Officer of the Trustee at its Corporate Trust Office.



     Section 4.09. Additional Interest Notice. In the event that the Company is required to pay
Additional Interest to Holders of Notes pursuant to the Registration Rights Agreement, the Company
will provide written notice (“Additional Interest Notice”) to the Trustee of its obligation to pay
Additional Interest no later than fifteen (15) calendar days prior to the proposed interest payment
date for Additional Interest, and the Additional Interest Notice shall set forth the amount of
Additional Interest to be paid by the Company on such interest payment date. The



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Trustee shall not at any time be under any duty or responsibility to any Holder of Notes to
determine the Additional Interest, or with respect to the nature, extent or calculation of the
amount of Additional Interest when made, or with respect to the method employed in such calculation
of the Additional Interest.



ARTICLE 5

NOTEHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE




     Section 5.01. Noteholders’ Lists. The Company covenants and agrees that it will furnish or cause
to be furnished to the Trustee, semiannually, not more than fifteen (15) calendar days after each
May 15 and November 15 of each year beginning with November 15, 2009, and at such other times as
the Trustee may reasonably request in writing, within thirty (30) calendar days after receipt by
the Company of any such request (or such lesser time as the Trustee may reasonably request in order
to enable it to timely provide any notice to be provided by it hereunder), a list in such form as
the Trustee may reasonably require of the names and addresses of the Holders of Notes as of a date
not more than fifteen (15) calendar days (or such other date as the Trustee may reasonably request
in order to so provide any such notices) prior to the time such information is furnished, except
that no such list need be furnished by the Company to the Trustee so long as the Trustee is acting
as the sole Note Registrar.



     Section 5.02. Preservation and Disclosure of Lists.




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




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




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



     Section 5.03. Reports by Trustee.




     (a) Within sixty (60) calendar days after May 15 of each year beginning with May 15,
2010, the Trustee shall transmit to Holders of Notes such reports dated as of May 15 of the
year in which such reports are made concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. In the event that no events have occurred



39









 







under the applicable sections of the Trust Indenture Act the Trustee shall be under no
duty or obligation to provide such reports.




     (b) A copy of such report shall, at the time of such transmission to Holders of Notes,
be filed by the Trustee with each stock exchange and automated quotation system, if any,
upon which the Notes are listed and with the Company and, at such time, if any, as the
Indenture is qualified under the Trust Indenture Act, with the SEC. The Company will
promptly notify the Trustee in writing if the Notes are listed on any stock exchange or
automated quotation system or delisted therefrom.



     Section 5.04. Reports by Company. Whether or not the Company is subject to Section 13 or 15(d) of
the Exchange Act and for so long as any Notes are outstanding, within the time periods required by
the applicable rules and regulations of the Commission, the Company will furnish to the Holders of
the Notes, or cause the Trustee to furnish to the Holders of the Notes, (1) all quarterly and
annual reports that would be required to be filed with the Commission on Forms 10-Q and 10-K if the
Company were required to file such reports; and (2) all current reports that would be required to
be filed with the Commission on Form 8-K if the Company were required to file such reports.
Delivery of such reports, information and documents to the Trustee is for informational purposes
only and the Trustee’s receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on an Officers’ Certificate).



ARTICLE 6

REMEDIES OF THE TRUSTEE AND NOTEHOLDERS

ON AN EVENT OF DEFAULT




     Section 6.01. Events of Default. In case one or more of the following (“Events of Default”)
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body) shall have occurred and be
continuing:




     (a) default for thirty (30) days in the payment of any installment of interest under
the Notes, whether or not such payment is prohibited by the subordination provisions set
forth in Article 15; or




     (b) default in the payment of the principal amount or any repurchase price due with
respect to the Notes including upon a Change of Control, when the same becomes due and
payable, whether or not such payment is prohibited by the subordination provisions of
Article 15; or




     (c) the Company fails to deliver all shares of Common Stock when such Common Stock is
required to be delivered upon conversion of any Notes, and such default continues for
fifteen (15) Business Days; or



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     (d) the Company fails to comply with any of the Company’s other agreements contained in
the Notes or this Indenture upon receipt by the Company of notice of such default by the
Trustee or by Holders of not less than 25% in aggregate principal amount of the Notes then
outstanding and the Company fails to cure (or obtain a waiver of) such default within
seventy-five (75) days after the Company receives such notice; or




     (e) failure to pay any indebtedness for money borrowed by the Company or any
Subsidiaries in an outstanding principal amount of in excess of $25,000,000 or more when
such indebtedness becomes due and payable, at scheduled maturity or upon a required
prepayment (after giving effect to any applicable grace period provided in such
indebtedness) or upon acceleration, which indebtedness is not discharged, or such default in
payment or acceleration is not cured or rescinded, within thirty (30) days after written
notice to the Company from the Trustee (or to the Company and the Trustee from Holders of at
least 25% in principal amount of the outstanding Notes); or




     (f) the Company fails to provide on ten (10) days’ notice in connection with the
occurrence of a Designated Event and the Company fails to cure (or obtain a waiver of) such
default within twenty (20) Business Days after the occurrence of a Designated Event as
provided in Section 3.03(b); or




     (g) the Company or any of its Significant Subsidiaries pursuant to or under or within
the meaning of any Bankruptcy Law:




     (i) commences a voluntary case or proceeding seeking liquidation,
reorganization or other relief with respect to the Company or a Significant
Subsidiary or its debts under any Bankruptcy Law or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of the Company or
a Significant Subsidiary or any substantial part of the property of the Company or a
Significant Subsidiary; or




     (ii) consents to any such relief or to the appointment of or taking possession
by any such official in an involuntary case or other proceeding commenced against
the Company or a Significant Subsidiary; or




     (iii) consents to the appointment of a custodian of it or for all or
substantially of its property; or




     (iv) makes a general assignment for the benefit of creditors; or




     (h) an involuntary case or other proceeding shall be commenced against the Company or
any of its Significant Subsidiaries seeking liquidation, reorganization or other relief with
respect to the Company or a Significant Subsidiary or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of the Company or a
Significant Subsidiary or any substantial part of the property of the



41









 








Company or a Significant Subsidiary, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of sixty (60) calendar days; or




     (i) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:




     (i) is for relief against the Company or any of its Significant Subsidiaries in
an involuntary case or proceeding; or




     (ii) appoints a trustee, receiver, liquidator, custodian or other similar
official of the Company or a Significant Subsidiary or any substantial part of the
property of the Company or a Significant Subsidiary; or




     (iii) orders the liquidation of the Company or a Significant Subsidiary; and,
in each case in this clause (i), the order or decree remains unstayed and in effect
for sixty (60) calendar days;



then, and in each and every such case (other than an Event of Default specified in
Sections 6.01(g), 6.01(h) and 6.01(i)), unless the principal of all of the Notes shall have already
become due and payable, either the Trustee or the Holders of at least twenty-five percent (25%) in
aggregate principal amount of the Notes then outstanding, by notice in writing to the Company (and
to the Trustee if given by Noteholders), may declare the principal amount of and premium, if any,
and interest accrued and unpaid on all the Notes to be immediately due and payable, and upon any
such declaration the same shall be immediately due and payable.



     If an Event of Default specified in Section 6.01(g), 6.01(h) or 6.01(i) occurs, the principal
amount of and premium, if any, and interest accrued and unpaid on all the Notes shall be
immediately and automatically due and payable without necessity of further action.



     If, at any time after the principal amount of and premium, if any, and interest on the Notes
shall have been so declared due and payable, and before any judgment or decree for the payment of
the monies due shall have been obtained or entered as hereinafter provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding on behalf of the Holders of all of the
Notes then outstanding, by written notice to the Company and to the Trustee, may waive all defaults
or Events of Default and rescind and annul such declaration and its consequences, subject in all
respects to Section 6.07, if: (a) all Events of Default, other than the nonpayment of the principal
amount and any accrued and unpaid interest that have become due solely because of such
acceleration, have been cured or waived; and (b) the Company has deposited with the Trustee all
required payments of the principal of and interest on, the Notes, plus the reasonable compensation
and reimbursement for the Trustee’s expenses, disbursements and advances pursuant to Section 7.06.
No such rescission and annulment shall extend to or shall affect any subsequent default or Event of
Default, or shall impair any right consequent thereon. The Company shall notify in writing a
Responsible Officer of the Trustee, promptly upon becoming aware thereof, of any default or Event
of Default, as provided in Section 4.08.



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



     Section 6.02. Payments of Notes on Default; Suit Therefor. The Company covenants that in the case
of an Event of Default pursuant to Section 6.01(a) or 6.01(b), upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the Holders of the Notes, (i) the whole amount
that then shall be due and payable on all such Notes for principal and premium, if any, or
interest, as the case may be, with interest upon the overdue principal and premium, if any, and (to
the extent that payment of such interest is enforceable under applicable law) upon the overdue
installments of accrued and unpaid interest at the rate borne by the Notes, plus 1%, from the
required payment date and, (ii) in addition thereto, any amounts due the Trustee under Section
7.06. Until such demand by the Trustee, the Company may pay the principal of and premium, if any,
and interest on the Notes to the registered Holders, whether or not the Notes are overdue.



     In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and empowered to institute any
actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and
may prosecute any such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the Notes and collect in the
manner provided by law out of the property of the Company or any other obligor on the Notes
wherever situated the monies adjudged or decreed to be payable.



     In case there shall be pending proceedings for the bankruptcy or for the reorganization of the
Company or any other obligor on the Notes under any Bankruptcy Law, or any other applicable law, or
in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator
or similar official shall have been appointed for or taken possession of the Company or such other
obligor, the property of the Company or such other obligor, or in the case of any other judicial
proceedings relative to the Company or such other obligor upon the Notes, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of whether the principal
of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this
Section 6.02, shall be entitled and empowered, by intervention in such proceedings or otherwise, to
file and prove a claim or claims for the whole amount of principal, premium, if any, accrued and
unpaid interest in respect of the Notes, and, in case of any judicial proceedings, to file such
proofs of claim and other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee and of the Noteholders allowed in such judicial proceedings relative to the
Company or any other obligor on the Notes, its or their creditors, or its or their property, and to
collect and receive any monies or other property payable or deliverable on any such claims, and to
distribute the same after the deduction of any amounts due the Trustee under Section 7.06, and to
take any other action with respect to



43









 







such claims, including participating as a member of any official committee of creditors, as it
reasonably deems necessary or advisable, unless prohibited by law or applicable regulations, and
any receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar
official is hereby authorized by each of the Noteholders to make such payments to the Trustee, and,
in the event that the Trustee shall consent to the making of such payments directly to the
Noteholders, to pay to the Trustee any amount due it for reasonable compensation, expenses,
advances and disbursements, including reasonable counsel fees and expenses incurred by it up to the
date of such distribution (including extraordinary expenses of the Trustee’s Default Administration
Unit or any successor unit). To the extent that such payment of reasonable compensation, expenses,
advances and disbursements out of the estate in any such proceedings shall be denied for any
reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, monies, securities and other property which the Holders of the Notes may
be entitled to receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.



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



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



     Section 6.03. Application of Monies Collected by Trustee. Any monies collected by the Trustee
pursuant to this Article 6, shall be applied, in the following order, at the date or dates fixed by
the Trustee for the distribution of such monies, upon presentation of the several Notes, and
stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:



     FIRST: To the payment of all amounts due the Trustee under Section 7.06;



     SECOND: Subject to the provisions of Article 15, in case the principal of the outstanding
Notes shall not have become due and be unpaid, to the payment of accrued and unpaid interest, if
any, on the Notes in default in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected by the Trustee) as provided in
Section 6.02 upon the overdue installments of interest at the annual rate of 1% above then
applicable interest rate, such payments to be made ratably to the Persons entitled thereto;



     THIRD: Subject to the provisions of Article 15, in case the principal of the outstanding Notes
shall have become due, by declaration or otherwise, and be unpaid to the payment of the whole
amount then owing and unpaid upon the Notes for principal and premium, if any, and



44









 







interest, with interest on the overdue principal and premium, if any, and (to the extent that
such interest has been collected by the Trustee) upon overdue installments of accrued and unpaid
interest, as provided in Section 6.02, and in case such monies shall be insufficient to pay in full
the whole amounts so due and unpaid upon the Notes, then to the payment of such principal and
premium, if any, and interest without preference or priority of principal and premium, if any, over
interest, or of interest over principal and premium, if any, or of any installment of interest over
any other installment of interest, or of any Note over any other Note, ratably to the aggregate of
such principal and premium, if any, and accrued and unpaid interest; and



     FOURTH: Subject to the provisions of Article 15, to the payment of the remainder, if any, to
the Company or any other Person lawfully entitled thereto.



     Section 6.04. Proceedings by Noteholders. No Holder of any Note shall have any right by virtue of
or by reference to any provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture, or for the appointment of a
receiver, trustee, liquidator, custodian or other similar official, or for any other remedy
hereunder, except in the case of a default in the payment of principal, premium, if any, or
interest on the Notes, unless (a) such Holder previously shall have given to the Trustee written
notice of a default or an Event of Default and of the continuance thereof, as hereinbefore
provided, (b) the Holders of at least twenty-five percent (25%) in aggregate principal amount of
the Notes then outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable security or indemnity as it may require against the costs, liabilities or
expenses to be incurred therein or thereby, (c) the Trustee for sixty (60) calendar days after its
receipt of such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding and (d) no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 6.07; it being understood and
intended, and being expressly covenanted by the taker and Holder of every Note with every other
taker and Holder and the Trustee, that no one or more Holders of Notes shall have any right in any
manner whatever by virtue of or by reference to any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holder of Notes, or to obtain or seek to obtain priority over
or preference to any other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all Holders of Notes
(except as otherwise provided herein). For the protection and enforcement of this Section 6.04,
each and every Noteholder and the Trustee shall be entitled to such relief as can be given either
at law or in equity.



     Notwithstanding any other provision of this Indenture and any provision of any Note, the right
of any Holder of any Note to receive payment of the principal of (including the repurchase price
upon repurchase pursuant to Article 3) and premium, if any, and accrued interest on such Note, on
or after the respective due dates expressed in such Note or in the event of redemption or
repurchase, or to institute suit for the enforcement of any such payment on or after such
respective dates against the Company shall not be impaired or affected without the consent of such
Holder.



45









 





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



     Section 6.05. Proceedings by Trustee. In case of an Event of Default, the Trustee may, in its
discretion, proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either
by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.



     Section 6.06. Remedies Cumulative and Continuing. All powers and remedies given by this Article 6
to the Trustee or to the Noteholders shall, to the extent permitted by law, be deemed cumulative
and not exclusive of any thereof or of any other powers and remedies available to the Trustee or
the Holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and no delay or omission of
the Trustee or of any Holder of any of the Notes to exercise any right or power accruing upon any
default or Event of Default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or any acquiescence therein, and,
subject to the provisions of Section 6.04, every power and remedy given by this Article 6 or by law
to the Trustee or to the Noteholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Noteholders.



     Section 6.07. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders. The
Holders of not less than a majority in aggregate principal amount of the Notes at the time
outstanding shall have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee;
provided that (a) such direction shall not be in conflict with any rule of law or with this
Indenture, (b) the Trustee may take any other action which is not inconsistent with such direction,
(c) the Trustee may decline to take any action that would benefit some Noteholders to the detriment
of other Noteholders and (d) the Trustee may decline to take any action that would involve the
Trustee in personal liability, and for which it is not fully indemnified to its reasonable
satisfaction.



     The Holders of a majority in aggregate principal amount of the Notes at the time outstanding
may, on behalf of the Holders of all of the Notes, waive any past default or Event of Default
hereunder and its consequences except (i) a default in the payment of the principal of (including
repurchase price upon repurchase pursuant to Article 3), premium, if any, or interest on the Notes,
(ii) a failure by the Company to convert any Notes as required by this Indenture, (iii) a default
in the payment of the repurchase price on the Designated Event Repurchase Date pursuant to Article
3 or (iv) a default in respect of a covenant or provisions hereof which under Article 9 cannot be
modified or amended without the consent of the Holders of all Notes then outstanding or each Note
affected thereby.



46









 





     Upon any such waiver, the Company, the Trustee and the Holders of the Notes shall be restored
to their former positions and rights hereunder; but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon. Whenever any default
or Event of Default hereunder shall have been waived as permitted by this Section 6.07, said
default or Event of Default shall for all purposes of the Notes and this Indenture be deemed to
have been cured and to be not continuing; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.



     Section 6.08. Notice of Defaults. The Trustee shall, within ninety (90) calendar days after a
Responsible Officer of the Trustee has knowledge of the occurrence of a payment default under
Section 6.01(a) or Section 6.01(b) hereof, or received written notice of any other default or Event
of Default, mail to all Noteholders (or send by electronic transmission), as the names and
addresses of such Holders appear upon the Note Register, notice of all defaults known to a
Responsible Officer, unless such defaults shall have been cured or waived before the giving of such
notice; provided that except in the case of default in the payment of the principal of (including
the repurchase price upon repurchase pursuant to Article 3), or interest on any of the Notes, the
Trustee shall be protected in withholding such notice if and so long as a trust committee of
Responsible Officers of the Trustee in good faith determines that the withholding of such notice is
in the interest of the Noteholders.



     Section 6.09. Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of
any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in its
discretion, require, in any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such suit and that such court
may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; provided that the provisions of this Section 6.09
(to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Noteholder, or group of Noteholders, holding in the aggregate more than ten
percent in principal amount of the Notes at the time outstanding determined in accordance with
Section 8.04, or to any suit instituted by any Noteholder for the enforcement of the payment of the
principal of (including the repurchase price upon repurchase pursuant to Article 3), or interest on
any Note on or after the due date expressed in such Note or to any suit for the enforcement of the
right to convert any Note in accordance with the provisions of Article 13.



ARTICLE 7

THE TRUSTEE




     Section 7.01. Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence of an
Event of Default and after the curing or waiver of all Events of Default that may have occurred,
undertakes to perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this Indenture,



47









 







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



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




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




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




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




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




     (c) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the written direction of the Holders of not
less than a majority in principal amount of the Notes at the time outstanding determined as
provided in Section 8.04 relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture;




     (d) whether or not therein provided, every provision of this Indenture relating to the
conduct or affecting the liability of, or affording protection to, the Trustee shall be
subject to the provisions of this Section 7.01;




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



48









 






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




     (g) the Trustee shall not be deemed to have knowledge of any Event of Default with
respect to a payment default under Section 6.01(a) or Section 6.01(b) hereunder unless a
Responsible Officer of the Trustee has actual knowledge thereof or, with respect to any
other Event of Default, unless the Trustee shall have been notified in writing of such Event
of Default by the Company or a Holder of Notes;




     (h) in no event shall the Trustee be responsible for special, punitive or consequential
damages or loss (including loss of business, goodwill, opportunity or profit), even if the
Trustee is advised of the possibility of such loss or damage, whether foreseeable or
unforeseeable, known or unknown. The Trustee shall have no liability in connection with
forces majeures beyond its control such as floods, utility outages, acts of war or
terrorism, or other untoward events that may interrupt performance by the Trustee; and




     (i) Neither the Trustee nor the Conversion Agent nor the Paying Agent shall have any
tax withholding responsibility or liability, except as imposed by applicable law or as
agreed in writing between the Company and, as applicable, the Trustee or the Conversion
Agent or the Paying Agent.



     None of the provisions contained in this Indenture shall require the Trustee to advance,
expend or risk its own funds or otherwise incur personal financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers, if there is reasonable ground
for believing that the repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it; the Trustee has no duty to monitor the financial condition of the
Company.



     Section 7.02. Reliance on Documents, Opinions, etc. Except as otherwise provided in Section 7.01:




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




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



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




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




     (e) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, note or other paper or document, but the Trustee
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;




     (f) 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
by it with due care hereunder;




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




     (h) 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 Bank of New York Mellon as the Trustee in each of its capacities
hereunder, including as Conversion Agent and each agent, custodian and other Person employed
to act hereunder; provided, however, that the Conversion Agent and any other such agent or
Custodian shall not be deemed to be a fiduciary hereunder.




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




     (j) any permissive right or authority granted to the Trustee shall not be construed as
a mandatory duty.



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



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



     Section 7.05. Monies to Be Held in Trust. Subject to the provisions of Section 11.02, all monies
received by the Trustee shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. Except as otherwise provided
herein, the Trustee shall be under no liability for interest on any money received by it hereunder
except as may be agreed in writing from time to time by the Company and the Trustee.



     Section 7.06. Compensation and Expenses of Trustee.




     (a) The Company covenants and agrees to pay to the Trustee (which shall also include,
for purposes of this Section 7.06, the Conversion Agent, the Paying Agent and any other
roles under this Indenture performed by The Bank of New York Mellon) from time to time, and
the Trustee shall be entitled to, such compensation for all services rendered by it
hereunder in any capacity (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) as mutually agreed to from time to time
in a signed fee letter between the Company and the Trustee, and the Company will pay or
reimburse the Trustee upon its request for all reasonable expenses, disbursements and
advances reasonably incurred or made by the Trustee in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and of all Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence, willful misconduct,
recklessness or bad faith.




     (b) The Company also covenants to indemnify the Trustee (which shall also include, for
purposes of this Section 7.06, the Conversion Agent, the Paying Agent and any other roles
under this Indenture performed by The Bank of New York Mellon) and any predecessor Trustee
(and any officer, director, agent or employee of the Trustee), in any capacity under this
Indenture and any authenticating agent for, and to hold them harmless against, any and all
loss, costs, liability, damage, claim, judgment or reasonable expense including taxes (other
than taxes based on the income of the Trustee) incurred without negligence, willful
misconduct, recklessness or bad faith on the part of the Trustee or such officers,
directors, agent or employees or authenticating agent, as the case may be, and arising out
of or in connection with the acceptance or administration of this



51









 







trust or in any other capacity hereunder, including the reasonable costs and expenses
of defending themselves against any claim (whether asserted by the Company, any Holder or
any other Person) of liability hereunder. The obligations of the Company under this Section
7.06 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for
reasonable expenses, disbursements and advances shall be secured by a lien prior to that of
the Notes upon all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular Notes. The obligation of the
Company under this Section 7.06 shall survive the satisfaction and discharge of this
Indenture and the resignation or removal of the Trustee.



     When the Trustee and its directors, officers, counsel (including in-house counsel). employees
(including officers in the Trustee’s Default Administration Unit or any successor unit) and agents
and any authenticating agent incur expenses or render services after an Event of Default specified
in Section 6.01(g), 6.01(h) or 6.01(i) with respect to the Company occurs, the expenses and the
compensation for the services are intended to constitute reasonable expenses of administration
under any bankruptcy, insolvency or similar laws. With respect to such services following any Event
of Default, such expenses are payable by the Company pursuant to the indemnity in Section 7.06.



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



     Section 7.08. Conflicting Interests of Trustee. If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture.



     Section 7.09. Eligibility of Trustee. There shall at all times be a Trustee hereunder which shall
be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50 million (or if such Person is a member of a bank holding
company system, its bank holding company shall have a combined capital and surplus of at least $50
million). If such Person publishes reports of condition at least annually, pursuant to law or to
the requirements of any supervising or examining authority, then for the purposes of this Section
7.09 the combined capital and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section 7.09, it shall
resign immediately in the manner and with the effect hereinafter specified in this Article 7.



     Section 7.10. Resignation or Removal of Trustee.



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     (a) The Trustee may at any time resign by giving written notice of such resignation to
the Company and to the Holders of Notes. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall be delivered
to the resigning Trustee and one copy to the successor trustee. If no successor trustee
shall have been so appointed and have accepted appointment sixty (60) calendar days after
the mailing of such notice of resignation to the Noteholders, the resigning Trustee may,
upon ten Business Days’ notice to the Company and the Noteholders, appoint a successor
identified in such notice or may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor trustee, or, if any Noteholder who
has been a bona fide holder of a Note or Notes for at least six months may, subject to the
provisions of Section 6.09, on behalf of itself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.




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




     (i) the Trustee shall fail to comply with Section 7.08 after written request
therefor by the Company or by any Noteholder who has been a bona fide holder of a
Note or Notes for at least six months; or




     (ii) the Trustee shall cease to be eligible in accordance with the provisions
of Section 7.09 and shall fail to resign after written request therefor by the
Company or by any such Noteholder; or




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



then, in any such case, the Company may remove the Trustee and appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 6.09, any Noteholder who has been a bona fide holder of a Note
or Notes for at least six months may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and the appointment of
a successor trustee; provided that if no successor Trustee shall have been appointed and have
accepted appointment sixty (60) calendar days after either the Company or the Noteholders has
removed the Trustee, or the Trustee resigns, the Trustee so removed may petition, at the expense of
the Company, any court of competent jurisdiction for an appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee.



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     (c) Any resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section 7.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 7.11.




     (d) Notwithstanding the replacement of the Trustee pursuant to this Section 7.10, the
Company’s obligations under Section 7.06 shall continue for the benefit of the retiring
Trustee.



     Section 7.11. Acceptance by Successor Trustee. Any successor trustee appointed as provided in
Section 7.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amount then due it pursuant to the provisions of Section
7.06, execute and deliver an instrument transferring to such successor trustee all the rights and
powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company
shall execute any and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property and funds held or collected by such trustee as such,
except for funds held in trust for the benefit of Holders of particular Notes, to secure any
amounts then due it pursuant to the provisions of Section 7.06.



     No successor trustee shall accept appointment as provided in this Section 7.11 unless, at the
time of such acceptance, such successor trustee shall be qualified under the provisions of Section
7.08 and be eligible under the provisions of Section 7.09.



     Upon acceptance of appointment by a successor trustee as provided in this Section 7.11, the
Company (or the former trustee, at the written direction of the Company) shall mail or cause to be
mailed (or sent by electronic transmission) notice of the succession of such trustee hereunder to
the Holders of Notes at their addresses as they shall appear on the Note Register. If the Company
fails to send such notice within ten (10) calendar days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be sent at the expense of the
Company.



     Section 7.12. Succession by Merger. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to
all or substantially all of the corporate trust business of the Trustee (including any trust
created by this Indenture), shall be the successor to the Trustee hereunder without the execution
or filing of any paper or any further act on the part of any of the parties hereto, provided that
in the case of any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, such corporation shall be qualified under the provisions of Section 7.08
and eligible under the provisions of Section 7.09.



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



     Section 7.13. Preferential Collection of Claims. If and when the Trustee shall be or become a
creditor of the Company (or any other obligor upon the Notes), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of the claims against the Company
(or any such other obligor).



ARTICLE 8

THE NOTEHOLDERS




     Section 8.01. Action by Noteholders. Whenever in this Indenture it is provided that the Holders of
a specified percentage in aggregate principal amount of the Notes may take any action (including
the making of any demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action, the Holders of such
specified percentage have joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Noteholders in person or by agent or proxy appointed in
writing, or (b) by the record of the Holders of Notes voting in favor thereof at any meeting of
Noteholders, or (c) by a combination of such instrument or instruments and any such record of such
a meeting of Noteholders. Whenever the Company or the Trustee solicits the taking of any action by
the Holders of the Notes, the Company or the Trustee may fix in advance of such solicitation a date
as the record date for determining Holders entitled to take such action. The record date, if any,
shall be not more than fifteen (15) calendar days prior to the date of commencement of solicitation
of such action.



     Section 8.02. Proof of Execution by Noteholders. Subject to the provisions of Section 7.01 and
Section 7.02, proof of the execution of any instrument by a Noteholder or its agent or proxy shall
be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed
by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Notes
shall be proved by the registry of such Notes or by a certificate of the Note Registrar.



     Section 8.03. Absolute Owners. The Company, the Trustee, any Paying Agent, any exchange agent, any
Conversion Agent and any Note Registrar may deem the Person in whose name such Note shall be
registered upon the Note Register to be, and may treat it as, the absolute owner of such Note
(whether or not such Note shall be overdue and notwithstanding any notation of ownership or other
writing thereon made by any Person other than the Company or any Note



55









 







Registrar) for the purpose of receiving payment of or on account of the principal of (including the
repurchase price upon repurchase pursuant to Article 3), premium, if any, and interest on such
Note, for exchange or conversion of such Note and for all other purposes; and neither the Company
nor the Trustee nor any Paying Agent nor any exchange agent nor any Conversion Agent nor any Note
Registrar shall be affected by any notice to the contrary. All such payments so made to any Holder
for the time being, or upon its order, shall be valid, and, to the extent of the sum or sums so
paid, effectual to satisfy and discharge the liability for monies payable upon any such Note.



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



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



ARTICLE 9

SUPPLEMENTAL INDENTURES




     Section 9.01. Supplemental Indentures Without Consent of Noteholders. The Company, when authorized
by the resolutions of the Board of Directors and the Trustee may, from time to



56









 







time, and at any time enter into an indenture or indentures supplemental without the consent of the
Holders of the Notes hereto for one or more of the following purposes:




     (a) to add an Additional Regulatory Condition in accordance with Section 13.11 or to
remove a Regulatory Condition;




     (b) to evidence a successor to the Company as obligor under this Indenture;




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




     (d) to add Events of Default for the benefit of the Holders of the Notes;




     (e) to secure the Notes;




     (f) to provide for the acceptance of appointment of a successor Trustee or facilitate
the administration of the trusts under this Indenture by more than one Trustee;




     (g) to cure any ambiguity, defect or inconsistency in this Indenture; provided that
this action shall not adversely affect the interests of the Holders of the Notes in any
material respect;




     (h) to supplement any of the provisions of this Indenture to the extent necessary to
permit or facilitate defeasance and discharge of any of the Notes; provided that the action
shall not adversely affect the interests of the Holders of the Notes in any material
respect;




     (i) to modify this Indenture and the Notes to increase the Conversion Rate or reduce
the Conversion Price; provided that the increase or reduction, as the case may be, is in
accordance with the terms of the Notes or will not adversely affect the interests of the
Holders of the Notes in any material respect;




     (j) to amend or supplement any provisions of this Indenture; provided that no amendment
or supplement shall adversely affect the interests of the Holders of any Notes then
outstanding in any material respect; or




     (k) to conform the text of this Indenture or the Notes to any provision of the
description thereof set forth in the Offering Circular to the extent that such provision in
the Offering Circular was intended to be a verbatim recitation of a provision in this
Indenture or the Notes.



     Upon the written request of the Company, accompanied by a copy of the resolutions of the Board
of Directors certified by the Company’s Secretary or Assistant Secretary authorizing



57









 







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



     Any supplemental indenture authorized by the provisions of this Section 9.01 may be executed
by the Company and the Trustee without the consent of the Holders of any of the Notes at the time
outstanding, notwithstanding any of the provisions of Section 9.02.



     Section 9.02. Supplemental Indenture With Consent of Noteholders. With the consent (evidenced as
provided in Article 8) of the Holders of not less than a majority in aggregate principal amount of
the Notes at the time outstanding, the Company, when authorized by the resolutions of the Board of
Directors and the Trustee may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or any supplemental indenture or
modifying in any manner the rights of the Holders of the Notes; provided that no such supplemental
indenture shall, without the consent of the Holder of each Note so affected:




     (a) change the Stated Maturity of the principal of or any installment of interest on
the Notes, reduce the principal amount of, or the rate or amount of interest on, or any
premium payable on repurchase or conversion of, the Notes, change the place of payment, or
the coin or currency, for payment of principal of or interest on any Note or impair the
right to institute suit for the enforcement of any payment on or with respect to the Notes;




     (b) reduce the percentage in principal amount of the outstanding Notes necessary to
modify or amend this Indenture, to waive compliance with certain provisions of this
Indenture or certain defaults and their consequences provided in this Indenture, or to
reduce the requirements of quorum or change voting requirements set forth in this Indenture;




     (c) modify any of this Section 9.02 or Section 6.07 or any of the provisions relating
to the waiver of certain past defaults or certain covenants, except to increase the required
percentage to effect the action or to provide that certain other provisions may not be
modified or waived without the consent of the Holders of the Notes;




     (d) modify the provisions of Section 3.02 in a manner adverse to the Holders of the
Notes, including the Company’s obligation to repurchase the Notes following a Designated
Event; or



58









 






     (e) adversely affect the Holders’ rights contained in Section 3.02, or (except as
expressly permitted by Section 9.01(a) with respect to addition of Additional Regulatory
Conditions) Section 13.01 of this Indenture.



     Upon the written request of the Company, accompanied by a copy of the resolutions of the Board
of Directors certified by the Company’s Secretary or Assistant Secretary authorizing the execution
of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent
of Noteholders as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such supplemental indenture.



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



     Section 9.03. Effect of Supplemental Indenture. Any supplemental indenture executed pursuant to
the provisions of this Article 9 shall comply with the Trust Indenture Act, as then in effect,
provided that this Section 9.03 shall not require such supplemental indenture or the Trustee to be
qualified under the Trust Indenture Act prior to the time, if ever, such qualification is in fact
required under the terms of the Trust Indenture Act or the Indenture has been qualified under the
Trust Indenture Act, nor shall it constitute any admission or acknowledgment by any party to such
supplemental indenture that any such qualification is required prior to the time, if ever, such
qualification is in fact required under the terms of the Trust Indenture Act or the Indenture has
been qualified under the Trust Indenture Act. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article 9, this Indenture shall be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitation of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Company and the Holders of Notes
shall thereafter be determined, exercised and enforced hereunder, subject in all respects to such
modifications and amendments and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture for any and all
purposes.



     Section 9.04. Notation on Notes. Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article 9 may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Notes so modified as to conform, in the opinion of
the Board of Directors, to any modification of this Indenture contained in any such supplemental
indenture may, at the Company’s expense, be prepared and executed by the Company, authenticated by
the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to Section 16.11)
and delivered in exchange for the Notes then outstanding, upon surrender of such Notes then
outstanding.



     Section 9.05. Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee. Prior
to entering into any supplemental indenture pursuant to this Article 9, the Trustee



59









 







shall be provided with an Officers’ Certificate and an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant hereto complies with the requirements of this
Article 9 and is otherwise authorized or permitted by this Indenture.



ARTICLE 10

CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE




     Section 10.01. Company May Consolidate on Certain Terms. Nothing contained in this Indenture or in
the Notes shall prevent any consolidation or merger of the Company with or into any other Person or
Persons (whether or not affiliated with the Company), or successive consolidations or mergers in
which either the Company will be the continuing entity or the Company or its successor or
successors shall be a party or parties, or shall prevent any sale, conveyance, transfer or lease of
all or substantially all of the property of the Company, to any other Person (whether or not
affiliated with the Company); provided, however, that the following conditions are met:




     (a) the Company shall be the continuing entity and shall be a corporation organized and
validly existing under the laws of the United States of America, any state of the United
States of America, the District of Columbia, the United Kingdom, Switzerland or Ireland, or
the successor entity (if other than the Company) formed by or resulting from any
consolidation or merger or which shall have received the transfer of assets is a corporation
organized and validly existing under the laws of the United States of America, any state of
the United States of America, the District of Columbia, the United Kingdom, Switzerland or
Ireland and expressly assumes payment of the principal of and interest on all of the
outstanding Notes and the due and punctual performance and observance of all of the
covenants and conditions in this Indenture;




     (b) if the Company effects a Redomiciliation, the Company will provide at least 60
days’ prior written notice (the “Redomiciliation Notice”) of such proposed Redomiciliation
to the Trustee and Holders, which Redomiciliation Notice will specify whether Additional
Amounts will apply to any payments on the Notes following such Redomiciliation;




     (c) such transaction will not result in a “significant modification” of the Notes
within the meaning of U.S. Treasury Regulations § 1.1001-3(e);




     (d) if as a result of such transaction the Notes become convertible into Common Stock
or other securities issued by a third party, such third party fully and unconditionally
guarantees all obligations under the outstanding Notes and this Indenture;




     (e) immediately after giving effect to the transaction, no Event of Default under this
Indenture, and no event which, after notice or the lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing; and




     (f) an Officers’ Certificate and Opinion of Counsel covering these conditions shall be
delivered to the Trustee.



60









 





     “Redomiciliation” of any Person, means any transaction or event or series of transactions or
events (whether by voluntary election, merger, consolidation, binding share conversion,
reclassification, sale or transfer of property or assets, or otherwise) which would result in such
Person’s or such Person’s successor being or becoming a tax resident of the United Kingdom,
Switzerland or Ireland.



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



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



ARTICLE 11

SATISFACTION AND DISCHARGE OF INDENTURE




     Section 11.01. Discharge of Indenture. This Indenture shall cease to be of further effect (except
as to any surviving rights of exchange, registration of transfer or conversion of Notes herein
expressly provided for and except as further provided below), and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when (a) either: (1) all Notes theretofore authenticated and delivered
(other than (i) Notes which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 11.04 and (ii) Notes for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company as provided in Section 11.04) have been
delivered to the Trustee for cancellation; or (2) all such Notes not theretofore delivered to the
Trustee for cancellation have become due and payable, whether at the Maturity Date or Designated
Event Repurchase Date or upon conversion or otherwise and the Company, in the case of clause (1) or
(2) above, has irrevocably deposited or caused to be irrevocably deposited with the Trustee, a
Paying Agent or the Conversion Agent (other than the Company or any of its Affiliates), as
applicable, as trust funds in trust cash and/or shares of Common Stock (as applicable under the
terms of the Indenture) in an amount sufficient to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the Trustee for cancellation, for principal and interest to
the date of such deposit (in the case of Notes which have become due and payable) or to the
Maturity Date, or Designated Event Repurchase Date, as the case may be; provided, however, that
there shall not exist, on the date of such deposit, a default or Event of Default; provided,
further, that on the date of such deposit there shall not be any Credit Agreement Debt outstanding;
provided, further, that such deposit shall not result in a breach or violation of, or constitute a
default under, this Indenture or any other agreement or instrument to which the Company is a party
or to which the Company is bound; (b) the Company



61









 







has paid or caused to be paid all other sums payable hereunder by the Company; and (c) the Company
has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.



     Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 7.06 shall survive and, if money shall have been deposited
with the Trustee pursuant to subclause (2) of clause (a) of this Section 11.01, the provisions of
Sections 2.05, 2.06, 2.07, 3.02, 5.01, Article 13 and this Article 11, shall survive until the
Notes have been paid in full.



     Section 11.02. Deposited Monies to Be Held in Trust by Trustee. Subject to Section 11.04, all
monies deposited with the Trustee pursuant to Section 7.05 shall be held in trust for the sole
benefit of the Noteholders, and such monies shall be applied by the Trustee to the payment, either
directly or through any Paying Agent (including the Company if acting as its own Paying Agent), to
the Holders of the particular Notes for the payment or repurchase of which such monies have been
deposited with the Trustee, of all sums due and to become due thereon for principal, premium, if
any, and interest. All moneys deposited with the Trustee pursuant to Section 7.05 (and held by it
or any Paying Agent) for the payment of Notes subsequently converted shall be returned to the
Company upon request. The Trustee is not responsible to anyone for interest on any deposited funds
except as agreed in writing.



     Section 11.03. Paying Agent to Repay Monies Held. Subject to the provisions of Section 11.04, the
Trustee or a Paying Agent shall hold in trust, for the benefit of the Noteholders, all money
deposited with it pursuant to Section 11.01 and shall apply the deposited money in accordance with
this Indenture and the Notes to the payment of the principal of (including the repurchase price
upon repurchase pursuant to Article 3) and interest on the Notes.



     Section 11.04. Return of Unclaimed Monies. The Trustee and each Paying Agent shall pay to the
Company upon request any money held by them for the payment of principal or interest that remains
unclaimed for two years after a right to such money has matured; provided, however, that the
Trustee or such Paying Agent, before being required to make any such payment, may, at the expense
of the Company, either publish in a newspaper of general circulation in The City of New York, or
cause to be mailed to each Holder entitled to such money, notice that such money remains unclaimed
and that after a date specified therein, which shall be at least thirty (30) calendar days from the
date of such mailing or publication, any unclaimed balance of such money then remaining will be
repaid to the Company. After payment to the Company, Holders entitled to money must look to the
Company for payment as general creditors unless an applicable abandoned property law designates
another person, and the Trustee and each Paying Agent shall be relieved of all liability with
respect to such money.



     Section 11.05. Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 11.02 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the Company’s
obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to Section 11.01 until such time as the Trustee or the



62









 







Paying Agent is permitted to apply all such money in accordance with Section 11.02; provided that
if the Company makes any payment of principal of or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying Agent.



ARTICLE 12

IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS




     Section 12.01. Indenture and Notes Solely Corporate Obligations. Except as otherwise expressly
provided in Article 15, no recourse for the payment of the principal of (including the repurchase
price upon repurchase pursuant to Article 3) or, premium, if any, or interest on any Note, or for
any claim based thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture
or in any Note, or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, partner, member, manager, employee, agent, officer, director
or Subsidiary, as such, past, present or future, of the Company or any of the Company’s
Subsidiaries or of any successor thereto, either directly or through the Company or any of the
Company’s Subsidiaries or any successor thereto, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a condition of, and
as a consideration for, the execution of this Indenture and the issue of the Notes.



ARTICLE 13

CONVERSION OF NOTES




     Section 13.01. Right to Convert.




     (a) Subject to the restrictions on ownership of shares of Common Stock as set forth in
Section 13.11 and upon compliance with the provisions of this Indenture, on or prior to the
close of business on the Business Day immediately preceding the Maturity Date, the Holder of
any Notes not previously repurchased shall have the right, at such Holder’s option, to
convert its Notes, or any portion thereof which is a multiple of $1,000, into a number of
 shares of Common Stock equal to (i) the aggregate principal amount of Notes to be converted
divided by $1,000, multiplied by (ii) the Applicable Conversion Rate.




     (b) A Note in respect of which a Holder has delivered a Designated Event Repurchase
Notice, exercising such Holder’s right to require the Company to repurchase such Note
pursuant to Section 3.02 may be converted only if such Designated Event Repurchase Notice is
withdrawn in accordance with Section 3.04 prior to 5:00 p.m., New York City time on the
second Business Day immediately prior to the Designated Event Repurchase Date.



63









 






     (c) A Holder of Notes is not entitled to any rights of a Holder of Common Stock until
such Holder has converted its Notes and received upon exchange thereof shares of Common
Stock.



     Section 13.02. Exercise of Conversion Right; No Adjustment for Interest or Dividends. In order to
exercise the conversion right with respect to any Note in certificated form, the Company must
receive at the office or agency of the Company maintained for that purpose in The City of New York,
New York or, at the option of such Holder, the Corporate Trust Office, such Note with the original
or facsimile of the form entitled “Conversion Notice” on the reverse thereof, duly completed and
signed manually or by facsimile, together with such Notes duly endorsed for transfer, accompanied
by the funds, if any, required by this Section 13.02. Such notice shall also state the name or
names (with address or addresses) in which the certificate or certificates for shares of Common
Stock that shall be issuable on such conversion shall be issued, and shall be accompanied by
transfer or similar taxes, if required pursuant to Section 13.06.



     To convert the Notes, a Holder must (a) complete and manually sign the Conversion Notice on
the reverse of the Note (or complete and manually sign a facsimile of such notice) and deliver such
notice to the Conversion Agent at the office maintained by the Conversion Agent for such purpose,
(b) with respect to Notes that are in certificated form, surrender the Notes to the Conversion
Agent, (c) furnish appropriate endorsements and transfer documents if required by the Conversion
Agent and (d) pay any transfer or similar tax, if required. The date on which the Holder satisfies
all such requirements shall be deemed to be the date on which the applicable Notes shall have been
tendered for conversion.



     Notes in respect of which a Holder has delivered a Designated Event Repurchase Notice may be
converted only if such notice is withdrawn in accordance with the terms of Section 3.04.



     Upon surrender of a Note for conversion by a Holder, such Holder shall deliver to the Company
cash equal to the amount that the Company is required to deduct and withhold under applicable law
in connection with the conversion; provided, however, if the Holder does not deliver such cash, the
Company may deduct and withhold from the amount of consideration otherwise deliverable to such
Holder the amount required to be deducted and withheld under applicable law.



     As promptly as practicable (but no later than the fifth Business Day following the Conversion
Date), after satisfaction of the requirements for conversion set forth above, subject to compliance
with any restrictions on transfer if shares issuable on conversion are to be issued in a name other
than that of the Noteholder (as if such transfer were a transfer of the Note or Notes (or portion
thereof) so exchanged), and in accordance with the time periods set forth in this Article 13, the
Company shall issue and shall deliver to such Noteholder at the office or agency maintained by the
Company for such purpose pursuant to Section 4.02, (i) a certificate or certificates for the number
of full shares of Common Stock issuable upon the conversion of such Note or portion thereof as
determined by the Company in accordance with the provisions of Sections 13.01 and 13.10 and (ii) a
check or cash in respect of any fractional interest in respect of a share of Common Stock arising
upon such conversion, calculated by the Company as provided in Section 13.03. The certificate or
certificates for the number of full shares of Common Stock



64









 







into which the Notes are converted (and cash in lieu of fractional shares) will be delivered
to a converting holder after satisfaction of the requirements for conversion set forth above, in
accordance with this Section 13.02 and, if applicable, 13.10.



     Each conversion shall be deemed to have been effected as to any such Note (or portion thereof)
on the date on which the requirements set forth above in this Section 13.02 have been satisfied as
to such Note (or portion thereof) (the “Conversion Date”), and the Person in whose name any
certificate or certificates for shares of Common Stock shall be issuable upon such conversion shall
be deemed to have become on said date the holder of record of the shares represented thereby.



     Any Note or portion thereof surrendered for conversion during the period from 5:00 p.m., New
York City time, on the Record Date for any interest payment date to 5:00 p.m., New York City time,
on the applicable interest payment date shall be accompanied by payment, in immediately available
funds or other funds acceptable to the Company, of an amount equal to the interest otherwise
payable on such interest payment date on the principal amount being converted; provided that no
such payment need be made (1) if a Holder converts its Notes in connection with a Designated Event
and the Company has specified a Designated Event Repurchase Date that is after a Record Date and on
or prior to the related interest payment date, (2) in respect of conversions that occur after the
Record Date immediately preceding the Maturity Date or (3) to the extent of any overdue interest,
if any overdue interest exists at the time of conversion with respect to such Note. Except as
otherwise provided above in this Article 13, no payment or other adjustment shall be made for
interest accrued on any Note converted or for dividends on any shares issued upon the conversion of
such Note as provided in this Article 13. Notwithstanding the foregoing, in the case of Notes
submitted for conversion in connection with a Change of Control, such Notes shall continue to
represent the right to receive the Additional Change of Control Shares, if any, payable pursuant to
Section 13.10, until such Additional Change of Control Shares are so paid.



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



     Upon the conversion of a Note, the accrued but unpaid interest attributable to the period from
the issue date of the Note to the Conversion Date, with respect to the converted Note, shall not be
deemed canceled, extinguished or forfeited, but rather shall be deemed to be paid in full to the
Holder thereof through delivery of shares of Common Stock (together with the cash payment, if any
in lieu of fractional shares) in conversion for the Note being converted pursuant to the provisions
hereof.



     In case any Note of a denomination greater than $100,000 shall be surrendered for partial
conversion, and subject to Section 2.04, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of the Note so surrendered, without charge to the Holder, a



65









 







new Note or Notes in authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Note.



     Section 13.03. Cash Payments in Lieu of Fractional Shares. No fractional shares of Common Stock or
scrip certificates representing fractional shares shall be issued upon conversion of Notes. If
more than one Note shall be surrendered for conversion at one time by the same Holder, the number
of full shares that shall be issuable upon conversion shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof to the extent permitted
hereby) so surrendered. If any fractional share of Common Stock would be issuable upon the
conversion of any Note or Notes, the Company shall make an adjustment and payment therefor in cash
to the Holder of Notes at a price equal to the Closing Sale Price of the Common Stock on the
relevant Conversion Date.



     Section 13.04. Conversion Rate. The initial Conversion Rate for the Notes is 268.8172 shares of
Common Stock per each $1,000 principal amount of the Notes, subject to adjustment as provided in
Section 13.05 and Section 13.10 (herein called the “Conversion Rate”).



     Section 13.05. Adjustment of Conversion Rate. For purposes of this Section 13.05, references to
the number of shares of outstanding Common Stock shall treat as outstanding the shares of Common
Stock issuable upon exchange of the outstanding Exchangeable Shares. The Conversion Rate shall be
adjusted from time to time by the Company as follows:




     (a) If the Company issues the Common Stock or other capital stock as a dividend or
distribution on the Common Stock to all holders of Common Stock, or if the Company effects a
share split or share combination of the Common Stock, or if FA Sub 2 Limited does any of the
foregoing with respect to the Exchangeable Shares, the Conversion Rate will be adjusted
based on the following formula:



	 	 	 	 	 
	     CR1

	 	=
	 	CR0 x OS1/OS0
	 
	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	     CR1

	 	=
	 	the new Conversion Rate in effect immediately
after the ex-dividend date for such dividend or
distribution, or the effective date of such share
split or share combination;
	 
	 	 	 	 
	     CR0

	 	=
	 	the Conversion Rate in effect immediately prior to
the ex-dividend date for such dividend or
distribution, or the effective date of such share
split or share combination;
	 
	 	 	 	 
	     OS0

	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to such dividend or
distribution, or the effective date of such share
split or share combination; and
	 
	 	 	 	 
	     OS1

	 	=
	 	the number of shares of Common Stock outstanding
immediately after such dividend or distribution,
or the effective date of such share split or share
combination.






Any adjustment made pursuant to this paragraph (a) shall become effective on the date that is
immediately after (x) the ex-dividend date for such dividend or other distribution or (y) the date



66









 







on which such split or combination becomes effective, as applicable. If any dividend or
distribution described in this paragraph (a) is declared but not so paid or made, the new
Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such
dividend or distribution had not been declared.




     (b) If the Company distributes to all holders of Common Stock or if FA Sub 2 Limited
distributes to all holders of its Exchangeable Shares, any rights, warrants or options
entitling such holders for a period of not more than 60 days after the date of issuance
thereof to subscribe for or purchase Common Stock or Exchangeable Shares for a period of not
more than 60 days after the date of issuance thereof, in either case at an exercise price
per share of Common Stock or Common Stock equivalent less than the Closing Sale Price of the
Common Stock on the Business Day immediately preceding the time of announcement of such
issuance, the Conversion Rate will be adjusted based on the following formula (provided that
the Conversion Rate will be readjusted to the extent that such rights, warrants or options
are not exercised prior to their expiration):



	 	 	 	 	 
	     CR1

	 	=
	 	CR0 x (OS0 + X)/(OS0 + Y)
	 
	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	     CR1

	 	=
	 	the new Conversion Rate in effect immediately
after the ex-dividend date for such distribution;
	 
	 	 	 	 
	     CR0

	 	=
	 	the Conversion Rate in effect immediately prior to
the ex-dividend date for such distribution;
	 
	 	 	 	 
	     OS0

	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to ex-dividend date for such
distribution;
	 
	 	 	 	 
	     X

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

	 	=
	 	the number of shares of Common Stock equal to the
quotient of (A) the aggregate price payable to
exercise such rights, warrants or options and (B)
the average of the Closing Sale Prices of Common
Stock for the ten (10) consecutive Trading Days
ending on the Business Day immediately preceding
the date of announcement for the issuance of such
rights, warrants or options.






     For purposes of this paragraph (b), in determining whether any rights, warrants or options
entitle the holders to subscribe for or purchase Common Stock at less than the applicable Closing
Sale Price of the Common Stock, and in determining the aggregate exercise or conversion price
payable for such Common Stock, there shall be taken into account any consideration received by the
Company for such rights, warrants or options and any amount payable on exercise or conversion
thereof, with the value of such consideration, if other than cash, to be determined by the Board of
Directors. If any right, warrant or option described in this paragraph (b) is not exercised or
converted prior to the expiration of the exercisability or convertibility thereof, the new
Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such
right, warrant or option had not been so issued.



67









 






     (c) If the Company distributes shares of capital stock or if FA Sub 2 Limited
distribute to all holders of its Exchangeable Shares, shares of capital stock, evidences of
Indebtedness or other assets or property of the Company to all holders of Common Stock or of
Exchangeable Shares, excluding:




(A) dividends, distributions, rights, warrants or options referred to in
paragraph (a) or (b) above;




(B) dividends or distributions paid exclusively in cash; and




(C) Spin-Offs described below in this paragraph (c),


then the Conversion Rate will be adjusted based on the following formula:




	 	 	 	 	 
	     CR1

	 	=
	 	CR0 x SP0/(SP0 — FMV)
	 
	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	     CR1

	 	=
	 	the new Conversion Rate in effect immediately
after the ex-dividend date for such distribution;
	 
	 	 	 	 
	     CR0

	 	=
	 	the Conversion Rate in effect immediately prior to
the ex-dividend date for such distribution;
	 
	 	 	 	 
	     SP0

	 	=
	 	the average of the Closing Sale Prices of the
Common Stock for the ten (10) consecutive Trading
Days prior to the Business Day immediately
preceding the earlier of the record date or the
ex-dividend date for such distribution; and
	 
	 	 	 	 
	     FMV

	 	=
	 	the Fair Market Value (as determined in good faith
by the Company’s Board of Directors) of the shares
of capital stock, evidences of indebtedness,
assets or property distributed with respect to
each outstanding share of Common Stock or Common
Stock equivalent on the earlier of the record date
or the ex-dividend date for such distribution.






     An adjustment to the Conversion Rate made pursuant to the immediately preceding paragraph
shall become effective on the ex-dividend date for such distribution.



     If the Company distributes to all holders of Common Stock capital stock of any class or
series, or similar equity interest, of or relating to a Subsidiary or other business unit of the
Company (a “Spin-Off”), the Conversion Rate in effect immediately before the 10th Trading Day from
and including the effective date of the Spin-Off will be adjusted based on the following formula:



	 	 	 	 	 
	     CR1

	 	=
	 	CR0 x (FMV+ MP)/MP
	 
	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	     CR1

	 	=
	 	the new Conversion Rate immediately after the 10th
Trading Day immediately following, and including,
the effective date of the Spin-Off;






68









 






	 	 	 	 	 
	     CR0

	 	=
	 	the Conversion Rate in effect immediately prior to
the 10th Trading Day immediately following, and
including, the effective date of the Spin-Off;
	 
	 	 	 	 
	     FMV

	 	=
	 	the average of the Closing Sale Prices of the
capital stock or similar equity interest
distributed to holders of the Common Stock
applicable to one share of Common Stock over the
first ten (10) consecutive Trading Days after the
effective date of the Spin-Off; and
	 
	 	 	 	 
	     MP

	 	=
	 	the average of the Closing Sale Prices of the
Common Stock over the first ten (10) consecutive
Trading Days after the effective date of the
Spin-Off.






     An adjustment to the Conversion Rate made pursuant to the immediately preceding paragraph will
occur on the 10th Trading Day from and including the effective date of the Spin-Off; provided that
in respect of any conversion within the 10 Trading Days following the effective date of any
Spin-Off, references within this paragraph (c) to 10 Trading Days shall be deemed replaced with
such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and
the Conversion Date in determining the Applicable Conversion Rate.



     If any such dividend or distribution described in this paragraph (c) is declared but not paid
or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be
in effect if such dividend or distribution had not been declared.




     (d) If the Company makes to all holders of outstanding Common Stock, or FA Sub 2
Limited makes to all holders of Exchangeable Shares, any cash dividend or distribution
(excluding any dividend or distribution in connection with the liquidation, dissolution or
winding up of the Company or FA Sub 2 Limited, as applicable, and any quarterly tax
distributions attributable to its Exchangeable Shares required to be paid under Regulation
11(a) of the Memorandum of Association of FA Sub 2 Limited, on the basis of estimated income
taxes attributable to the holders thereof in respect of such shares), the Conversion Rate
will be adjusted based on the following formula:



	 	 	 	 	 
	     CR1

	 	=
	 	CR0 x SP/(SP — C)
	 
	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	     CR1

	 	=
	 	the new Conversion Rate immediately after the
ex-dividend date for such distribution;
	 
	 	 	 	 
	     CR0

	 	=
	 	the Conversion Rate in effect immediately prior to
the ex-dividend date for such distribution;
	 
	 	 	 	 
	     SP

	 	=
	 	the average of the Closing Sale Prices of the
Common Stock for the ten (10) consecutive Trading
Days prior to the Business Day immediately
preceding the earlier of the record date or the
day prior to the ex-dividend date for such
distribution; and
	 
	 	 	 	 
	     C

	 	=
	 	the quotient of (i) the sum of (A) the aggregate
amount in cash that the Company distributes to
holders of the Common Stock






69









 






	 	 	 	 	 
	 

	 	 	 	and (B) an amount (not
less than zero) equal to the aggregate amount in
cash that FA Sub 2 Limited distributes to holders
of the Exchangeable Shares in excess of the
required quarterly tax distributions attributable
to the Exchangeable Shares, divided by (ii) the
number of shares of Common Stock outstanding
immediately prior to ex-dividend date for such
distribution.






     An adjustment to the Conversion Rate made pursuant to this paragraph (d) shall become
effective on the ex-dividend date for such dividend or distribution. If any dividend or
distribution described in this paragraph (d) is declared but not so paid or made, the new
Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such
dividend or distribution had not been declared.




     (e) If the Company or any of its Subsidiaries makes a payment in respect of a tender
offer or exchange offer for Common Stock or the Exchangeable Shares of FA Sub 2 Limited, to
the extent that the cash and value of any other consideration included in the payment per
share of Common Stock or Common Stock equivalent exceeds the Closing Sale Price of a share
of Common Stock on the Trading Day next succeeding the last date on which tenders or
exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration
Time”), the Conversion Rate will be adjusted based on the following formula:



	 	 	 	 	 
	     CR1

	 	=
	 	CR0 x (AC + (SP1 x OS1))/(SP1 x OS0)
	 
	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	     CR1

	 	=
	 	the Conversion Rate in effect on the second day
immediately following the date such tender or
exchange offer expires;
	 
	 	 	 	 
	     CR0

	 	=
	 	the Conversion Rate in effect on the day
immediately following the date such tender or
exchange offer expires;
	 
	 	 	 	 
	     AC

	 	=
	 	the aggregate value of all cash and any other
consideration (as determined by the Company’s
Board of Directors) paid or payable for the Common
Stock or the Exchangeable Shares purchased in such
tender or exchange offer;
	 
	 	 	 	 
	     OS0

	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to the date such tender or
exchange offer expires;
	 
	 	 	 	 
	     OS1

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

	 	=
	 	the Closing Sale Price of the Common Stock for the
Trading Day next succeeding the date such tender
or exchange offer expires.






     If the application of the foregoing formula would result in a decrease in the Conversion Rate,
no adjustment to the Conversion Rate will be made.



70









 





     Any adjustment to the Conversion Rate made pursuant to this paragraph (e) shall become
effective on the second day immediately following the Expiration Time. If the Company or one of
its Subsidiaries is obligated to purchase Common Stock pursuant to any such tender offer or
exchange offer but is permanently prevented by applicable law from effecting any such purchase or
all such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion
Rate that would be in effect if such tender offer or exchange offer had not been made.




     (f) If the Company or any of its Subsidiaries redeem, repurchase or otherwise make a
payment in respect of all of any class of Company Warrants and, together with all previous
payments in respect of the Company Warrants for which the Conversion Rate for the Notes was
not adjusted, the cash and value of any other consideration included in the payment exceeds,
on a per warrant basis, the arithmetic average of the Volume Weighted Average Price of the
Public Stockholders’ Warrants on the ten (10) consecutive Trading Days ending on the day of
such redemption, repurchase or other payment, the Conversion Rate will be adjusted based on
the following formula:



	 	 	 	 	 
	     CR1

	 	=
	 	CR0 x (SP0 x OS0) / (((SP0 x OS0) — AC) + (W0 x WP0))
	 
	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	     CR1

	 	=
	 	the Conversion Rate in effect immediately after
the ex-dividend date for such redemption,
repurchase or other payment in respect of the
Company Warrants;
	 
	 	 	 	 
	     CR0

	 	=
	 	the Conversion Rate in effect immediately prior to
the ex-dividend date for such redemption,
repurchase or other payment in respect of the
Company Warrants;
	 
	 	 	 	 
	     AC

	 	=
	 	the aggregate value of all cash and any other
consideration (as determined by the Company’s
Board of Directors) paid or payable in such
redemption, repurchase or other payment (together
with the consideration paid in all previous
payments for which the Conversion Rate for the
Notes was not adjusted) in respect of the Company
Warrants;
	 
	 	 	 	 
	     OS0

	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to the ex-dividend date for such
redemption, repurchase or other payment in respect
of the Company Warrants;
	 
	 	 	 	 
	     SP0

	 	=
	 	the Closing Sale Price of Common Stock on the day
immediately prior to the ex-dividend date for such
redemption, repurchase or other payment in respect
of the Company Warrants;
	 
	 	 	 	 
	     W0

	 	=
	 	the number of Company Warrants redeemed,
repurchased or in respect of which an applicable
payment is made; and
	 
	 	 	 	 
	     WP0

	 	=
	 	the arithmetic average of the Volume Weighted
Average Price of the Public Stockholders’ Warrants
on the ten (10) consecutive Trading Days ending on
the ex-payment date for such redemption,
repurchase or other payment.






71









 





     If the application of the foregoing formula would result in a decrease in the Conversion
Rate, no adjustment to the Conversion Rate will be made.




     (g) Notwithstanding the foregoing, in the event of an adjustment to the Conversion Rate
pursuant to paragraphs (d), (e) and (f) above, in no event will the Conversion Rate exceed
322.5806 (the “Maximum Conversion Rate”). The Maximum Conversion Rate shall be adjusted in
the same manner and for the same events as the Conversion Rate is adjusted pursuant to
clauses (a), (b) and (c) above.




     (h) If the Company adopts a stockholder’s rights plan while any Notes remain
outstanding, Holders of Notes will receive, upon a conversion of Notes, in addition to
Common Stock, rights under such stockholder rights plan unless, prior to conversion, the
rights have expired, terminated or been redeemed or unless the rights have separated from
the Common Stock. If the rights provided for in the stockholder’s rights plan adopted by
the Company have separated from the Common Stock in accordance with the provisions of the
applicable stockholder rights plan so that Holders of Notes would not be entitled to receive
any rights in respect of any Common Stock that the Company delivers upon conversion of
Notes, the Conversion Rate will be adjusted at the time of separation as if the Company had
distributed, to all holders of Common Stock, capital stock, evidences of Indebtedness or
other assets or property pursuant to paragraph (c) above, subject to readjustment upon the
subsequent expiration, termination or redemption of the rights.




     (i) In addition to the adjustments pursuant to paragraphs (a) through (f) above, the
Company may increase the Conversion Rate in order to avoid or diminish any income tax to
holders of Common Stock resulting from any dividend or distribution of capital stock (or
rights to acquire Common Stock) or from any event treated as such for income tax purposes.
The Company may also, from time to time, to the extent permitted by applicable law, increase
the Conversion Rate by any amount for any period if the Company has determined that such
increase would be in the best interests of the Company. If the Company makes such
determination, it will be conclusive and the Company will mail to Holders of the Notes a
notice of the increased Conversion Rate and the period during which it will be in effect at
least fifteen (15) days prior to the date the increased Conversion Rate takes effect in
accordance with applicable law.




     (j) The Company shall not make any adjustment to the Conversion Rate if Holders of the
Notes participate in the dividend, distribution or transaction that would otherwise result
in an adjustment to the Conversion Rate at the same time as holders of the Common Stock and
as if such Holders of Notes owned a number of shares of Common Stock equal to a fraction the
numerator of which is the product of the Conversion Rate in effect on the ex-dividend date
or effective date for the relevant dividend, distribution or transaction, and the aggregate
principal amount of Notes held by such Holder and the denominator of which is one thousand
($1,000).




     (k) Notwithstanding anything to the contrary contained herein, in addition to the other
events set forth herein on account of which no adjustment to the Conversion Rate shall be
made, the Applicable Conversion Rate shall not be adjusted for:



72









 






     (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
securities of the Company and the investment of additional optional amounts in the
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, trustee
or consultant benefit plan, employee agreement or arrangement or program of the
Company and its Subsidiaries, or pursuant to any incentive compensation plan for
individuals who are direct or indirect limited partners of GLG Partners LP or GLG
Partners Services LP for services provided to the Company or its Subsidiaries;




     (iii) the issuance of any shares of Common Stock pursuant to any option,
warrant, right, or exercisable, exchangeable or convertible security outstanding as
of the date the Notes were first issued;




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




     (v) accumulated and unpaid dividends or distributions; and




     (vi) the issuance of shares of Common Stock or the payment of cash upon
redemption thereof.




     (l) No adjustment in the Conversion Rate will be required unless the adjustment would
require an increase or decrease of at least 1% of the Conversion Rate. If the adjustment is
not made because the adjustment does not change the Conversion Rate by at least 1%, then the
adjustment that is not made will be carried forward and taken into account in any future
adjustment. All required calculations will be made to the nearest cent or 1/1000th of a
share, as the case may be. Notwithstanding the foregoing, if the Company fixes a Withdrawal
Date for the Notes in accordance with Section 13.13, then all adjustments not previously
made will apply to any conversion of Notes occurring on or after the applicable Withdrawal
Notice Date.




     (m) Whenever the Conversion Rate is adjusted as herein provided, the Company shall as
promptly as reasonably practicable file with the Trustee and any Conversion Agent other than
the Trustee an Officers’ Certificate setting forth the Conversion Rate after such adjustment
and setting forth a brief statement of the facts requiring such adjustment. Promptly after
delivery of such certificate, the Company or 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 Holders of the Notes (with a copy to the Trustee and Conversion
Agent) within 20 Business Days of the Effective Date of such adjustment. Failure to deliver
such notice shall not affect the legality or validity of any such adjustment.



73









 







     (n) For purposes of this Section 13.05, the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the Company but shall
include shares issuable in respect of scrip certificates issued in lieu of fractions of
 shares of Common Stock.




     (o) If any of the following events occur, namely any reclassification or change of the
outstanding Common Stock (other than a subdivision or combination to which Section 13.05(a)
applies), any consolidation, merger or combination of the Company with another Person, or a
binding share exchange in respect of all of the outstanding Common Stock or any sale or
conveyance of all or substantially all of 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 cash, securities or other property or assets (“Reference Property”) with respect to
or in exchange for such Common Stock, then:




     (i) the Company or the successor or purchasing Person, as the case may be,
shall execute with the Company and 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 of the Notes as set forth in
this Indenture into the Reference Property. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Section 13.05; and




     (ii) In the event a supplemental indenture should be executed pursuant to this
Section 13.05, the Company shall promptly file with the Trustee an Officers’
Certificate briefly stating the reasons therefor, the kind or amount of cash,
securities or property or asset that will comprise the Reference Property after any
such event, any adjustment to be made with respect thereto and that all conditions
precedent have been complied with, and the Company shall cause notice of the
execution of such supplemental indenture to be mailed to each Holder of Notes within
twenty (20) Business Days after execution thereof. Failure to deliver such notice
shall not affect the legality or validity of such supplemental indenture. The
provisions of this paragraph shall similarly apply to successive reclassifications,
changes, consolidations, mergers, combinations, sales and conveyances. If the
provisions of this paragraph apply to any event or occurrence, then the provisions
of Section 13.05(b) through Section 13.05(h) shall not apply to such event or
occurrence.




     (p) Notwithstanding this Section 13.05 or any other provision of this Indenture or the
Notes, if any Conversion Rate adjustment becomes effective, or any ex-dividend date for any
issuance, dividend or distribution (relating to a required Conversion Rate adjustment)
occurs, during the period beginning on, and including, the open of business on a Conversion
Date and ending on, and including, the close of business on the record date for such
issuance, dividend or distribution, the Board of Directors shall make adjustments to the
Conversion Rate and the number of shares of Common Stock issuable upon conversion of the
Notes as are necessary or appropriate to effect the intent of this



74









 







Section 13.05 and the other provisions of this Article 13 and to avoid unjust or
inequitable results, as determined in good faith by the Board of Directors. Any adjustment
made pursuant to this Section 13.05(p) shall apply in lieu of the adjustment or other term
that would otherwise be applicable.



     Section 13.06. Taxes on Shares Issued. The issue of stock certificates, if any, on conversion of
Notes shall be made without charge to the converting Noteholder for any documentary, stamp or
similar issue or transfer tax in respect of the issue thereof. The Company shall not, however, be
required to pay any such tax which may be payable in respect of any transfer involved in the issue
and delivery of stock in any name other than that of the holder of any Note converted, and the
Company 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 13.07. Reservation of Shares, Shares to Be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock. The Company shall provide, free from preemptive rights, out
of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock
to provide for the conversion of the Notes as required by this Indenture from time to time as such
Notes are presented for conversion.



     The Company covenants that all shares of Common Stock which may be issued upon conversion of
Notes 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.



     The Company covenants that, if any shares of Common Stock to be provided for the purpose of
conversion of Notes hereunder require registration with or approval of any governmental authority
under any federal or state law before such shares may be validly issued upon conversion, the
Company shall, as expeditiously as possible secure such registration or approval, as the case may
be.



     The Company further covenants that, if at any time the Common Stock shall be listed on the
NYSE or any other national or regional securities exchange or automated quotation system, the
Company will, if permitted by the rules of such exchange or automated quotation system, list and
keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation
system, all the Common Stock issuable upon conversion of the Notes; provided that if the rules of
such exchange or automated quotation system permit the Company to defer the listing of any Common
Stock until the first conversion of the Notes in accordance with the provisions of this Indenture,
the Company covenants to list such the Common Stock issuable upon conversion of the Notes in
accordance with the requirements of such exchange or automated quotation system at such time.



     Section 13.08. 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 Notes to determine the Conversion
Rate or whether any facts exist that 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



75









 








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 capital stock, other securities or other assets or property, which may at any time be issued or
delivered upon the conversion of any Note; and the Trustee and any other Conversion Agent make no
representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock
or stock certificates or other securities or property or cash upon the surrender of any Note for
the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the
Company contained in this Article 13. 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 13.05
relating either to the kind or amount of shares of capital stock or other securities or other
assets or property (including cash) receivable by Noteholders upon the conversion of their Notes
after any event referred to in such Section 13.05 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 Officers’
Certificate (which the Company shall be obligated to file with the Trustee prior to the execution
of any such supplemental indenture) with respect thereto.



     Section 13.09. Notice to Holders Prior to Certain Actions. In case:




     (a) the Company or FA Sub 2 Limited shall declare a dividend (or any other
distribution) on the Common Stock or on the Exchangeable Shares that would require an
adjustment in the Conversion Rate pursuant to Section 13.05; or




     (b) the Company shall authorize the granting to the holders of all or substantially all
of the Common Stock or of the Exchangeable Shares 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 or of the
Exchangeable Shares (other than a subdivision or combination of its outstanding Common Stock
or of the Exchangeable Shares, 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, combination, merger or share
exchange to which the Company or FA Sub 2 Limited is a party and for which approval of any
stockholders of the Company is required, or of the sale or transfer of all or substantially
all of the assets of the Company or FA Sub 2 Limited; 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 sent to each holder of Notes at its
address appearing on the Note Register provided for in Section 2.05 of this Indenture, as



76









 







promptly as possible but in any event at least ten (10) calendar days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution or rights or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to such dividend,
distribution or rights or warrants are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up is
expected to become effective or occur, and the date as of which it is expected that holders of
Common Stock or the Exchangeable Shares of record shall be entitled to exchange their Common Stock
for securities or other property deliverable upon such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding up. Failure to give such notice, or any defect
therein, shall not affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up.



     Section 13.10. Conversion Rate Adjustment After Change of Control.




     (a) Subject to the provisions hereof, if a Noteholder elects to convert its Notes in
connection with the occurrence of a Change of Control, the Company will increase the
Applicable Conversion Rate for the Notes so surrendered for conversion (the “Additional
Change of Control Shares”) as specified below; provided that the Additional Change of
Control Shares will only be payable as set forth below. A Conversion of Notes will be
deemed for these purposes to be “in connection with” such a Change of Control if the
Conversion Notice is received by the Conversion Agent from and including the Effective Date
of the Change of Control until the corresponding Designated Event Repurchase Date.




     (b) The number of Additional Change of Control Shares will be determined by reference
to the table in paragraph (e) below and is based on the date on which the relevant Change of
Control transaction becomes effective (the “Effective Date”) and the price (the “Stock
Price”) paid per share of Common Stock in such transaction. If the holders of Common Stock
receive only cash in the relevant Change of Control transaction, the Stock Price will equal
the cash amount paid per share of Common Stock. In all other cases, the Stock Price will
equal the average of the Closing Sale Prices of the Common Stock on the ten consecutive
Trading Days up to but excluding the Effective Date.




     (c) The Stock Prices set forth in the first row of the table below shall be adjusted as
of any date on which the Conversion Rate of the Notes is adjusted pursuant to Section 13.05.
The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such
adjustment, multiplied by a fraction, (i) the numerator of which is the Conversion Rate
immediately prior to the adjustment giving rise to the Stock Price adjustment and (ii) the
denominator of which is the Conversion Rate as so adjusted.




     (d) The number of Additional Change of Control Shares will be adjusted in the same
manner and for the same events as the Conversion Rate is adjusted pursuant to Section 13.05.



77









 






     (e) The following table sets forth the Stock Price and number of Additional Change of
Control Shares issuable per $1,000 principal amount of Notes:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Effective Date	 	Stock Price	 
	 
	 	$	3.10	 	 	$	3.25	 	 	$	3.50	 	 	$	3.75	 	 	$	4.00	 	 	$	5.00	 	 	$	5.58	 	 	$	6.00	 	 	$	7.00	 	 	$	8.00	 	 	$	9.00	 	 	$	10.00	 	 	$	11.00	 	 	$	12.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	5/15/2009
	 	 	53.7634	 	 	 	48.9157	 	 	 	42.1019	 	 	 	36.6044	 	 	 	32.1128	 	 	 	20.5336	 	 	 	16.5595	 	 	 	14.3931	 	 	 	10.7301	 	 	 	8.3272	 	 	 	6.6291	 	 	 	5.3599	 	 	 	4.3716	 	 	 	3.5791	 
	5/15/2010
	 	 	53.7634	 	 	 	46.8345	 	 	 	39.2619	 	 	 	33.2239	 	 	 	28.3633	 	 	 	16.3310	 	 	 	12.5097	 	 	 	10.5391	 	 	 	7.4498	 	 	 	5.6210	 	 	 	4.4241	 	 	 	3.5708	 	 	 	2.9213	 	 	 	2.4037	 
	5/15/2011
	 	 	53.7634	 	 	 	45.4502	 	 	 	36.7499	 	 	 	29.8391	 	 	 	24.3036	 	 	 	10.9764	 	 	 	7.1285	 	 	 	5.3445	 	 	 	3.0335	 	 	 	2.0564	 	 	 	1.5748	 	 	 	1.2778	 	 	 	1.0596	 	 	 	0.8843	 
	5/15/2012
	 	 	53.7634	 	 	 	44.6560	 	 	 	34.8342	 	 	 	27.1289	 	 	 	20.9571	 	 	 	5.4098	 	 	 	0.9382	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 
	5/15/2013
	 	 	53.7634	 	 	 	40.3240	 	 	 	28.9605	 	 	 	20.7524	 	 	 	14.8258	 	 	 	3.1330	 	 	 	0.5389	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 
	5/15/2014
	 	 	53.7634	 	 	 	38.8751	 	 	 	16.8971	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 







     (f) If the exact Stock Price and Effective Date are not set forth on the table above,
then:




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




     (ii) if the Stock Price is in excess of $12.00 per share of Common Stock (the “Make
Whole Cap”), no Additional Change of Control Shares will be issued upon conversion of the
Notes; and




     (iii) if the Stock Price is less than $3.10 per share of Common Stock (the “Make Whole
Floor”), no Additional Change of Control Shares will be issued upon conversion of the Notes.



     The Make Whole Cap and Make Whole Floor shall be adjusted as of any date on which the
Conversion Rate of the Notes is adjusted pursuant to Section 13.05. The adjusted Make Whole Cap or
Make Whole Floor, as the case may be, shall equal the Make Whole Cap or Make Whole Floor, as the
case may be, applicable immediately prior to such adjustment, multiplied by a fraction, (i) the
numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the
adjustment and (ii) the denominator of which is the Conversion Rate as so adjusted.



     Notwithstanding the foregoing, in no event will the total number of shares of Common Stock
issuable upon Conversion of the Notes pursuant to this Section 13.10 exceed the Maximum Conversion
Rate per $1,000 principal amount of Notes, subject to adjustment in the same manner and for the
same events as the Conversion Rate is adjusted pursuant to Section 13.05.



     Section 13.11. Ownership Limit.



78









 







     (a) Notwithstanding any other provision of this Indenture or the Notes, no Holder of
Notes shall be entitled to receive shares of Common Stock upon conversion of Notes to the
extent that, as a result of a conversion of Notes by a Holder, any of the following (each, a
“Regulatory Condition”) would be applicable such Holder; provided that the Company in its
sole discretion has not previously delivered to the Trustee a prior written “Control
Consent” (as defined below) with respect to such Holder:




     (i) such Holder would, alone or together with any other Persons(s) with whom it
is acting in concert hold, directly or indirectly, shares or voting rights in the
Company or any of the Company’s subsidiaries or affiliates then authorized by the
Financial Services Authority (the “FSA”), in excess of a U.K. Control Threshold,
where immediately prior to such conversion such holder (alone or in concert with
others) did not meet the conditions of that particular U.K. Control Threshold.
“U.K. Control Threshold” means any of the following, calculated according to the
provisions of the U.K. Financial Services and Markets Act 2000: shares or voting
power of 10%, 20%, 30% or 50%; shares or voting power as a result of which the
Holder (alone or in concert with others) is able to exercise significant influence
over the management of any FSA-authorized person; becoming a parent undertaking of
an FSA-authorized person.




     (ii) such Holder would, hold, directly or indirectly, shares or other interest
in the Company or any of the Company’s subsidiaries or affiliates then regulated or
approved by the Irish Financial Services Regulatory Authority, in excess of an
Ireland Control Threshold, where immediately prior to such conversion such holder
did not hold, directly or indirectly, shares or other interest in excess of that
particular Ireland Control Threshold. “Ireland Control Threshold” means any of the
following: shares or other interest representing 10%, 20%, 33% or 50% of capital or
voting rights in any of the Company’s subsidiaries or affiliates then regulated or
approved by the Irish Financial Services Regulatory Authority; or shares or other
interest which, in the opinion of the Irish Financial Services Regulatory Authority,
make it possible to control or exercise a significant influence over the management
of a subsidiary or affiliate then regulated by the Irish Financial Services
Regulatory Authority.




     (iii) such Holder would, acting alone or together or otherwise with any group
of persons, in the opinion of the Cayman Islands Monetary Authority (“CIMA”):




	 	(a)	 	“control” the Company or any of
its subsidiaries or affiliates; or
	 
	 	(b)	 	acquire (directly or indirectly)
 shares representing more than 10% of the Company’s share capital
or more than 10% of the total voting rights of the Company’s
 shares or those of the Company’s subsidiaries or affiliates then
subject to regulation by CIMA; or





79









 






	 	(c)	 	cause any change of ownership of
any direct or indirect parent of any of the Company’s
subsidiaries or affiliates regulated by CIMA, other than the
Company;






where immediately prior to such conversion such holder (alone or with any group or
persons) did not “control” the Company or hold more than 10% of the Company’s share
capital or more than 10% voting rights in the Company or any subsidiary or affiliate
of the Company then subject to regulation by CIMA.




     (iv) such Holder would trigger an Additional Regulatory Condition that was
effective at the effective time of the Conversion Notice, where immediately prior to
such conversion such Additional Regulatory Condition did not apply to such Holder.



     A “Control Consent” means a written consent that the Company, acting in its sole discretion,
delivers to the Trustee under the Indenture consenting to a conversion of notes by a Holder that
would, without such consent, trigger a Regulatory Condition.



     The Company may, from time to time, enter into a supplemental indenture with the Trustee
(without the consent of the holders) to add any Additional Regulatory Condition for which an
Opinion of Counsel, delivered to the Trustee, states that such Additional Regulatory Condition
satisfies the definition of Additional Regulatory Condition.



     These restrictions on conversion of the Notes are without prejudice to any other rights with
respect to securities of the Company.




     (b) At the Maturity Date or upon earlier repurchase of the Notes or otherwise, and as
otherwise required by law, the Company may deduct and withhold from the amount of
consideration otherwise deliverable to the Holder the amount required to be deducted and
withheld under applicable law.



     Section 13.12. Calculation in Respect of Notes. Except as otherwise specifically stated herein or
in the Notes, all calculations to be made in respect of the Notes shall be the obligation of the
Company. All calculations made by the Company or its agent as contemplated pursuant to the terms
hereof and of the Notes shall be made in good faith and be final and binding on the Notes and the
Holders of the Notes, the Trustee, and the Conversion Agent, absent manifest error. The Company
shall provide a schedule of calculations to the Trustee and to the Conversion Agent, and the
Trustee and the Conversion Agent shall be entitled to rely upon the accuracy of the calculations by
the Company without independent verification. Each of the Trustee and the Conversion Agent shall
forward calculations made by the Company to any Holder of Notes upon request.



     Section 13.13. Withdrawal of Conversion Rights.




     (a) If at any time after the third anniversary of the Issue Date, the Volume Weighted
Average Price of the Common Stock shall have exceeded 150% of the then



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applicable Conversion Price on at least 20 Trading Days in any consecutive 30-Trading
Day period, upon giving the notice described in Section 13.13(b), the Company may withdraw
the Noteholders’ right to convert the Notes.




     (b) In case the Company shall desire to withdraw the Noteholders’ conversion rights, it
shall fix a date for withdrawal (“Withdrawal Date”) and it or, at its written request
received by the Trustee, the Trustee, in the name of and at the expense of the Company,
shall mail or cause to be mailed a notice of such withdrawal not fewer than thirty (30) nor
more than sixty (60) days prior to the Withdrawal Date to the holders of Notes at their last
addresses as the same appear on the Note register; provided, however, that if the Company
shall give such notice, it shall also give written notice of the withdrawal of conversion
rights to the Trustee. The notice of withdrawal shall be given the fifth Business Day
following the last Trading Day of the 30 Trading Day period described in Section 13.13(a)
above (“Withdrawal Notice Date”). The notice of withdrawal shall set forth a brief
statement of the facts giving rise to the withdrawal of conversion rights and the Withdrawal
Date. The Company may not give notice of withdrawal if a default in payment of interest on
the Notes has occurred and is continuing. Such mailing shall be by first class mail. The
notice, if mailed in the manner herein provided, shall be conclusively presumed to have been
duly given, whether or not the holder receives such notice. In any case, failure to give
such notice by mail or any defect in the notice to the holder of any Note shall not affect
the validity of the proceedings for withdrawal of conversion rights of any other Note.



ARTICLE 14

MEETINGS OF HOLDERS OF NOTES




     Section 14.01. Purposes for Which Meetings May Be Called. A meeting of Holders of Notes may be
called at any time and from time to time pursuant to this Article 14 to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other act provided by this
Indenture to be made, given or taken by Holders of Notes.



     Section 14.02. Call, Notice and Place of Meetings.




     (a) The Trustee may at any time call a meeting of Holders of Notes for any purpose
specified in Section 14.01, to be held at such time and at such place as the Trustee shall
determine. Notice of every meeting of Holders of Notes, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 16.03, not less than 21 nor more than 180
days prior to the date fixed for the meeting.




     (b) In case at any time the Company or the Holders of at least 10% in principal amount
of the Outstanding Notes shall have requested the Trustee to call a meeting of the Holders
of Notes for any purpose specified in Section 14.01, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not
have mailed notice of or made the first publication of the notice of such meeting within 21
days after receipt of such request or shall not thereafter



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proceed to cause the meeting to be held as provided herein, then the Company or the
Holders of Notes in the amount above specified, as the case may be, may determine the time
and the place in the City of New York, New York, for such meeting and may call such meeting
for such purposes by giving notice thereof as provided in clause (a) of this Section 14.02.



     Section 14.03. Persons Entitled to Vote at Meetings. To be entitled to vote at any meeting of
Holders of Notes, a Person shall be (a) a Holder of one or more Outstanding Notes, or (b) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding
Notes by such Holder or Holders. The only Persons who shall be entitled to be present or to speak
at any meeting of Holders of Notes shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any representatives of the Company
and its counsel.



     Section 14.04. Quorum; Action. The Persons entitled to vote a majority in principal amount of the
Outstanding Notes shall constitute a quorum for a meeting of Holders of Notes; provided, however,
that if any action is to be taken at the meeting with respect to a consent or waiver which may be
given by the Holders of not less than a specified percentage in principal amount of the Outstanding
Notes, the Persons holding or representing the specified percentage in principal amount of the
Outstanding Notes will constitute a quorum. In the absence of a quorum within 30 minutes after the
time appointed for any such meeting, the meeting shall, if convened at the request of Holders of
Notes, be dissolved. In any other case the meeting may be adjourned for a period of not less than
ten (10) days as determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than ten (10) days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 14.02, except that such notice need be
given only once not less than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding Notes which shall
constitute a quorum.



     Except as limited by the proviso to Section 9.02, any resolution presented to a meeting or
adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only by
the affirmative vote of the Holders of a majority in principal amount of the Outstanding Notes;
provided, however, that, except as limited by the proviso to Section 9.02, any resolution with
respect to any request, demand, authorization, direction, notice, consent, waiver or other action
which this Indenture expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the Outstanding Notes may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Notes.



     Any resolution passed or decision taken at any meeting of Holders of Notes duly held in
accordance with this Section 14.04 shall be binding on all the Holders of Notes, whether or not
such Holders were present or represented at the meeting.



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     Section 14.05. Determination of Voting Rights; Conduct and Adjournment of Meetings.




     (a) Notwithstanding any other provisions of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for any meeting of Holders of Notes in
regard to proof of the holding of Notes and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Notes shall be proved in the
manner specified in Section 8.03 and the appointment of any proxy shall be proved in the
manner specified in Section 8.01.




     (b) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by Holders of Notes as
provided in Section 14.02(b), in which case the Company or the Holders of Notes calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding Notes of such series
represented at the meeting.




     (c) At any meeting, each Holder of a Note or proxy shall be entitled to one vote for
each $1,000 principal amount of Notes held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Note challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote, except as a Holder of a Note or proxy.




     (d) Any meeting of Holders of Notes duly called pursuant to Section 14.02 at which a
quorum is present may be adjourned from time to time by Persons entitled to vote a majority
in principal amount of the Outstanding Notes represented at the meeting; and the meeting may
be held as so adjourned without further notice.



     Section 14.06. Counting Votes and Recording Action of Meetings. The vote upon any resolution
submitted to any meeting of Holders of Notes shall be by written ballots on which shall be
subscribed the signatures of the Holders of Notes or of their representatives by proxy and the
principal amounts and serial numbers of the Outstanding Notes held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of Holders of Notes shall be
prepared by the secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 14.02 and, if applicable, Section 14.04.
Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company and



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another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of
the matters therein stated.



ARTICLE 15

SUBORDINATION




     Section 15.01. Agreement to Subordinate. The Company agrees, and each holder of Notes by accepting
a Note agrees, that the Indebtedness evidenced by the Notes, including the principal and interest
on the Notes and all other obligations with respect to the Notes or the Indenture, including
without limitation, any amounts received or receivable upon the exercise of rights of rescission or
other rights of action, including claims for damages or otherwise (and including deposits with the
Trustee following an Event of Default) is subordinated in right of payment, to the extent and in
the manner provided in this Article 15, to the prior payment in full in cash of all of the Senior
Indebtedness (whether outstanding on the date hereof or hereafter created, incurred, assumed or
guaranteed), and that the subordination is for the benefit of, and shall be enforceable directly
by, the holders of Senior Indebtedness. The holders of the Notes agree that the Notes are
unsecured and agree that neither they nor the Trustee shall accept any security from the Company or
any Subsidiary unless and until the Senior Indebtedness shall have been paid in full in cash or
other consideration satisfactory to the holders of the Senior Indebtedness.



     Section 15.02. Liquidation, Dissolution, Bankruptcy. Upon any distribution to creditors of the
Company in a liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its property, any
assignment for the benefit of creditors or any marshaling of the Company’s assets and liabilities:




     (a) holders of Senior Indebtedness shall be entitled to receive payment in full of all
obligations due in respect of such Senior Indebtedness (including interest accruing after,
or which would accrue but for, the commencement of any such proceeding at the rate specified
in the applicable Senior Indebtedness, whether or not the claim for such interest would be
allowed) before holders of Notes shall be entitled to receive any payment or other
distribution of any kind or character (whether in cash, property or securities (other than
by conversion under Article 13 hereof)) with respect to the Notes; and




     (b) until all Senior Indebtedness is paid in full in cash, any distribution to which
holders of Notes would be entitled but for this Article 15 shall be made to holders of
Senior Indebtedness, as their interests may appear; and




     (c) if any payment with respect to the Senior Indebtedness made prior to such
proceeding is subsequently set aside, the Senior Indebtedness shall be reinstated to the
extent of the amount set aside and the provisions of this Article 15 shall continue to apply
thereto until the Senior Indebtedness has been indefeasibly paid in full.



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     Section 15.03. Default on Designated Senior Indebtedness.




     (a) In the event of any default in the payment of the principal of or premium, if any,
or interest on, or any other payment obligation under any Designated Senior Indebtedness
occurs or any other default on Designated Senior Indebtedness occurs and the maturity of
such Designated Senior Indebtedness is accelerated in accordance with its terms (each such
event, a “Payment Default”), then, until all such payments due in respect of such Designated
Senior Indebtedness have been paid in full in cash or such default shall have been cured or
waived or shall have ceased to exist and any acceleration thereof has been rescinded in
writing; no distribution, payment or other transfer of assets by the Company or on its
behalf (including, without limitation, a redemption, repurchase or other acquisition of the
Notes, but not including delivery of Common Stock upon conversion of the Notes) from any
source, of any kind or character, whether in cash, securities or other property, by set-off
or otherwise, shall be made by the Company or on behalf of the Company with respect to the
Notes or to purchase, redeem or otherwise retire any of the Notes (including any repurchase
pursuant to the repurchase right of a holder pursuant to Article 3).




     (b) In addition, (i) if there has occurred and is continuing under any Designated
Senior Indebtedness, or any agreement pursuant to which such Designated Senior Indebtedness
is issued, any default (other than a Payment Default), which default shall not have been
cured or waived, giving the holders of such Designated Senior Indebtedness the right to
declare such Designated Senior Indebtedness immediately due and payable (a “Non Payment
Default”) and (ii) in the event that such Non Payment Default is a default under Designated
Senior Indebtedness other than the Credit Agreement Debt, the Trustee shall have received
written notice from one or more holders of such Designated Senior Indebtedness, or one or
more representatives of such holder or holders (a “Payment Blockage Notice”), then, anything
contained in this Indenture to the contrary notwithstanding, no distribution, payment or
other transfer of assets by the Company or on its behalf (including, without limitation, a
redemption, repurchase or other acquisition of the Notes, but not including delivery of
Common Stock upon conversion of the Notes) from any source, of any kind or character,
whether in cash, securities or other property, by set-off or otherwise, in respect of the
Notes, and no purchase, redemption or other retirement (including any repurchase pursuant to
the repurchase right of a holder pursuant to Article 3) of the Notes, shall be made by or on
behalf of the Company during the period (the “Payment Blockage Period”) commencing, in the
case of a Non Payment Default under the Credit Agreement, on the date of such Non Payment
Default, and otherwise, commencing on the date of receipt of the Payment Blockage Notice
and, in either case, ending on the earlier of 179 calendar days after the commencement of
such Payment Blockage Period, or the date on which such Non Payment Default is cured or
waived or shall have ceased to exist; provided that if the Maturity of such Designated
Senior Indebtedness has been accelerated, such Payment Blockage Period shall not end until
such acceleration has been rescinded in writing or all payments due with respect to such
Designated Senior Indebtedness have been paid in full in cash.



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     Notwithstanding the provisions contained in this Section 15.03(a) and 15.03(b) (but subject to
Section 15.01), the Company may resume payments on the Notes in the case of either a Payment
Default or a Non Payment Default, after the Designated Senior Indebtedness has been indefeasibly
paid in full in cash. No new Payment Blockage Period may start unless at least 90 days have
elapsed during which no default with respect to Designated Senior Indebtedness (or judicial
proceeding with respect to such debt) has occurred or was continuing and in no event shall more
than two Payment Blockage Notices become effective during any 365-day period. No default under
Designated Senior Indebtedness that is a Non Payment Default that existed or was continuing on the
date of commencement of the applicable Payment Blockage Period (and no judicial proceeding with
respect to such Non Payment Default) shall be, or be made, the basis of a subsequent Payment
Blockage Notice unless such default shall have been waived or cured or ceases to exist for a period
of not less than 90 consecutive days (and provided that in no event shall more than two Payment
Blockage Notices become effective during any 365-day period).




     (c) In the event any judicial proceeding shall be pending with respect to any Payment
Default or Non Payment Default with respect to Designated Senior Indebtedness, then,
anything contained in this Indenture to the contrary notwithstanding, no payment on account
of the principal of or interest on the Notes, and no repurchase or other acquisition of the
Notes, shall be made by or on behalf of the Company.



     Section 15.04. Acceleration of Notes. In the event of the acceleration of the Notes because of an
Event of Default, the Company may not make any payment or distribution to the Trustee or any holder
of Notes in respect of obligations with respect to Notes and may not purchase, redeem or otherwise
retire (including any repurchase pursuant to the repurchase right of a holder pursuant to Article
3) from the Trustee or any holder of Notes any Notes until all Senior Indebtedness has been paid in
full in cash or other consideration satisfactory to holders of Senior Indebtedness or such
acceleration has been rescinded in accordance with the terms of this Indenture.



     If payment of the Notes is to be accelerated because of an Event of Default (other than an
Event of Default with respect to the Company specified in Section 6.01(g), (h) or (i)), the Company
or the Trustee (based upon the contact information provided by the Company in writing from time to
time) shall promptly notify holders of Designated Senior Indebtedness or the representatives of
such Designated Senior Indebtedness of the acceleration and, so long as any Credit Agreement Debt
is outstanding any such acceleration will not be effective with respect to the Company and the
Company may not pay the Notes, until the earlier of (i) an acceleration of Indebtedness under the
Credit Agreement or (ii) five Business Days after the administrative agent under the Credit
Agreement receives notice of such acceleration (it being understood that any payment or
distribution on the Notes by the Company may only be made as and when permitted by this Article
15).



     Section 15.05. When Distribution Must Be Paid Over. In the event that the Trustee, the Paying
Agent, any holder of Notes or any other person receives any payment or distribution of assets of
the Company or any collateral security of any kind on or with respect to the Notes in contravention
of any terms contained in this Indenture, whether in cash, property or securities, including,
without limitation, by way of set-off or otherwise, before all Senior Indebtedness is



86









 







paid in full in cash, then such payment or distribution shall be held by the recipient in trust for
the benefit of holders of Senior Indebtedness, and shall be paid over and delivered to the holders
of Senior Indebtedness or their representative(s), to the extent necessary to make payment in full
in cash of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment
or distribution or provision therefor, to or for the holders of Senior Indebtedness; provided, that
the foregoing shall apply to the Trustee only if a Responsible Officer of the Trustee has actual
knowledge (as determined in accordance with Section 7.02) that such payment or distribution is
prohibited by this Indenture.



     With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform only
such obligations on the part of the Trustee as are specifically set forth in this Article 15, and
no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of holders of Notes or the Company or any
other person money or assets to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article 15, except if such payment or distribution is made as a result of the
willful misconduct or negligence of the Trustee.



     Section 15.06. Notice by Company. The Company shall promptly notify the Trustee of any facts known
to the Company that would cause a payment of any obligations with respect to the Notes or the
purchase of any Notes by the Company to violate this Article 15, but failure to give such notice
shall not affect the subordination of the Notes to the Senior Indebtedness as provided in this
Article 15.



     Section 15.07. Subrogation. After all Senior Indebtedness is indefeasibly paid in full and until
the Notes are paid in full, holders of Notes shall be subrogated (equally and ratably with all
other Indebtedness pari passu with the Notes) to the rights of holders of Senior Indebtedness to
receive distributions applicable to Senior Indebtedness to the extent that distributions otherwise
payable to the holders of Notes have been applied to the payment of Senior Indebtedness. A
distribution made under this Article 15 to holders of Senior Indebtedness that otherwise would have
been made to holders of Notes is not, as between the Company, its creditors other than holders of
Senior Indebtedness and holders of Notes, a payment by the Company on the Notes.



     Section 15.08. Relative Rights. This Article 15 defines the relative rights of holders of Notes
and holders of Senior Indebtedness. Nothing contained in this Indenture shall otherwise:




     (a) impair, as between the Company and holders of Notes, the obligation of the Company,
which is absolute and unconditional, to pay principal of and interest (including Additional
Interest, if any) on the Notes in accordance with their terms;




     (b) affect the relative rights of holders of Notes and creditors (other than with
respect to Senior Indebtedness) of the Company, other than their rights in relation to
holders of Senior Indebtedness; or



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     (c) prevent the Trustee or any holder of Notes from exercising its available remedies
upon a default or Event of Default, subject to the notice requirements of Section 6.01 and
to the rights of holders and owners of Senior Indebtedness to receive distributions and
payments otherwise payable to holders of Notes.



     If the Company fails because of this Article 15 to pay principal of or interest (including
Additional Interest, if any) on a Note on the due date, the failure is still a default or Event of
Default.



     Section 15.09. Subordination May Not Be Impaired. No right of any holder of Senior Indebtedness to
enforce the subordination of the Indebtedness evidenced by the Notes shall be impaired by any act
or failure to act by the Company, the Trustee, the Paying Agent or any holder of Notes or by the
failure of the Company, the Trustee, the Paying Agent or any such holder to comply with this
Indenture. No right of any present or future holder of any Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Notes shall at any time in any way be prejudiced
or impaired by any act or failure to act by any such holder.



     Section 15.10. Distribution or Notice to Representative. Whenever a distribution is to be made or
a notice given to holders of Senior Indebtedness, the distribution may be made and the notice given
to their representative(s).



     Upon any payment or distribution of assets of the Company referred to in this Article 15, the
Trustee and the holders of Notes shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction or upon any certificate of such representative or of the
liquidating trustee or agent or other person making any distribution to the Trustee or to the
holders of Notes for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other Indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 15.



     Section 15.11. Rights of Trustee and Paying Agent. The Company shall give prompt written notice to
the Trustee of any fact known to the Company that would prohibit the making of any payment to or by
the Trustee in respect of the Notes. Notwithstanding the provisions of this Article 15 or any
other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment or distribution by the Trustee (other
than pursuant to Section 7.04), and the Trustee may continue to make payments on the Notes, unless
a Responsible Officer shall have received at least two Business Days prior to the date of such
payment or distribution written notice of facts that would cause such payment or distribution with
respect to the Notes to violate this Article 15. Only the Company or the holder or representative
of any class of Senior Indebtedness may give such notice.



     Nothing contained in this Article 15 shall impair the claims of, or payments to, the Trustee
under or pursuant to Section 7.06.



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     The Trustee in its individual or any other capacity may hold Senior Indebtedness with the same
rights it would have if it were not Trustee. Any Note Registrar, Paying Agent or Conversion Agent
may do the same with like rights.



     Section 15.12. Authorization to Effect Subordination. Each holder of a Note by such holder’s
acceptance thereof authorizes and directs the Trustee on the holder’s behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in this Article 15, and
appoints the Trustee to act as the holder’s attorney-in-fact for any and all such purposes. If the
Trustee does not file a proper proof of claim or proof of debt in the form required in any
proceeding relative to the Company (or any other obligor on the Notes), its creditors or its
property, at least 30 days before the expiration of the time to file such claim, the holders of any
Senior Indebtedness or their representatives are hereby authorized to file an appropriate claim for
and on behalf of the holders of the Notes.



     Section 15.13. Article Applicable to Paying Agents. In case at any time any Paying Agent other
than the Trustee shall have been appointed by the Company and be then acting hereunder, the term
“Trustee” as used in this Article 15 shall in such case (unless the context otherwise requires) be
construed as extending to and including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this Article in addition to or in place
of the Trustee.



     Section 15.14. Senior Indebtedness and Designated Senior Indebtedness Entitled to Rely. The
holders of Senior Indebtedness and Designated Senior Indebtedness shall have the right to rely upon
this Article 15, and no amendment or modification of the provisions contained in this Article 15
shall materially and adversely affect the rights of any holder of Credit Agreement Debt outstanding
at the time of such amendment or modification unless the holders of such Credit Agreement Debt (or
any group or representative thereof authorized to give a consent) shall have agreed in writing
thereto.



     Section 15.15. Permitted Payments. Notwithstanding anything to the contrary contained in this
Article 15, the holders of Notes may receive and retain at any time on or prior to the Maturity
Date (a) securities that are subordinated to at least the same extent as the Notes to (i) Senior
Indebtedness and (ii) any securities issued in exchange for Senior Indebtedness and (b) following
repayment of the Credit Agreement Debt in full in cash, payments and other distributions made from
any trust created pursuant to Section 11.01.



     Section 15.16. No Waiver of Subordination Provisions. No right of any present or future holder of
any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company, or by any
non-compliance by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise charged with. All
rights and interests under this Indenture of any holder of Senior Indebtedness and all agreements
of the Trustee, the Company and the holders of the Notes under this Article 15 shall remain in full
force and effect irrespective of any lack of validity or enforceability of any document or
instrument relating to the Senior Indebtedness or any other



89









 







circumstance that might otherwise constitute a defense available to or a discharge of the Trustee,
the Company or such holder.



     Without in any way limiting the generality of the foregoing paragraph, the holders of Senior
Indebtedness may, at any time and from time to time, without the consent of or notice to the
Trustee or the holders of the Notes, without incurring responsibility to the holders of the Notes
and without impairing or releasing the subordination provided in this Article 15 or the obligations
hereunder of the holders of the Notes to the holders of Senior Indebtedness, do any one or more of
the following, subject to any rights of the Company in respect thereof: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter, Senior Indebtedness,
or otherwise amend or supplement in any manner Senior Indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release any person liable in any manner for the collection of Senior Indebtedness; and
(iv) exercise or refrain from exercising any rights against the Company and any other person.



     Section 15.17. Certain Conversions Deemed Payment. For the purposes of this Article 15 only,
(i) the issuance and delivery of junior securities upon conversion of Notes in accordance with
Article 13 shall not be deemed to constitute a payment or distribution or other transfer of assets
with respect to the Notes or on account of the principal of or premium or interest on Notes or on
account of the purchase, repurchase, redemption, retirement or other acquisition of Notes, and
(ii) the payment, issuance or delivery of cash (except in satisfaction of fractional shares
pursuant to Section 13.03), property or securities (other than junior securities) upon conversion
of a Note shall be deemed to constitute payment on account of the principal of such Note. For the
purposes of this Section 15.17, the term “junior securities” means (a) shares of any stock of any
class of the Company and securities into which the Notes are convertible pursuant to Article 13 and
(b) securities of the Company which are subordinated in right of payment to all Senior Indebtedness
which may be outstanding at the time of issuance or delivery of such securities to substantially
the same extent as, or to a greater extent than, the Notes are so subordinated as provided in this
Article 15. Nothing contained in this Article 15 or elsewhere in this Indenture or in the Notes is
intended to or shall impair, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Notes, the right, which is absolute and unconditional, of the
Holder of any Note to convert such Note in accordance with Article 13.



ARTICLE 16

MISCELLANEOUS PROVISIONS




     Section 16.01. Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements by the Company contained in this Indenture shall bind its successors and
assigns whether so expressed or not.



     Section 16.02. Official Acts by Successor Corporation. Any act or proceeding by any provision of
this Indenture authorized or required to be done or performed by any board, committee or officer of
the Company shall and may be done and performed with like force and



90









 







effect by the like board, committee or officer of any Person that shall at the time be the lawful
sole successor of the Company.



     Section 16.03. Addresses for Notices, etc. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by the Holders of Notes
on the Company shall be in writing and shall be deemed to have been sufficiently given or made, for
all purposes, if given or served by being deposited postage prepaid by registered or certified mail
in a post office letter box, or sent by overnight courier, or sent by telecopier transmission
addressed as follows:



     To Company:




GLG Partners, Inc.

399 Park Avenue, 38th Floor

New York, New York 10022

Telecopier No.: 212-224-7244

Attention: General Counsel



     Any notice, direction, request or demand hereunder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or served by being deposited,
postage prepaid, by registered or certified mail in a post office letter box, or sent by overnight
courier, or sent by telecopier transmission addressed as follows:




The Bank of New York Mellon

101 Barclay Street

New York, New York 10286

Telecopier No.: (212) 815-5915

Attention: Global Corporate Trust Services



     with a copy to:




The Bank of New York Mellon

One Canada Square

London E14 5AL

United Kingdom

Attention: Global Corporate Trust

Telecopier No.: (011) 44-207 964-2536



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



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



91









 





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



     Section 16.04. Governing Law. This Indenture shall be governed by, and construed in accordance
with, the laws of the State of New York.



     Section 16.05. Evidence of Compliance with Conditions Precedent, Certificates to Trustee. Upon any
application or demand by the Company to the Trustee to take any action under any of the provisions
of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to the proposed action
have been complied with, and, if requested by the Trustee, an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent have been complied with.



     Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statement or opinion contained in such certificate or opinion is based; (3) a
statement that, in the opinion of such person, such person 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 as to whether or not, in
the opinion of such person, such condition or covenant has been complied with; provided, however,
that with respect to matters of fact an Opinion of Counsel may rely on an Officers’ Certificate or
certificates of public officials.



     Section 16.06. Legal Holidays. In any case in which the Maturity Date of interest on or principal
of the Notes or the Designated Event Repurchase Date of any Note will not be a Business Day, then
payment of such interest on or principal of the Notes need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if made on the Maturity
Date or the Designated Event Repurchase Date, and no interest shall accrue for the period from and
after such date.



     Section 16.07. Trust Indenture Act. This Indenture is hereby made subject to, and shall be
governed by, the provisions of the Trust Indenture Act required to be part of and to govern
indentures qualified under the Trust Indenture Act; provided that this Section 16.07 shall not
require this Indenture or the Trustee to be qualified under the Trust Indenture Act prior to the
time such qualification is in fact required under the terms of the Trust Indenture Act, nor shall
it constitute any admission or acknowledgment by any party to the Indenture that any such
qualification is required prior to the time such qualification is in fact required under the terms
of the Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another
provision hereof that is required to be included in an indenture qualified under the Trust
Indenture Act, such required provision shall control.



92









 





     Section 16.08. No Security Interest Created. Nothing in this Indenture or in the Notes, expressed
or implied, shall be construed to constitute a security interest under the Uniform Commercial Code
or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction in which
property of the Company or its Subsidiaries is located.



     Section 16.09. Benefits of Indenture. Nothing in this Indenture or in the Notes, express or
implied, shall give to any Person, other than the parties hereto, any Paying Agent, any
authenticating agent, any Note Registrar and their successors hereunder and the Holders of Notes
any benefit or any legal or equitable right, remedy or claim under this Indenture.



     Section 16.10. Table of Contents, Headings, etc. The table of contents and the titles and headings
of the Articles and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.



     Section 16.11. Authenticating Agent. The Trustee may appoint an authenticating agent that shall be
authorized to act on its behalf, and subject to its direction, in the authentication and delivery
of Notes in connection with the original issuance thereof and transfers and exchanges of Notes
hereunder, including under Sections 2.04, 2.05, 2.06, 2.07, and 3.02, as fully to all intents and
purposes as though the authenticating agent had been expressly authorized by this Indenture and
those Sections to authenticate and deliver Notes. For all purposes of this Indenture, the
authentication and delivery of Notes by the authenticating agent shall be deemed to be
authentication and delivery of such Notes “by the Trustee” and a certificate of authentication
executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any
requirement hereunder or in the Notes for the Trustee’s certificate of authentication. Such
authenticating agent shall at all times be a Person eligible to serve as trustee hereunder pursuant
to Section 7.09.



     Any corporation into which any authenticating agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, consolidation or conversion
to which any authenticating agent shall be a party, or any corporation succeeding to the corporate
trust business of any authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this Section 16.11, without
the execution or filing of any paper or any further act on the part of the parties hereto or the
authenticating agent or such successor corporation.



     Any authenticating agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating
agent by giving written notice of termination to such authenticating agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible under this Section 16.11, the Trustee shall either
promptly appoint a successor authenticating agent or itself assume the duties and obligations of
the former authenticating agent under this Indenture and, upon such appointment of a successor
authenticating agent, if made, shall give written notice of such appointment of a successor
authenticating agent to the Company and shall mail notice of such



93









 







appointment of a successor authenticating agent to all Holders of Notes as the names and
addresses of such Holders appear on the Note Register.



     The Company agrees to pay to the authenticating agent from time to time such reasonable
compensation for its services as shall be agreed upon in writing between the Company and the
authenticating agent.



     The provisions of Sections 7.02, 7.03, 7.04 and 8.03 and this Section 16.11 shall be
applicable to any authenticating agent.



     Section 16.12. Execution in Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.



     Section 16.13. Severability. In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.



     Section 16.14. Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS
CONTEMPLATED HEREBY.



     Section 16.15. Submission to Jurisdiction. The Company (i) agrees that any suit, action or
proceeding against it arising out of or relating to this Indenture or the Notes, as the case may
be, may be instituted in any federal or state court sitting in the Borough of Manhattan in The City
of New York; (ii) waives to the fullest extent permitted by applicable law, any objection which it
may now or hereafter have to the laying of venue of any such suit, action or proceeding, and any
claim that any suit, action or proceeding in such a court has been brought in an inconvenient
forum; and (iii) submits to the non-exclusive jurisdiction of such courts in any suit, action or
proceeding.



     The Bank of New York Mellon hereby accepts the trusts in this Indenture declared and provided,
upon the terms and conditions herein above set forth.



94









 






     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed.



	 	 	 	 	 
	 	GLG PARTNERS, INC.

 	 
	 	By:  	/s/ Alejandro San Miguel
 	 
	 	 	Name:  	Alejandro San Miguel 	 
	 	 	Title:  	Corporate Secretary and General Counsel 	 
	 
	 	THE BANK OF NEW YORK

MELLON, as Trustee

 	 
	 	By:  	/s/ Noora Pahkala
 	 
	 	 	Name:  	Noora Pahkala 	 
	 	 	Title:  	Assistant Vice President 	 
	 



[Signature Page to Indenture]





 









 





Exhibit 4.2




EXHIBIT A



[[Include only for Global Notes—][THIS IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE
DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND
HOLDER OF THIS CONVERTIBLE SUBORDINATED NOTE FOR ALL PURPOSES. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK) (THE “DEPOSITARY,” WHICH TERM INCLUDES ANY SUCCESSOR DEPOSITARY FOR THE
CERTIFICATES) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREIN IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]



[Include only for Rule 144A Notes—][THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”) OR ANY STATE OR FOREIGN SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF
OR A BENEFICIAL INTEREST HEREIN, THE ACQUIRER: (1) REPRESENTS THAT (A) IT AND ANY ACCOUNT FOR WHICH
IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT
OR (B) IT IS AN “ACCREDITED INVESTOR” (WITHIN THE MEANING OF RULE 501 UNDER REGULATION D OF THE
SECURITIES ACT), (2) AGREES FOR THE BENEFIT OF GLG PARTNERS, INC. (THE “COMPANY”) THAT IT WILL NOT
OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO
THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF
TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER AND
(Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT: (A) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, OR (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE
UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER), OR (C)
TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR (D) TO
AN ACCREDITED INVESTOR THAT IS ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT, IN A MINIMUM PRINCIPAL
AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO


A-1









 






OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR (F)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THE SECURITIES ARE TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE
WITH (2)(C), (2)(D), (2)(E) OR (2)(F), THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE
DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN
ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT
AND APPLICABLE STATE AND FOREIGN SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY
OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]



[Include only for Regulation S Notes—][THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION
OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”) OR ANY STATE OR FOREIGN SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES (AS DEFINED IN RULE 902(L) UNDER THE SECURITIES ACT)
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS (AS DEFINED IN RULE 902(K) UNDER THE
SECURITIES ACT) EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT IT IS NOT A U.S. PERSON AND IS PHYSICALLY OUTSIDE THE UNITED STATES AT THE TIME IT IS
ACQUIRING THE SECURITIES, (2) AGREES FOR THE BENEFIT OF GLG PARTNERS, INC. (THE “COMPANY”) THAT IT
WILL NOT WITHIN SIX MONTHS AFTER THE ORIGINAL ISSUANCE OF THE SECURITIES RESELL OR OTHERWISE
TRANSFER THE SECURITIES EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO
BE EFFECTIVE AT THE TIME OF SUCH TRANSFER), OR (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (D) PURSUANT TO RULE 144
UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT, (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THE SECURITIES ARE
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND AND (4) IF IT HAS ACQUIRED THE
SECURITIES IN A TRANSACTION PURSUANT TO REGULATION S UNDER THE SECURITIES ACT, AGREES THAT IT WILL
NOT WITHIN SIX MONTHS ENGAGE IN HEDGING TRANSACTIONS INVOLVING THESE SECURITIES UNLESS IN
COMPLIANCE WITH THE SECURITIES ACT. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH
(2)(C), (2)(D) OR (2)(E), THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF
SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO
DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN


A-2









 






COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE AND FOREIGN SECURITIES LAWS. NO
REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]



[Include only for Affiliate Notes—][THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”) OR ANY STATE OR FOREIGN SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF
OR A BENEFICIAL INTEREST HEREIN, THE ACQUIRER: (1) REPRESENTS THAT IT IS AN “ACCREDITED INVESTOR”
(WITHIN THE MEANING OF RULE 501 UNDER REGULATION D OF THE SECURITIES ACT), (2) AGREES FOR THE
BENEFIT OF GLG PARTNERS, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT: (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, OR (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER
THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER), OR (C)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR (D)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
PROVIDED THAT ANY TRANSFEREE SHALL AGREE IN WRITING, SATISFACTORY TO THE COMPANY, TO BE BOUND BY
THE FOREGOING RESTRICTIONS AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THE SECURITIES
ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. PRIOR TO THE REGISTRATION OF
ANY TRANSFER IN ACCORDANCE WITH (2)(C) OR (2)(D), THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO
REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE
REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE
SECURITIES ACT AND APPLICABLE STATE AND FOREIGN SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO
THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]





A-3











 






Exhibit A




GLG PARTNERS, INC.

5.00% DOLLAR-DENOMINATED CONVERTIBLE SUBORDINATED NOTE DUE

MAY 15, 2014




			
	 	 	 
	CUSIP No.: [      ]
	 	No. [      ]






[Representing a principal amount of up to]1

$[     ]




     GLG Partners, Inc., a Delaware corporation (herein called the “Company,” which term includes
any successor corporation under the Indenture referred to on the reverse hereof), for value
received hereby promises to pay to                     , or its registered assigns, the principal
sum of [     ] DOLLARS ($[          ]), [or such lesser amount as is set forth in the Schedule
of Increases or Decreases In Note on the other side of this Note,]2 on May 15, 2014 at
the office or agency of the Company maintained for that purpose in accordance with the terms of the
Indenture, in such coin or currency of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts, and to pay interest, semi-annually on
May 15 and November 15 of each year (each, an “Interest Payment Date”), to the holders of record as
of the preceding May 1 and November 1, respectively (each, an “Interest Record Date”), commencing
November 15, 2009, on said principal sum at said office or agency, in like coin or currency, at the
rate per annum of 5.00%, from the May 15 or November 15, as the case may be, next preceding the
date of this Note to which interest has been paid or duly provided for, unless no interest has been
paid or duly provided for on the Notes, in which case from May 15, 20093, until payment
of said principal sum has been made or duly provided for. The Company shall pay interest on any
Notes in certificated form by check mailed to the address of the Person entitled thereto as it
appears in the Note Register; provided, however, that a Holder of any Notes in certificated form in
the aggregate principal amount of more than $5.0 million may specify by written notice to the
Company that it pay interest by wire transfer of immediately available funds to the account
specified by the Noteholder in such notice, or on any Global Note by wire transfer of immediately
available funds to the account of the Depositary or its nominee.



     The Company promises to pay interest on overdue principal, premium, if any, and (to the extent
that payment of such interest is enforceable under applicable law) interest at the rate of 1% per
annum above the rate borne by the Notes.



     Reference is made to the further provisions of this Note set forth on the reverse hereof,
including, without limitation, provisions giving the Holder of this Note the right to convert this
Note into shares of Common Stock on the terms and subject to the limitations referred to on the





 




			
	1	 	Insert only for Global Note.
	 
	2	 	Insert only for Global Note.
	 
	3	 	With respect to Initial Notes.




A-4 









 









reverse hereof and as more fully specified in the Indenture. Such further provisions shall
for all purposes have the same effect as though fully set forth at this place.




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



A-5 









 





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



Dated:




	 	 	 	 	 
	 	GLG PARTNERS, INC.

 	 
	 	By:  	 
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




A-6 









 





     This is one of the Notes described in the within-named Indenture.



Dated:




	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON, as

Trustee

 	 
	 	By:  	 
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




A-7 









 






[FORM OF REVERSE SIDE OF NOTE]




GLG PARTNERS, INC.

5.00% DOLLAR-DENOMINATED CONVERTIBLE SUBORDINATED NOTE DUE 

MAY 15, 2014




     This Note is one of a duly authorized issue of Notes of the Company, designated as its 5.00%
Dollar-Denominated Convertible Subordinated Notes due May 15, 2014 (herein called the “Notes”),
issued under and pursuant to an Indenture dated as of May 15, 2009 (herein called the “Indenture”),
among the Company and The Bank of New York Mellon, as trustee (herein called the “Trustee”), to
which Indenture and all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee,
the Company and the Holders of the Notes. Defined terms used but not otherwise defined in this
Note shall have the respective meanings ascribed thereto in the Indenture.



     The Notes are general subordinated unsecured obligations of the Company initially limited to
$229,000,000. The Company may, without the consent of the Holders, issue Additional Notes under the
Indenture with the same terms as the Notes in an unlimited aggregate principal amount. The
Indenture does not limit other debt of the Company, secured or unsecured. Each holder of Notes by
accepting a Note agrees, that the Indebtedness evidenced by the Notes, including the principal and
interest on the Notes and all other obligations with respect to the Notes or the Indenture are
subordinated in right of payment, to the extent and in the manner provided in Article 15 of the
Indenture, to the prior payment in full in cash of all of the Senior Indebtedness (whether
outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed).



     If an Event of Default (other than an Event of Default specified in Sections 6.01(g), 6.01(h)
and 6.01(i)) occurs and is continuing, the principal of, premium, if any, and accrued and unpaid
interest on all Notes may be declared to be due and payable by either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Notes then outstanding, and, upon said
declaration the same shall be immediately due and payable. If an Event of Default specified in
Section 6.01(g), 6.01(h) or 6.01(i) of the Indenture occurs, the principal of and premium, if any,
and interest accrued and unpaid on all the Notes shall be immediately and automatically due and
payable without necessity of further action.



     The Indenture contains provisions permitting the Company and the Trustee, with the consent of
the Holders of not less than a majority in aggregate principal amount of the Notes at the time
outstanding, to execute supplemental indentures adding any provisions to or changing in any manner
or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the Holders of the Notes, subject to exceptions set forth in Section
9.02 of the Indenture. Subject to the provisions of the Indenture, the Holders of not less than a
majority in aggregate principal amount of the Notes at the time outstanding may, on behalf of the
Holders of all of the Notes, waive any past default or Event of Default, subject to exceptions set
forth in the Indenture.



A-8 









 





     No reference herein to the Indenture and no provision of this Note or of the Indenture shall
impair, as among the Company and the Holder of the Notes, the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, on and interest on this Note
at the place, at the respective times, at the rate and in the coin or currency herein and in the
Indenture prescribed.



     Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months.



     The Notes are issuable in fully registered form, without coupons, in denominations of $100,000
principal amount and integral multiples of $1,000 in excess thereof at the office or agency of the
Company referred to on the face hereof, and in the manner and subject to the limitations provided
in the Indenture, without payment of any service charge but with payment of a sum sufficient to
cover any tax, assessment or other governmental charge that may be imposed in connection with any
registration or exchange of Notes. Notes may be exchanged for a like aggregate principal amount of
Notes of any other authorized denominations.



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



     Upon the occurrence of a Designated Event, Holders of Notes shall have the right to require
the Company to repurchase all or a portion of their Notes pursuant to Section 3.02 of the
Indenture.



     Subject to the restrictions on ownership of shares of Common Stock as set forth in Section
13.11 of the Indenture and upon compliance with the provisions of the Indenture, on or prior to the
close of business on the Business Day immediately preceding the Maturity Date, the Holder of any
Notes not previously repurchased shall have the right, at such Holder’s option, to convert its
Notes, or any portion thereof which is a multiple of $1,000, into a number of shares of Common
Stock equal to (i) the aggregate principal amount of Notes to be converted divided by $1,000,
multiplied by (ii) the Applicable Conversion Rate.



     If at any time after the third anniversary of the Issue Date, the Volume Weighted Average
Price of the Common Stock shall have exceeded 150% of the then applicable Conversion Price on at
least 20 Trading Days in any consecutive 30-Trading Day period, the Company may withdraw the
Noteholders’ right to convert the Notes by fixing a Withdrawal Date by giving notice to the Trustee
on the fifth Business Day following the last Trading Day of the 30-Trading Day period. The Trustee,
in the name of and at the expense of the Company, shall mail or cause to be mailed a notice of such
withdrawal not fewer than thirty (30) nor more than sixty (60) days prior to the Withdrawal Date to
the holders of Notes.



     Notwithstanding any other provision of the Notes, no Holder of Notes shall be entitled to
receive shares of Common Stock upon conversion of Notes to the extent that, as a result of a
conversion of Notes by a Holder, a Regulatory Condition would be applicable to such Holder, unless
the Company has previously delivered to the Trustee a written Control Consent with respect to such
Holder. Under certain circumstances the Company and the Trustee may enter into a Supplemental
Indenture without the consent of the Holders to add an Additional Regulatory Condition.



A-9 









 





     In the event the Holder surrenders this Note for conversion in connection with a Change of
Control, the Company will increase the Applicable Conversion Rate by the Additional Change of
Control Shares as and when provided in the Indenture.



     All payments in respect of the Notes will be made without withholding or deduction for or on
account of any present or future taxes or duties of whatever nature imposed or levied by or on
behalf of any jurisdiction other than the United States (“Relevant Taxing Jurisdiction”) or any
political subdivision or any authority thereof or therein having power to tax unless such
withholding or deduction is required by law. If, as a result of a Redomiciliation by the Company,
any amounts are required to be so withheld or deducted, the Company will, subject to specified
exceptions, pay such additional amounts as shall be necessary in order that the net amounts
received by the Holders of the Notes after such withholding or deduction shall equal the respective
amounts which would otherwise have been receivable in respect of the Notes in the absence of such
withholding or deduction.



     No recourse for the payment of the principal of or any premium or interest on this Note, or
for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture or any supplemental indenture or
in any Note, or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, partner, member, manager, employee, agent, officer, director
or Subsidiary, as such, past, present or future of the Company or any of the Company’s Subsidiaries
or of any successor thereto, either directly or through the Company or any of the Company’s
Subsidiaries or of any successor thereto, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that all such liability is hereby expressly waived and released as a condition of, and as
consideration for, the execution of the Indenture and the issue of this Note.



     The Indenture and the Notes shall be governed by, and construed in accordance with, the laws
of the State of New York. In the event of any conflict between the terms of this Note and the terms
of the Indenture, the terms of the Indenture shall govern.



     In addition to the rights provided to Holders of Notes under the Indenture, Holders of Notes
that are Restricted Securities shall have all applicable rights set forth in the Registration
Rights Agreement dated as of May 15, 2009, among the Company and the Initial Purchasers named
therein (the “Registration Rights Agreement”), including the right to receive Additional Interest
(as defined in the Registration Rights Agreement) and the right to receive additional shares of
Common Stock upon conversion under specified circumstances.



A-10 









 





ABBREVIATIONS




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



	 	 	 	 	 
	TEN-COM

	 	as tenants in common
	 	UNIF GIFT MIN ACT –

Custodian
	 
	 	 	 	 
	TEN-ENT

	 	as tenant by the entireties
	 	(Cust) (Minor)
	 
	 	 	 	 
	JT-TEN

	 	as joint tenants with right of

survivorship and not under

Uniform Gifts to Minors Act as

tenants in common
	 	(State)






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



A-11 









 





CONVERSION NOTICE





			
	TO:	 	GLG PARTNERS, INC.

The Bank of New York Mellon, as Trustee





     The undersigned registered owner of this Note hereby irrevocably exercises the option to
convert this Note, or the portion thereof (which is $1,000 or an integral multiple thereof) below
designated, into shares of Common Stock in accordance with the terms of the Indenture referred to
in this Note, and directs that the shares of Common Stock issuable and deliverable upon such
conversion, together with a check in payment for cash payable for fractional shares, if any, and
any Notes representing any unconverted principal amount hereof, be issued and delivered to the
registered holder hereof unless a different name has been indicated below. Capitalized terms used
herein but not defined shall have the meanings ascribed to such terms in the Indenture. If shares
or any portion of this Note not converted are to be issued in the name of a person other than the
undersigned, the undersigned will provide the appropriate information below and pay all transfer
taxes payable with respect thereto. Any amount required to be paid by the undersigned on account
of interest accompanies this Note.



     The undersigned registered owner of this Note hereby certifies that receipt of the shares of
Common Stock to it upon conversion of this Note (or the portion below designated) would not cause a
Regulatory Condition to be applicable to such registered owner or the Person on whose behalf the
Note is being converted, unless the Company has previously delivered to the Trustee a written
Control Consent with respect to such Holder.



	 	 	 
	Dated:

	 	 
	 

	 	 
	 

	 	 
	 

	 	 
	 

	 	Signature(s)
	 
	 	 
	 

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

	 	 
	 

	 	 
	 

	 	Signature Guarantee






A-12 









 





     Fill in the registration of shares of Common Stock to be issued, and Notes if to be delivered,
and the person to whom payment for fractional shares is to be made, if to be made, other than to
and in the name of the registered holder: Please print name and address



	 	 	 
	 
 

(Name)

	 	 
	 
	 	 
	  

(Street
Address)

	 	 
	 
	 	 
	  

(City,
State and Zip Code)

	 	 





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




$                     ,000




Social Security or Other Taxpayer Identification Number:



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




A-13 









 








REPURCHASE NOTICE





			
	TO	 	GLG PARTNERS, INC.

The Bank of New York Mellon, as Trustee





     The undersigned registered owner of this Note hereby irrevocably acknowledges receipt of a
notice from GLG Partners, Inc. (the “Company”) regarding the right of Holders to elect to require
the Company to repurchase the Notes and requests and instructs the Company to repay the entire
principal amount of this Note, or the portion thereof (which is $1,000 or an integral multiple
thereof) below designated, in cash, in accordance with the terms of the Indenture at the price of
100% of such entire principal amount or portion thereof, together with accrued and unpaid interest
to, but excluding, the Designated Event Repurchase Date, as the case may be, to the registered
holder hereof. Capitalized terms used herein but not defined shall have the meanings ascribed to
such terms in the Indenture. The Notes shall be repurchased by the Company as of the Designated
Event Repurchase Date pursuant to the terms and conditions specified in the Indenture.



     NOTICE: The above signatures of the holder(s) hereof must correspond with the name as written
upon the face of the Note in every particular without alteration or enlargement or any change
whatever. Note Certificate Number (if applicable):



     Principal amount to be repurchased (if less than all, must be $1,000 or whole multiples
thereof):



     Social Security or Other Taxpayer Identification Number:



	 	 	 
	Dated:
	 	 
	 
	 	 
	 

	 	 
	 

	 	 
	 

	 	 
	 

	 	 
	 

	 	Signature(s)
	 
	 	 
	 

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

	 	 
	 

	 	 
	 

	 	Signature Guarantee






A-14 









 





ASSIGNMENT




      For
value received                
                 
         hereby sell(s) assign(s) and transfer(s) unto 
          
            
(Please
insert name and social security or other Taxpayer Identification Number of assignee) the within
Note (Certificate No.                     ), and hereby irrevocably constitutes and appoints the foregoing as
agent(s), with full power of substitution in the premises, to transfer said Note on the Note
Register.



     [FOR
INCLUSION ONLY IF THIS NOTE BEARS AN AFFILIATE LEGEND—] In connection with any transfer of
the Note evidenced by this certificate, the undersigned confirms that such Note is being
transferred: (check one)



	 	 	 	 	 	 	 	 	 
	 

	 	 	(1	)	 	o
	 	To GLG Partners, Inc. or a Subsidiary of GLG Partners, Inc.; or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(2	)	 	o
	 	Pursuant to a registration statement that has become effective under the
Securities Act of 1933, as amended (the “Securities Act”), and continues to be
effective.
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(3	)	 	o
	 	Pursuant to an exemption from registration provided by Rule 144 under the
Securities Act.
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(4	)	 	o
	 	In a private transaction exempt from or not subject to the registration
requirements of the Securities Act to Person(s) who agree to be bound by the
restrictions on transfer set forth in the Affiliate Legend.






     [FOR
INCLUSION ONLY IF THIS NOTE BEARS A RULE 144A NOTE LEGEND—] In connection with any
transfer of the Note evidenced by this certificate, the undersigned confirms that such Note is
being transferred: (check one)



	 	 	 	 	 	 	 	 	 
	 

	 	 	(1	)	 	o
	 	To GLG Partners, Inc. or a Subsidiary of GLG Partners, Inc.; or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(2	)	 	o
	 	Pursuant to a registration statement that has become effective under the
Securities Act of 1933, as amended (the “Securities Act”), and continues to be
effective.
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(3	)	 	o
	 	To a “qualified institutional buyer” in compliance with Rule 144A under the
Securities Act.
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(4	)	 	o
	 	To an accredited investor that is acquiring the Note for its own account, in a
minimum principal amount of $250,000, for investment purposes and not with a view to or
for offer or sale in connection with any distribution in violation of the Securities
Act.
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(5	)	 	o
	 	Pursuant to an exemption from registration provided by Rule 144 under the
Securities Act.






A-15 









 





     
[FOR INCLUSION ONLY IF THIS NOTE BEARS A REGULATION S NOTE LEGEND—]In connection with any
transfer of the Note evidenced by this certificate, the undersigned confirms that such Note is
being transferred: (check one)



	 	 	 	 	 	 	 	 	 
	 

	 	 	(1	)	 	o
	 	To GLG Partners, Inc. or a Subsidiary of GLG Partners, Inc.; or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(2	)	 	o
	 	Pursuant to a registration statement that has become effective under the
Securities Act of 1933, as amended (the “Securities Act”), and continues to be
effective.
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(3	)	 	o
	 	Outside the United States in an offshore transaction in compliance with
Regulation Sunder the Securities Act.
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(4	)	 	o
	 	Pursuant to an exemption from registration provided by Rule 144 under the
Securities Act.






      Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes
evidenced by this certificate in the name of any person other than the registered holder thereof;
provided, however, that the Trustee may require, prior to registering any such transfer of the
Note, such certifications and other information, including legal opinions, as the Company has
reasonably requested in writing, by delivery to the Trustee of a standing letter of instruction or
otherwise, to confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act of 1933. For a
transfer in which any box other than box 1 or box 2 applies, the Trustee shall not register such
transfer until the Company has confirmed to the Trustee that it has received all such certificates,
other information and/or legal opinions as it has requested.



	 	 	 
	Dated:
	 	 
	 
	 	 
	 

	 	 
	 

	 	 
	 

	 	 
	 

	 	 
	 

	 	Signature(s)
	 
	 	 
	 

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

	 	 
	 

	 	 
	 

	 	Signature Guarantee






A-16 









 





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



A-17 









 





[Include Schedule only for a Global Note]




SCHEDULE OF INCREASES OR DECREASES IN NOTE



The initial principal amount of this Global Note is [     ] DOLLARS ($[     ]). The following
increases or decreases in part of this Note have been made:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Principal Amount of	 	 	 	 
	 	 	Amount of Increase	 	 	Amount of Decrease	 	 	this Note following	 	 	Signature of	 
	 	 	in Principal Amount	 	 	in Principal Amount	 	 	such Increase or	 	 	Authorized Officer or	 
	Date:	 	of this Note	 	 	of this Note	 	 	Decrease	 	 	Trustee	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





A-18 









 





EXHIBIT B




FORM OF CERTIFICATION FOR TRANSFER OF AFFILIATE NOTE

FROM AN AFFILIATE OR A TRANSFEREE OF AN AFFILIATE TO A TRANSFEREE

WHO TAKES NOTE WITH AFFILIATE LEGEND




[Date]




The Bank of New York Mellon

101 Barclay Street

New York, New York 10286





			
	Attention:	 	Global Corporate Trust Services (5.00% Dollar-Denominated Convertible

Subordinated Notes due 2014 of GLG Partners, Inc.)






			
	     Re:	 	5.00% Dollar-Denominated Convertible Subordinated Notes due 2014

(the “Notes”) of GLG Partners, Inc. (the “Company”)





Ladies and Gentlemen:




     Reference is hereby made to the Indenture, dated as of May 15, 2009 (as amended and
supplemented from time to time, the “Indenture”), between the Company and The Bank of New York
Mellon, as trustee. Capitalized terms used but not defined herein shall have the meanings given
them in the Indenture.



     This
certificate is delivered to request a transfer of US $___ principal amount of
the Notes (the “Transferred Notes”) in the form of a Definitive Note that is an Affiliate Note to
the undersigned (the “Transferee”).



     Upon transfer, the Transferred Notes should be registered in the name of the new owner as
follows:



	 	 	 	 	 	 	 
	 

	 	  Name:
	 	 
 

	 	[If applicable, add: as nominee for the transferee] 






	 	 	 	 	 	 	 
	 

	 	  Address:
	 	 
 

	 	 






	 	 	 	 	 	 	 
	 

	 	   Taxpayer ID Number:
	 	 
 

	 	 






     The Transferee represents and warrants to you that pursuant to Section 2.05 of the Indenture,
the Transferee hereby agrees to abide by all restrictions contained in the Affiliate Legend and in
the Indenture, and acknowledges that the Affiliate Note delivered to the Transferee will bear the
Affiliate Legend, until such time as it is removed in accordance with the terms of the Indenture.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.



     You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.



B-1









 





	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 	 	[Name of Transferee]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
 

	 	 






	 	 	 	 	 
	 

	 	  

     Authorized
Signature
	 	 





B-2









 





EXHIBIT C




FORM OF CERTIFICATION

FOR TRANSFER PURSUANT TO RULE 144




[Date]




The Bank of New York Mellon

101 Barclay Street

New York, New York 10286





			
	Attention:	 	Global Corporate Trust Services (5.00% Dollar-Denominated Convertible

Subordinated Notes due 2014 of GLG Partners, Inc.)






			
	     Re:	 	5.00% Dollar-Denominated Convertible Subordinated Notes due 2014

(the “Notes”) of GLG Partners, Inc. (the “Company”)





Ladies and Gentlemen:




     Reference is hereby made to the Indenture, dated as of May 15, 2009 (as amended and
supplemented from time to time, the “Indenture”), between the Company and The Bank of New York
Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given
them in the Indenture.



     In connection with our proposed sale of $                                         aggregate principal amount of the
Notes [in the case of a transfer of an interest in a 144A Global Note: which represent an interest
in a 144A Global Note beneficially owned by] [in the case of a transfer of an Affiliate Note: held
in the name of                                         ] by the undersigned (the “Transferor”), the undersigned hereby
confirms that such sale has been effected pursuant to and in accordance with Rule 144 under the
Securities Act of 1933, as amended.



     You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	[Name of Transferor]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
 

	 	 






	 	 	 	 	 
	 

	 	  

Authorized
Signature
	 	 






C-1