exv4w1






Exhibit 4.1




 






CONSECO, INC.




ISSUER




 






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




TRUSTEE




 






INDENTURE




Dated as of October 16, 2009




 






7.0% CONVERTIBLE SENIOR DEBENTURES DUE 2016




 







 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1

Definitions and Other Provisions of General Application
	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	2	 
	Section 1.02. Incorporation by Reference of Trust Indenture Act
	 	 	18	 
	Section 1.03. Notices, Etc. to the Trustee and Company
	 	 	18	 
	Section 1.04. Conflict With Trust Indenture Act
	 	 	19	 
	Section 1.05. Effect of Headings and Table of Contents
	 	 	19	 
	 
	 	 	 	 
	ARTICLE 2

Debenture Forms
	 
	 	 	 	 
	Section 2.01. Form Generally
	 	 	19	 
	Section 2.02. Form of Debenture
	 	 	19	 
	Section 2.03. Form of Notice of Conversion
	 	 	27	 
	Section 2.04. Form of Assignment
	 	 	28	 
	Section 2.05. Mutilated, Destroyed, Lost or Stolen Debentures
	 	 	30	 
	Section 2.06. Execution, Authentication and Delivery of Debentures; Issuable in Series; Terms of Particular Series
	 	 	31	 
	Section 2.07. Exchange and Registration of Transfer of Debentures; Restrictions on Transfer; Depositary
	 	 	33	 
	 
	 	 	 	 
	ARTICLE 3

The Debentures

	 
	 	 	 	 
	Section 3.01. Title and Terms
	 	 	39	 
	Section 3.02. Denominations
	 	 	40	 
	Section 3.03. Global Debentures; Non-Global Debentures; Book-entry Provisions
	 	 	40	 
	Section 3.04. Repurchase and Cancellation
	 	 	43	 
	Section 3.05. Cancellation of Debentures Paid, Etc
	 	 	43	 
	Section 3.06. CUSIP Numbers
	 	 	43	 
	Section 3.07. Persons Deemed Owners
	 	 	44	 
	Section 3.08. Special Record Date
	 	 	44	 
	 
	 	 	 	 
	ARTICLE 4

Particular Covenants of the Company
	 
	 	 	 	 
	Section 4.01. Payment of Principal and Interest
	 	 	45	 
	Section 4.02. Maintenance of Office or Agency
	 	 	45	 
	Section 4.03. Appointments to Fill Vacancies in Trustee’s Office
	 	 	46	 
	Section 4.04. Provisions as to Paying Agent
	 	 	46	 






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	 	 	Page	 
	Section 4.05. Existence
	 	 	47	 
	Section 4.06. Reports to Holders
	 	 	47	 
	Section 4.07. Compliance Certificate; Statements as to Defaults
	 	 	48	 
	Section 4.08. Further Instruments and Acts
	 	 	48	 
	 
	 	 	 	 
	ARTICLE 5

Remedies
	 
	 	 	 	 
	Section 5.01. Events of Default
	 	 	49	 
	Section 5.02. Acceleration of Maturity; Rescission and Annulment
	 	 	51	 
	Section 5.03. Unconditional Right of Holders to Receive Principal and Interest and to Convert their Debentures
	 	 	52	 
	Section 5.04. Waiver of Past Defaults
	 	 	52	 
	Section 5.05. Waiver of Stay, Usury or Extension Laws
	 	 	52	 
	Section 5.06. Conditions to Enforcement
	 	 	52	 
	Section 5.07. Control by Holders
	 	 	53	 
	Section 5.08. Notice of Change of Control
	 	 	53	 
	Section 5.09. Undertaking for Costs
	 	 	53	 
	Section 5.10. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	54	 
	Section 5.11. Trustee May File Proofs of Claim
	 	 	54	 
	 
	 	 	 	 
	
ARTICLE 6

Concerning the Trustee
	 
	 	 	 	 
	Section 6.01. Duties and Responsibilities of Trustee
	 	 	55	 
	Section 6.02. Reliance on Documents, Opinions, Etc
	 	 	57	 
	Section 6.03. No Responsibility for Recitals, Etc
	 	 	59	 
	Section 6.04. Trustee, Paying Agents or Registrar May Own Debentures
	 	 	59	 
	Section 6.05. Monies to be Held in Trust
	 	 	59	 
	Section 6.06. Compensation and Expenses of Trustee
	 	 	59	 
	Section 6.07. Officers’ Certificate as Evidence
	 	 	60	 
	Section 6.08. Conflicting Interests of Trustee
	 	 	61	 
	Section 6.09. Eligibility of Trustee
	 	 	61	 
	Section 6.10. Resignation or Removal of Trustee
	 	 	61	 
	Section 6.11. Acceptance by Successor Trustee
	 	 	62	 
	Section 6.12. Succession by Merger, Etc
	 	 	63	 
	Section 6.13. Limitation on Rights of Trustee as Creditor
	 	 	64	 
	Section 6.14. Trustee’s Application for Instructions from the Company
	 	 	64	 
	 
	 	 	 	 
	
ARTICLE 7

Concerning the Holders
	 
	 	 	 	 
	Section 7.01. Action By Holders
	 	 	64	 
	Section 7.02. Proof of Execution by Holders
	 	 	65	 
	Section 7.03. Revocation of Consents; Future Holders Bound
	 	 	65	 






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	 	 	Page	 
	
ARTICLE 8

Supplemental Indentures
	 
	 	 	 	 
	Section 8.01. Supplemental Indentures Without Consent of Holders of Debentures
	 	 	65	 
	Section 8.02. Supplemental Indentures with Consent of Holders of Debentures
	 	 	67	 
	Section 8.03. Effect of Supplemental Indentures
	 	 	68	 
	Section 8.04. Notation on Debentures
	 	 	68	 
	Section 8.05. Evidence of Compliance of Supplemental Indenture to be Furnished to the Trustee
	 	 	68	 
	Section 8.06. Notice of Supplemental Indenture
	 	 	68	 
	 
	 	 	 	 
	
ARTICLE 9

Holders Lists and Reports by Trustee and Company
	 
	 	 	 	 
	Section 9.01. List of Holders
	 	 	69	 
	Section 9.02. Preservation of Information
	 	 	69	 
	Section 9.03. Reports by Trustee
	 	 	69	 
	 
	 	 	 	 
	
ARTICLE 10

Consolidation, Merger, Sale, Conveyance and Lease
	 
	 	 	 	 
	Section 10.01. Company May Consolidate, Etc. on Certain Terms
	 	 	70	 
	Section 10.02. Successor Corporation to be Substituted
	 	 	70	 
	Section 10.03. Officers’ Certificate and Opinion of Counsel to be Given Trustee
	 	 	71	 
	 
	 	 	 	 
	
ARTICLE 11

Holders’ Meetings
	 
	 	 	 	 
	Section 11.01. Purpose of Meetings
	 	 	71	 
	Section 11.02. Call of Meetings by Trustee
	 	 	72	 
	Section 11.03. Call of Meetings by Company or Holders
	 	 	72	 
	Section 11.04. Qualifications for Voting
	 	 	72	 
	Section 11.05. Regulations
	 	 	72	 
	Section 11.06. Voting
	 	 	73	 
	Section 11.07. No Delay of Rights by Meeting
	 	 	74	 
	 
	 	 	 	 
	
ARTICLE 12

Conversion of Debentures
	 
	 	 	 	 
	Section 12.01. Conversion Privilege and Conversion Rate
	 	 	74	 
	Section 12.02. Exercise of Conversion Privilege
	 	 	76	 
	Section 12.03. Fractions of Shares
	 	 	78	 
	Section 12.04. Adjustment of Conversion Rate
	 	 	78	 
	Section 12.05. Notice of Adjustments of Conversion Rate
	 	 	87	 






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	 	 	Page	 
	Section 12.06. Company to Reserve Common Stock
	 	 	88	 
	Section 12.07. Taxes on Conversions
	 	 	88	 
	Section 12.08. Provision in Case of Effect of Reclassification, Consolidation, Merger or Sale
	 	 	88	 
	Section 12.09. Responsibility of Trustee for Conversion Provisions
	 	 	90	 
	Section 12.10. Right to Set-off Withholding Taxes
	 	 	91	 
	Section 12.11. Termination of Conversion Right
	 	 	91	 
	Section 12.12. Conversion Blockers
	 	 	92	 
	Section 12.13. Registration of Common Stock Issuable upon Conversion of Debentures
	 	 	94	 
	 
	 	 	 	 
	
ARTICLE 13

Discharge
	 
	 	 	 	 
	Section 13.01. Discharge of Liability on Debentures
	 	 	94	 
	Section 13.02. Repayment to Company
	 	 	95	 
	Section 13.03. Reinstatement
	 	 	96	 
	Section 13.04. Officers’ Certificate; Opinion of Counsel
	 	 	96	 
	 
	 	 	 	 
	
ARTICLE 14

[Reserved]
	 
	 	 	 	 
	
ARTICLE 15

Miscellaneous Provisions
	 
	 	 	 	 
	Section 15.01. Termination of Notices to Initial Purchaser
	 	 	96	 
	Section 15.02. Provisions Binding on Company’s Successors
	 	 	97	 
	Section 15.03. Calculations
	 	 	97	 
	Section 15.04. Official Acts by Successor Corporation
	 	 	97	 
	Section 15.05. Addresses for Notices, Etc
	 	 	97	 
	Section 15.06. Governing Law
	 	 	98	 
	Section 15.07. Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee
	 	 	98	 
	Section 15.08. Legal Holidays
	 	 	98	 
	Section 15.09. No Security Interest Created
	 	 	98	 
	Section 15.10. Benefits of Indenture
	 	 	99	 
	Section 15.11. Authenticating Agent
	 	 	99	 
	Section 15.12. Execution in Counterparts
	 	 	100	 
	Section 15.13. Waiver of Jury Trial
	 	 	100	 
	Section 15.14. Force Majeure
	 	 	100	 
	Section 15.15. Severability
	 	 	100	 
	Section 15.16. No Recourse Against Others
	 	 	100	 
	 
	 	 	 	 
	Schedule A
	 	 	A-1	 






iv









 





     INDENTURE, dated as of October 16, 2009, between CONSECO, INC., a corporation duly organized
and existing under the laws of the State of Delaware, having its principal office at 11825 N.
Pennsylvania St., Carmel, Indiana 46032, (herein called the “Company” as more fully set forth in
Section 1.01), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association,
as Trustee hereunder (herein called the “Trustee” as more fully set forth in Section 1.01).



RECITALS OF THE COMPANY




     WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issue of its
7.0% Convertible Senior Debentures due 2016 (hereinafter sometimes called the “Debentures”), in one
or more series in an aggregate principal amount not to exceed $293,000,000, and in order to provide
the terms and conditions upon which the Debentures are to be authenticated, issued and delivered,
the Company has duly authorized the execution and delivery of this Indenture; and



     WHEREAS, the aggregate principal amount of Debentures to be issued by the Company will be
equal to the sum of (x) the aggregate principal amount of the Company’s 3.50% Convertible
Debentures due September 30, 2035 (the “Existing Debentures”) purchased by the Company in the
issuer tender offer it commenced on October 15, 2009 and any subsequent issuer tender offer for the
Existing Debentures that expires before October 5, 2010 (each, a “Tender Offer” and the Business
Day following the date on which the Tender Offer expires, a “Tender Offer Closing Date”), (y) the
aggregate principal amount of Existing Debentures that the Issuer is required by holders thereof to
repurchase on September 30, 2010 (such date, the “Put Right Closing Date”) pursuant to the terms of
the Existing Debentures and (z) the aggregate principal amount of Existing Debentures redeemed by
the Company on October 5, 2010 (such date, the “Redemption Closing Date” and collectively with the
Tender Offer Closing Date(s) and the Put Right Closing Date, the “Closing Dates” and individually,
a “Closing Date”) pursuant to the terms of the Existing Debentures; and



     WHEREAS, the Debentures will be issued from time to time on each Closing Date, with each
issuance constituting a separate series of Debentures under this Indenture; and



     WHEREAS, the Debentures, the certificate of authentication to be borne by the Debentures, the
Form of Assignment and the Form of Notice of Conversion are to be substantially in the forms
hereinafter provided for; and



     WHEREAS, all acts and things necessary to make the Debentures, when executed by the Company
and authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in
this Indenture provided, the valid, binding and legal obligations of the Company, and to constitute
these presents a valid and legally binding agreement according to its terms, have been done and



 









 







performed, and the execution of this Indenture and the issue hereunder of the Debentures have
in all respects been duly authorized.



NOW, THEREFORE, THIS INDENTURE WITNESSETH:




     For and in consideration of the premises and the purchase of the Debentures by the Holders (as
defined below) thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Debentures, as follows:



ARTICLE 1

Definitions and Other Provisions of General Application




     Section 1.01. Definitions.



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



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



     (b) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles in the United States, and, except as
otherwise herein expressly provided, the term “generally accepted accounting principles” with
respect to any computation required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and



     (c) all other terms used in this Indenture which are defined in the Trust Indenture Act or
which are by reference therein defined in the Securities Act (except as herein otherwise expressly
provided or unless the context otherwise requires) shall have the 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. The words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.



     “Act,” when used with respect to any Holder of a Debenture, has the meaning specified in
Section 7.01.



     “Additional Shares” has the meaning specified in Section 12.01(c).



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



2









 







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



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



     “American Depositary Receipt” means a negotiable security issued by an entity located in the
United States that represents an American Depositary Share.



     “American Depositary Share” means an interest in a non-United States company’s publicly traded
equity.



     “Annual Statement” means the annual statutory financial statement of any Insurance Subsidiary
required to the filed with the insurance commissioner (or similar authority) of its jurisdiction of
incorporation, which statement shall be in the form required by such Insurance Subsidiary’s
jurisdiction of incorporation or, if no specific form is so required, in the form of financial
statements permitted by such insurance commissioner (or such similar authority) to be used for
filing annual statutory financial statements and shall contain the type of information permitted or
required by such insurance commissioner (or such similar authority) to be disclosed therein,
together with all exhibits or schedules filed therewith.



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



     “Authentication Order” has the meaning specified in Section 2.06(b).



     “Automatic Exchange” shall have the meaning specified in Section 2.07(f).



     “Automatic Exchange Date” shall have the meaning specified in Section 2.07(f).



     “Board of Directors” means the Board of Directors of the Company or a committee of such Board
of Directors duly authorized to act on behalf of such Board of Directors.



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



3









 





     “Business Day” means any weekday that is not a day on which the banking institutions in The
City of New York or Chicago, Illinois are authorized or obligated to close.



     “Capital Stock” means, for any entity, any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
equity of such entity, including any preferred stock, but excluding any debt securities convertible
into such equity.



     “Capitalized Lease Liabilities” means, with respect to any Person, all monetary obligations
of such Person under any leasing or similar arrangement that, in accordance with GAAP, would be
classified as a capitalized lease, and, for purposes of this Indenture, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance with GAAP, and the
stated maturity thereof shall be the date of the last payment of rent or any other amount due under
such lease prior to the first date upon which such lease may be terminated by the lessee without
payment of a penalty.



     “Change of Control” means, with respect to the Company, on and after the Commitment Date:



     (a) any acquisition, directly or indirectly, by any Person, or two or more Persons acting in
concert, of beneficial ownership of 50% or more of the of the outstanding shares of the Company’s
Voting Stock, in each case other than any transaction:




	 	(i)	 	involving a merger or consolidation that does not result
in a reclassification, conversion, exchange or cancellation of outstanding
Common Stock; or
	 
	 	(ii)	 	pursuant to which the holders of the Company’s Common
Stock immediately prior to the transaction have the entitlement to exercise,
directly or indirectly, 50% or more of the total voting power of all shares
of Capital Stock entitled to vote generally in the election of directors of
the continuing or surviving corporation immediately after the transaction,
with such holders’ proportional voting power immediately after the
transaction vis-à-vis each other with respect to the securities they receive
in such transaction being in substantially the same proportions as their
respective voting power vis-à-vis each other with respect to the shares of
Common Stock that they held immediately before such transaction; or
	 
	 	(iii)	 	that is effected solely to change the Company’s
jurisdiction of incorporation and results in a reclassification, conversion
or exchange of outstanding shares of the Company’s




4









 






	 	 	 	Common Stock solely into shares of common stock of the surviving entity; or





     (b) during any period of 12 consecutive calendar months, commencing on the Commitment Date,
the ceasing of those individuals (the “Continuing Directors”) who (i) were a member of the Board of
Directors on the first day of each such period or (ii) who subsequently became a member of the
Board of Directors and whose election or initial nomination for election subsequent to that date
was approved by a majority of the Continuing Directors then on the Board of Directors, to
constitute a majority of the Board of Directors.



     For purposes of this definition, (i) whether a Person is a “beneficial owner” will be
determined in accordance with Rule 13d-3 under the Exchange Act, (ii) “Person” includes any
syndicate or group that would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act
and (iii) the phrase “or a committee of such board duly authorized to act for it hereunder” of the
definition of Board of Directors shall be disregarded.



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



     “Closing Date” has the meaning ascribed to it in the second paragraph under the caption
“Recitals of the Company.”



     “Closing Sale Price” of the Common Stock on any date of determination means:



     (a) the closing sale price per share of the Common Stock (or if no closing sale price is
reported, the average of the closing bid and closing ask prices or, if more than one in either
case, the average of the average closing bid and the average closing ask prices) as reported by the
NYSE on such date; or



     (b) if the Common Stock is not listed on the NYSE on such date, the closing sale price per
share of Common Stock (or if no closing sale price is reported, the average of the closing bid and
closing ask prices or, if more than one in either case, the average of the average closing bid and
the average closing ask prices) as reported in composite transactions for the principal U.S.
national or regional securities exchange on which the Common Stock is traded on such date; or



     (c) if the Common Stock is not listed on a U.S. national or regional securities exchange, the
last quoted bid price for the Common Stock on such date in the over-the-counter market as reported
by Pink OTC Markets Inc. or other similar organization; or



     (d) if the Common Stock is not so quoted by Pink OTC Markets Inc. or any similar organization
on such date, as determined by a nationally recognized securities firm retained by the Company for
this purpose.




5











 





     The Closing Sale Price will be determined without reference to early hours, after hours or
extended market trading.



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



     “Commitment Date” means the date of this Indenture.



     “Common Stock” means the Common Stock, par value $0.01 per share, of the Company authorized at
the date of this instrument as originally executed or as such stock may be constituted from time to
time. Subject to the provisions of Section 12.08, shares issuable upon conversion of Debentures
shall include only shares of Common Stock or shares of any class or classes of common stock
resulting from any reclassification or reclassifications thereof; provided, however, that if at any
time there shall be more than one such resulting class, the shares so issuable on conversion of
Debentures shall include shares of all such classes, and the shares of each such class then so
issuable shall be substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.



     “common stock” includes any stock of any class of Capital Stock which has 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 issuer thereof and which is not subject to redemption
by the issuer thereof.



     “Company” means Conseco, Inc., a Delaware corporation, and subject to the provisions of
Article 10, shall include its successors and assigns (including any Successor Company) and, to the
extent the obligations hereunder shall be obligations of more than one entity pursuant to Section
12.08, shall include each of such entities.



     “Company Order” means a written request or order signed in the name of the Company by (a) its
Chief Executive Officer or any of its Vice Presidents, and by (b) its Chief Financial Officer, its
Treasurer, its Secretary or any of its Assistant Secretaries, and delivered to the Trustee.



     “Contingent Obligation” means, without duplication, any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is contingently liable upon (by
direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply
funds to, or otherwise invest in, a debtor, or otherwise to assure a creditor against loss) the
debt, obligation or other liability of any other Person (other than by endorsements of instruments
in the course of collection or indemnities under contracts entered into in the ordinary course of
business and not in respect of Indebtedness or the issuance of Capital Stock), or guarantees the
payment of dividends or other distributions upon the shares of any other Person; provided that the
obligations of any Person under Reinsurance Agreements or in connection with Investments of



6









 







Insurance Subsidiaries permitted by the applicable Department shall not be deemed Contingent
Obligations of such Person. The amount of any Contingent Obligation of any Person shall (subject
to any limitation set forth therein) be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of which such Contingent
Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof as determined by such Person in good faith.



     “Continuing Directors” has the meaning specified in the definition of Change of Control.



     “Conversion Agent” means any Person authorized by the Company to convert Debentures in
accordance with Article 12. The Company has initially appointed the Trustee as its Conversion Agent
pursuant to Section 4.02.



     “Conversion Blocker” has the meaning specified in Section 12.12(e).



     “Conversion Commencement Date” means June 30, 2013.



     “Conversion Date” has the meaning specified in Section 12.02(b).



     “Conversion Obligation” has the meaning specified in Section 12.01(a).



     “Conversion Price” means at any time the amount equal to $1,000 divided by the then current
Conversion Rate.



     “Conversion Rate” has the meaning specified in Section 12.01(a).



     “Conversion Termination Date” has the meaning specified in Section 12.11(a).



     “Conversion Termination Notice” has the meaning specified in Section 12.11(a).



     “Corporate Trust Office” means the office of the Trustee at which at any particular time its
corporate trust business in Chicago, Illinois shall be principally administered, which office as of
the date of this instrument is located at 2 N. LaSalle Street, Suite 1020, Chicago, Illinois 60602,
except that with respect to maintenance of the Debenture Register, delivery of any notice,
instruction, demand, or other documents to the Trustee, presentation of Debentures for payment, for
registration of transfer or exchange, or for conversion, such term shall mean the office or agency
of the Trustee at which at any particular time its corporate agency business shall be conducted,
which office at the date of this instrument is located at 101 Barclay Street, New York, New York
10286; Attention: Corporate Trust Division — Corporate Finance Unit, or, in the case of any of such
offices or agency, such other address as the Trustee may designate from time to time by notice to
the Holders and the Company.



7









 





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



     “Custodian” means The Bank of New York Mellon Trust Company, N.A., as custodian for The
Depository Trust Company, with respect to the Global Debentures, or any successor entity thereto.



     “Debenture Register” shall have the meaning specified in Section 2.07(a).



     “Debenture Registrar” shall have the meaning specified in Section 2.07(a).



     “Debentures” has the meaning ascribed to it in the first paragraph under the caption “Recitals
of the Company” and includes all series of Debentures issued under this Indenture.



     “Default” means any event which is, or after notice or lapse of time or both would become, an
Event of Default pursuant to Section 5.01.



     “Defaulted Interest” has the meaning specified in Section 3.08.



     “Department” means, with respect to any Insurance Subsidiary, the Governmental Authority of
such Insurance Subsidiary’s state of domicile with which such Insurance Subsidiary is required to
file its Annual Statement.



     “Depositary” means with respect to the Debentures issuable or issued in whole or in part in
global form, the Person designated as Depositary by the Company pursuant to Section 3.03, unless
and until a successor Depositary shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a
Depositary hereunder. Initially, the Depositary shall be DTC.



     “Distributed Property” has the meaning specified in Section 12.04(c).



     “Dollar,” “U.S. $” or “$” means a dollar or other equivalent unit in such coin or currency of
the United States as at the time shall be legal tender for the payment of public and private debts.



     “DTC” means The Depository Trust Company, a New York corporation, or any successor.



     “EDGAR” means the Electronic Data Gathering, Analysis and Retrieval system (or any successor
system) by which companies file forms with the SEC.



     “Effective Date” means the date on which a Make Whole Adjustment Event occurs or becomes
effective.



     “Event of Default” has the meaning specified in Section 5.01.



8









 





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



     “Ex-Dividend Date” means, with respect to any issuance, dividend or distribution on the Common
Stock or any other equity security, the first date on which the shares of Common Stock or such
other equity security trade on the applicable exchange or in the applicable market, regular way,
without the right to receive such issuance, dividend or distribution.



     “Existing Debentures” has the meaning ascribed to it in the second paragraph under the caption
“Recitals of the Company.”



     “Existing Directors” means those individuals who (i) were a member of the Board of Directors
on the Commitment Date or (ii) who subsequently became a member of the Board of Directors and whose
election or initial nomination for election subsequent to the Commitment Date was approved by a
majority of the Company’s directors then still in office, either who were directors on the
Commitment Date or whose election or nomination for election was previously so approved.



     For purposes of this definition, the phrase “or a committee of such board duly authorized to
act for it hereunder” of the definition of Board of Directors shall be disregarded.



     “Expiration Date” has the meaning specified in Section 12.04(e).



     “Expiration Time” has the meaning specified in Section 12.04(e).



     “Fair Market Value” means, for purposes of Section 12.04, the amount which a willing buyer
would pay a willing seller in an arm’s-length transaction as reasonably determined in good faith by
the Board of Directors in a commercially reasonable manner.



     “GAAP” means generally accepted accounting principles set forth from time to time in the
opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and authority within the
U.S. accounting profession), that are applicable to the circumstances as of the date of
determination.



     “Global Debenture” means a Debenture that is registered in the Debenture Register in the name
of a Depositary or a nominee thereof.



     “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any
entity exercising executive, legislative, judicial



9









 







or regulatory functions of or pertaining to
government and any corporation or
other entity owned or controlled, through stock or capital ownership or otherwise, by any of
the foregoing, including any board of insurance, insurance department or insurance commissioner.



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



     “HSR Act” has the meaning specified in Section 12.12(b).



     “HSR Conversion Blocker” has the meaning specified in Section 12.12(b).



     “HSR Filing” has the meaning specified in Section 12.12(b).



     “Indebtedness” means, with respect to any Person, without duplication: (a) all obligations of
such Person for borrowed money or in respect of loans or advances; (b) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments; (c) all obligations in
respect of letters of credit, whether or not drawn, and bankers’ acceptances and letters of
guaranty issued for the account or upon the application or request of such Person; (d) all
Capitalized Lease Liabilities of such Person; (e) the liabilities (if any) of such Person in
respect of Swap Contracts as determined by reference to the Swap Termination Value thereof; (f) all
obligations of such Person to pay the deferred purchase price of property or services that are
included as liabilities in accordance with GAAP (other than accrued expenses incurred and trade
accounts payable in each case in the ordinary course of business) and all obligations secured by a
Lien on property owned or being purchased by such Person, but only to the extent of the lesser of
the obligations secured or the value of the property to which such Lien is attached (including
obligations arising under conditional sales or other title retention agreements); (g) any
obligations of a partnership of the kind referred to in clauses (a) through (f) above or clause (h)
below in which such Person is a general partner; and (h) all Contingent Obligations of such Person
in connection with Indebtedness or obligations of others of the kinds referred to in clauses (a)
through (h) above.



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



     “Initial Purchaser” means Morgan Stanley & Co. Incorporated.



     “Insolvency Proceeding” means , with respect to any Person, (a) any case, action or proceeding
with respect to such Person before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, conservation, rehabilitation, receivership,
dissolution, winding-up or relief of debtors or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors or other similar arrangement in



10









 







respect of its creditors generally or any substantial portion of its creditors, in any
case, undertaken under U.S. Federal, state or foreign law, including title 11 of the United
States Code.



     “Insurance Blocker Notice” has the meaning specified in Section 12.12(e).



     “Insurance Conversion Blocker” has the meaning specified in Section 12.12(e).



     “Insurance Filing” has the meaning specified in Section 12.12(e).



     “Insurance Regulatory Approvals” has the meaning specified in Section 12.12(e).



     “Insurance Subsidiary” means any Subsidiary that is required to be licensed as an insurer or
reinsurer.



     “Interest Payment Date” means, with respect to each series of Debentures, June 30 and December
30 of each year, beginning on the first Interest Payment Date immediately succeeding the Issue Date
of such series of Debentures; provided, however, that if the Issue Date for such series of
Debentures occurs after the close of business on the Regular Record Date for such Interest Payment
Date, the first Interest Payment Date will instead be the second Interest Payment Date immediately
succeeding the Issue Date of such series.



     “Investment” means any advance, loan, extension of credit (by way of guaranty or otherwise) or
capital contribution to, or purchase (including purchases financed with equity) of any Capital
Stock, bonds, notes, debentures or other debt securities of, or any other investment in, any
Person.



     “Issue Date” means, with respect to each series of Debentures, the issuance date of such
series. Each Issue Date shall correspond to a Closing Date.



     “Lien” means any security interest, mortgage, deed of trust, pledge, hypothecation,
assignment, charge or deposit arrangement, encumbrance, lien (statutory or other) or preferential
arrangement of any kind or nature whatsoever in respect of any property (including those created
by, arising under or evidenced by, any conditional sale or other title retention agreement, the
interest of a lessor under a capital lease or any financing lease having substantially the same
economic effect as any of the foregoing) and any contingent or other agreement to provide any of
the foregoing, but not including the interest of a lessor under the operating lease or a licensor
under a license that does not otherwise secure an obligation.



     “Make Whole Adjustment Event” will be deemed to have occurred at any time on or after the
Commitment Date that any of the following occurs:



11









 






     (a) a Change of Control pursuant to paragraph (a) of the definition thereof (which
shall be determined without regard to the exception set forth in paragraph (a)(ii) of such
definition) occurs; or




     (b) the Company conveys, sells, transfers, disposes of or leases all or substantially
all of its consolidated assets to another Person in one transaction or a series of
transactions; or




     (c) the Company’s Existing Directors cease to constitute a majority of its Board of
Directors; or




     (d) shares of Common Stock (or shares of common stock, American Depositary Receipts
or American Depositary Shares into which the Debentures are convertible pursuant to the
terms of this Indenture), cease to be listed for trading on any of the NYSE, the NASDAQ
Global Market or the NASDAQ Global Select Market (or any of their respective successors);
or




     (e) holders of Common Stock approve any plan or proposal for the Company’s
liquidation or dissolution or there is a plan in effect for the Company’s liquidation or
dissolution.



     “Market Disruption Event” means (i) a failure by the principal market on which the Common
Stock is listed or approved for trading to open for trading during its regular trading session or
(ii) the occurrence or existence for more than one half-hour period in the aggregate on any
Scheduled Trading Day of any suspension or limitation imposed on trading (by reason of movements in
price exceeding limits permitted by the principal market on which the Common Stock is listed or
approved for trading or otherwise) in the Common Stock or in any options, contracts or futures
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,” when used with respect to any Debentures, means the date on which the principal of
such Debentures becomes due and payable as therein or herein provided, whether on the Maturity
Date, by declaration of acceleration or otherwise.



     “Maturity Date” means December 30, 2016.



     “Notice of Conversion” has the meaning specified in Section 12.02(b).



     “NYSE” means the New York Stock Exchange.



     “Offering Memorandum” means the final offering memorandum dated October 14, 2009 with respect
to the offering and sale of the Debentures.



12









 





     “Officers’ Certificate” means a certificate signed by (a) the Chief Executive Officer or any
Vice President and by (b) the Chief Financial Officer, the Treasurer, the Secretary or any
Assistant Secretary of the Company, and delivered to the Trustee. One of the officers signing an
Officers’ Certificate given pursuant to Section 4.07 shall be the principal executive, financial or
accounting officer 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, that is delivered to the Trustee. Each such opinion shall
include the statements in Section 15.07 if and to the extent required by the provisions of such
Section.



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




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




     (b) Debentures for the payment of which money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Debentures;




     (c) Debentures in lieu of which, or in substitution for which, other Debentures have
been authenticated and delivered pursuant to this Indenture; and




     (d) Debentures converted into Common Stock pursuant to Article 12;


provided, however, that, in determining whether the Holders of the requisite principal amount of
Outstanding Debentures are present at a meeting of Holders of Debentures for quorum purposes or
have given any request, demand, authorization, direction, notice, consent or waiver hereunder,
Debentures owned by the Company or any other obligor upon the Debentures or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any such determination as to
the presence of a quorum or upon any such request, demand, authorization, direction, notice,
consent or waiver, only Debentures that a Responsible Officer of the Trustee has been notified in
writing to be so owned shall be so disregarded. Debentures so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee is not the Company or any other obligor upon
the Debentures or any Affiliate of the Company or such other obligor, and the Trustee shall be
protected in relying upon an Officers’ Certificate to such effect.




13









 








     “Paying Agent” means any Person authorized by the Company to pay the principal of or interest
on any Debentures on behalf of the Company and, except as otherwise specifically set forth herein,
such term shall include the Company if it shall act as its own Paying Agent. The Company has
initially appointed the Trustee as its Paying Agent pursuant to Section 4.02.



     “Person” means any individual, corporation, limited liability company, partnership, business
trust, joint stock company, trust, unincorporated association, joint venture or Governmental
Authority or other entity of whatever nature.



     “Place of Conversion” has the meaning specified in Section 3.01.



     “Place of Payment” has the meaning specified in Section 3.01.



     “Predecessor Debenture” of any particular Debenture means every previous Debenture evidencing
all or a portion of the same debt as that evidenced by such particular Debenture; and, for the
purposes of this definition, any Debenture authenticated and delivered under Section 2.05 of this
Indenture in exchange for or in lieu of a mutilated, destroyed, lost or stolen Debenture shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Debenture.



     “Put Right Closing Date” has the meaning ascribed to it in the second paragraph under the
caption “Recitals of the Company.”



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



     “Record Date” means any Regular Record Date or Special Record Date.



     “Redemption Closing Date” has the meaning ascribed to it in the second paragraph under the
caption “Recitals of the Company.”



     “Reference Property” has the meaning specified in Section 12.08(b).



     “Regular Record Date” for interest payable in respect of any Debenture on any Interest Payment
Date means the close of business on June 15 or December 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.



     “Reinsurance Agreements” means any agreement, contract, treaty, certificate or other
arrangement by which any Insurance Subsidiary agrees to transfer or cede to another insurer all or
part of the liability assumed or assets held by it under one or more insurance, annuity,
reinsurance or retrocession policies, agreements, contracts, treaties, certificates or similar
arrangements. Reinsurance Agreements shall include, but not be limited to, any agreement, contract,
treaty, certificate or other arrangement that is treated as such by the applicable Department.



14









 





     “Reorganization Event” has the meaning specified in Section 12.08.



     “Resale Restriction Termination Date” shall have the meaning specified in Section 2.07(b).



     “Responsible Officer” when used with respect to the Trustee, shall mean an officer of the
Trustee in the Corporate Trust Office, having direct responsibility for the administration of this
Indenture, and also, with respect to Section 6.01(b) and the second sentence of Section 6.01, shall
also include any other officer of the Trustee to whom any corporate trust matter is referred
because of such officer’s knowledge of and familiarity with the particular subject.



     “Restricted Global Debenture” shall mean a Global Debenture that is a Restricted Security.



     “Restricted Ownership Percentage” has the meaning specified in Section 12.12(d).



     “Restricted Securities” has the meaning specified in Section 2.07(b).



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



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



     “SEC” means the Securities and Exchange Commission.



     “Section 16 Conversion Blocker” has the meaning specified in Section 12.12(d).



     “Section 382 Conversion Blocker” has the meaning specified in Section 12.12(a).



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



     “series” means each series of Debentures issued in accordance with Section 2.06 from time to
time on each Issue Date.



     “Significant Subsidiary” means, with respect to any Person, a Subsidiary of such Person that
would constitute a “significant subsidiary” as such term is defined under Rule 1-02(w) of
Regulation S-X under the Securities Act and the Exchange Act.



     “Special Record Date” has the meaning specified in Section 3.08(a).



15









 





     “Spin-Off” has the meaning specified in Section 12.04(c).



     “Stock Price” means the price paid (or deemed paid) per share of Common Stock in connection
with a Make Whole Adjustment Event, which shall be equal to (i) if a holder of Common Stock
receives only cash (in a single per share amount, other than with respect to appraisal or similar
rights) in such Make Whole Adjustment Event described in clauses (a) or (b) of the definition
thereof, the cash amount paid per share of Common Stock and (ii) in all other cases, the average of
the Closing Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on
the Trading Day immediately preceding the Effective Date.



     “Subsidiary” means a corporation more than 50% of the outstanding Voting Stock of which is
owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries.



     “Successor Company” has the meaning specified in Section 10.01(a).



     “Successor Debenture” of any particular Debenture means every Debenture issued after, and
evidencing all or a portion of the same debt as that evidenced by, such particular Debenture; and,
for the purposes of this definition, any Debenture authenticated and delivered under Section 2.05
of this Indenture in exchange for or in lieu of a mutilated, destroyed, lost or stolen Debenture
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Debenture.



     “Swap Contract” means any agreement, relating to any transaction that is a rate swap, basis
swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap or
option, bond, note or bill option, interest rate option, forward foreign exchange transaction, cap,
collar or floor transaction, currency swap, cross-currency rate swap, swaption, currency option or
any other similar transaction (including any option to enter into any of the foregoing) or any
combination of the foregoing, and any master agreement relating to or governing any or all of the
foregoing.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking
into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s) and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined by the Company based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in such Swap Contracts.



     “Tax Conversion Blocker” has the meaning specified in Section 12.12(c).



16









 





     “Tender Offer” has the meaning ascribed to it in the second paragraph under the caption
“Recitals of the Company.”



     “Tender Offer Closing Date” has the meaning ascribed to it in the second paragraph under the
caption “Recitals of the Company.”



     “Trading Day” means a day during which (i) there is no Market Disruption Event and (ii)
trading in the Common Stock generally occurs on the NYSE, or if the Common Stock is not listed on
the NYSE, then on the NASDAQ Global Select Market, the NASDAQ Global Market or the principal other
national or regional securities exchange on which the Common Stock is then traded or, if the Common
Stock is not listed or approved for trading on the NASDAQ Global Select Market, the NASDAQ Global
Market or another national or regional securities exchange, on the principal market on which the
Common Stock is then traded (including Pink OTC Markets Inc. or any similar organization). If the
Common Stock is not so listed or traded, “Trading Day” shall have the same meaning as Business Day.



     “transfer” shall have the meaning specified in Section 2.07(b).



     “Trustee” means The Bank of New York Mellon Trust Company, N.A. 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 serving as successor trustee hereunder.



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, and any reference
herein to the Trust Indenture Act or a particular provision thereof shall mean such Act or
provision, as the case may be, as amended or replaced from time to time or as supplemented from
time to time by rules or regulations adopted by the SEC under or in furtherance of the purposes of
such Act or provision, as the case
may be.



     “Unrestricted Global Debenture” shall mean a Global Debenture that is not a Restricted
Security.



     “Valuation Period” has the meaning specified in Section 12.04(c).



     “Voting Stock” means all classes of stock or other similar interests in the corporation which
ordinarily has or have voting power for the election of directors, or persons performing similar
functions, whether at all times or only so long as no senior class of stock or other interests has
or have such voting power by reason of any contingency.



17









 





     Section 1.02. Incorporation by Reference of Trust Indenture Act.



     This Indenture is subject to the mandatory provisions of the Trust Indenture Act, which are
incorporated by reference in and made a part of this Indenture. The following Trust Indenture Act
terms have the following meanings:



     “indenture securities” means the Debentures.



     “indenture security holder” means a Holder.



     “indenture to be qualified” means this Indenture.



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



     All other terms in this Indenture that are defined by the Trust Indenture Act, defined by it
by reference to another statute or defined by SEC rule have the meanings assigned to them by such
definitions. If any provision hereof limits, qualifies or conflicts with another provision hereof
which is required to be included in this Indenture by the Trust Indenture Act, such required
provision shall control.



     Section 1.03. Notices, Etc. to the Trustee and Company.



     Any request, demand, authorization, direction, notice, consent, election, waiver or other Act
of Holders of Debentures or other document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with,



     (a) the Trustee by any Holder of Debentures or by the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing (which may be via facsimile) to or
with a Responsible Officer of the Trustee and received at its Corporate Trust Office, Attention:
Corporate Administration; or



     (b) the Company by the Trustee or by any Holder of Debentures shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in writing, mailed, first-class
postage prepaid, or telecopied and confirmed by mail, first-class postage prepaid, or delivered by
hand or overnight courier, addressed to the Company at 11825 N. Pennsylvania Street, Carmel,
Indiana 46032, Attention: Treasurer or at any other address previously furnished in writing to the
Trustee by the Company; or



     (c) the Initial Purchaser by the Company, by the Trustee or by any Holder of Debentures shall
be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in
writing, mailed, first-class postage prepaid, or telecopied and confirmed by mail, first-class
postage prepaid, or delivered by hand or overnight courier, addressed to the Initial Purchaser at
Morgan Stanley & Co. Inc, 1585 Broadway,
5th
Floor, New York, New York 10036 Attention:
Neil Molino and Todd Bosch; with a copy to Morgan Stanley &



18









 







Co. Inc, 1221 Avenue of the Americas,
34th Floor, New York, New York 10020 Attention: Anthony Cicia.



     Section 1.04. Conflict With Trust Indenture Act.



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



     Section 1.05. Effect of Headings and Table of Contents. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect the construction
hereof.



ARTICLE 2

Debenture Forms




     Section 2.01. Form Generally.



     The Debentures shall be in substantially the form set forth in this Article 2, with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the rules of any
securities exchange, the Code, and regulations thereunder, or as may, consistent herewith, be
determined by the officers executing such Debentures, as evidenced by their execution thereof. The
Company shall furnish any such legends and endorsements to the Trustee in writing. All Debentures
shall be in fully registered form.



     Notices of Conversion shall be in substantially the form set forth in Section 2.03.



     The Debentures shall be printed, lithographed, typewritten or engraved or produced by any
combination of these methods or may be produced in any other manner permitted by the rules of any
automated quotation system or securities exchange (including on steel engraved borders if so
required by any securities exchange upon which the Debentures may be listed) on which the
Debentures may be listed for trading, as the case may be, all as determined by the officers
executing such Debentures, as evidenced by their execution thereof.



     Section 2.02. Form of Debenture.



19









 





[FORM OF FACE OF DEBENTURE]



[INSERT IF A GLOBAL DEBENTURE:



THIS DEBENTURE IS A GLOBAL DEBENTURE 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 DEBENTURE FOR ALL PURPOSES.



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



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR DEBENTURES IN DEFINITIVE REGISTERED FORM
IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE INDENTURE, THIS GLOBAL DEBENTURE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]




20









 








CONSECO, INC.




7.0% Convertible Senior Debenture due 2016




Series [___]




No.      
        
       




CUSIP No.      
         
      




ISIN No.      
          
     




     CONSECO, INC., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the “Company,” which term includes any successor Person under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay to
       
         
           
         
    , or registered assigns, the principal sum [of     
        
         United States Dollars
(U.S. $       
        
      )] [if this Debenture is a Global Debenture, then insert — or such greater or lesser
amount as is indicated in the records of the Trustee and DTC] on December 30, 2016, and to pay
interest thereon, from [      
         
     ], or from the most recent Interest Payment Date (as defined
below) to which interest has been paid or duly provided for, semi-annually in arrears on June 30
and December 30 in each year (each, an “Interest Payment Date”), commencing [       
       
       — to be
the first Interest Payment Date immediately succeeding the Issue Date of such series, unless the
Issue Date occurs after close of business on the Regular Record Date for such Interest Payment
Date, in which case the first Interest Payment Date will instead be the second Interest Payment
Date immediately succeeding the Issue Date for such series], at the rate of 7.0% per annum, until
the principal hereof is due. No interest will be payable on any overdue principal or interest. The
interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall,
as provided in the Indenture, be paid to the Person in whose name this Debenture (or one or more
Predecessor Debentures) is registered at the close of business on the Regular Record Date for such
interest, which shall be the June 15 or December 15 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Except as otherwise provided in the Indenture,
any such interest not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person in whose name this
Debenture (or one or more Predecessor Debentures) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by the Company, notice
whereof shall be given to Holders of Debentures not less than 10 calendar days prior to the Special
Record Date, or be paid at any time in any other lawful manner not inconsistent with the
requirements of any automated quotation system or securities exchange on which the Debentures may
be listed for trading, and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Payments of principal shall be made upon the surrender of this Debenture
at the option of the Holder at the Corporate Trust Office of the Trustee,



21









 




or at such other office or agency of the Company as may be designated by it, in each case in
New York City, for such purpose in such lawful monies of the United States of America as at the
time of payment shall be legal tender for the payment of public and private debts, or at such other
offices or agencies as the Company may designate in New York City, by United States Dollar check
drawn on, or wire transfer to, a United States Dollar account (such a transfer to be made to a
Holder only if such Holder shall have furnished wire instructions in writing to the Trustee no
later than five Business Days prior to the relevant payment date). Payment of accrued and unpaid
interest on this Debenture due on any Interest Payment Date shall be paid by mailing a check for
the amount payable to or upon the written order of the Holders entitled thereto as it shall appear
on the registry books of the Company, provided that, at the application of such Holder in writing
to the Debenture Registrar not later than five Business Days prior to the relevant Interest Payment
Date, accrued and unpaid interest on such Holder’s Debentures shall be paid by wire transfer in
immediately available funds to such Holder’s account in the United States supplied by such Holder
from time to time to the Trustee and Paying Agent (if different from Trustee); provided, further,
that payment of accrued and unpaid interest made to the Depositary shall be paid by wire transfer
in immediately available funds in accordance with such wire transfer instructions and other
procedures provided by the Depositary from time to time.




     Except as specifically provided herein and in the Indenture, the Company shall not be required
to make any payment with respect to any tax, assessment or other governmental charge imposed by any
government or any political subdivision or taxing authority thereof or therein.



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



     Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof or an Authenticating Agent by the manual signature of one of their respective
authorized signatories, this Debenture shall not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose.



[Remainder of page intentionally left blank]




22









 





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



	 	 	 	 	 
	 	CONSECO, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



TRUSTEE’S CERTIFICATE OF AUTHENTICATION



This is one of the Debentures referred to in the within-mentioned Indenture.




Dated:        
        
            
         
          
         
     




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

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




23











 





[FORM OF REVERSE OF DEBENTURE]




CONSECO, INC.




7.0% Convertible Senior Debenture due 2016

Series [___]




     This Debenture is one of a duly authorized issue of Debentures of the Company designated as
its “7.0% Convertible Senior Debentures due 2016” (herein called the “Debentures”) issued and to be
issued under an Indenture dated as of October 16, 2009 between the Company and The Bank of New York
Mellon Trust Company, N.A., as Trustee (herein called the “Trustee,” which term includes any
successor trustee under the Indenture referred to herein as the “Indenture”), to which the
Indenture and all indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Debentures and of the terms upon which the Debentures are, and are
to be, authenticated and delivered. Terms used but not defined herein shall have the meanings
given to them in the Indenture. As provided in the Indenture and subject to certain limitations
therein set forth, the Debentures are exchangeable for a like aggregate principal amount of
Debentures of any authorized denominations as requested by the Holder surrendering the same upon
surrender of the Debenture or Debentures to be exchanged, at the Corporate Trust Office of the
Trustee. The Trustee upon such surrender by the Holder shall issue the new Debentures in the
requested denominations.



     Holders of the Debentures shall have no right to require the Company to repurchase their
Debentures at any time.



     No sinking fund is provided for the Debentures and the Debentures are not subject to
redemption at the option of the Company.



     In any case where the due date for the payment of the principal of or interest on any
Debenture or the last day on which a Holder of a Debenture has a right to convert his Debenture
shall be, at any Place of Payment or Place of Conversion, as the case may be, a day on which
banking institutions at such Place of Payment or Place of Conversion are authorized or obligated by
law or executive order to close, then payment of principal, interest or delivery for conversion of
such Debenture need not be made on or by such date at such place but may be made on or by the next
succeeding day at such place which is not a day on which banking institutions are authorized or
obligated by law or executive order to close, with the same force and effect as if made on the date
for such payment, or by such last day for conversion, and no interest shall accrue on the amount so
payable for the period after such date.



24









 





     The Indenture contains provisions permitting the Company and the Trustee in certain
circumstances, without the consent of the Holders of the Debentures, and in other circumstances,
with the consent of the Holders of not less than a majority in aggregate principal amount of all
series of Debentures at the time Outstanding (acting together as a single class), evidenced as in
the Indenture provided, 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 Debentures; provided, however, that no
such supplemental indenture shall make any of the changes set forth in Section 8.02(a)-(g) of the
Indenture, without the consent of each Holder of an Outstanding Debenture affected thereby. It is
also provided in the Indenture that, prior to any declaration accelerating the maturity of the
Debentures, the Holders of a majority in aggregate principal amount of all series of the Debentures
at the time Outstanding (acting together as a single class) may on behalf of the Holders of all of
the Debentures, including any series of Debentures issued thereafter, waive any past Default or
Event of Default under the Indenture and its consequences except as provided in the Indenture. Any
such consent or waiver by the Holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners
of this Debenture and any Debentures that may be issued in exchange or substitution hereof,
irrespective of whether or not any notation thereof is made upon this Debenture or such other
Debentures.



     No reference herein to the Indenture and no provision of this Debenture or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of, and accrued and unpaid interest on, this Debenture, at the place, at the
respective times, at the rate and in the lawful money herein prescribed.



     Unless a Conversion Blocker is in effect with respect to the Holder, the Holder hereof has the
right, at its option, on and after the Conversion Commencement Date, or earlier in connection with
a Make Whole Adjustment Event specified in the Indenture, and prior to the close of business on the
Business Day immediately preceding the Maturity Date, to convert any Debenture or portion thereof
that is $1,000 or an integral multiple thereof, into shares of Common Stock or Reference Property,
in each case at the Conversion Rate specified in the Indenture, as adjusted from time to time as
provided in the Indenture, upon surrender of this Debenture, together with a Notice of Conversion,
a form of which is attached hereto, as provided in the Indenture and this Debenture, to the Company
at the office or agency of the Company maintained for that purpose, or at the option of such
Holder, the Corporate Trust Office, and, unless the shares of Common Stock or Reference Property,
as the case may be, issuable on conversion are to be issued in the name of the Holder, duly
endorsed by, or accompanied by instruments of transfer in form satisfactory to the Company or its
agent duly executed by, the Holder or by his duly authorized



25









 




attorney. The initial Conversion Rate
shall be 182.1494 shares of Common Stock
for each $1,000 principal amount of Debentures, subject to adjustment as set forth in the
Indenture. No fractional shares of Common Stock or Reference Property, as the case may be, shall be
issued upon any conversion. Instead, the Company will increase the number of shares of Common Stock
or Reference Property, as the case may be, issued to the Holder to the next whole share, as
provided in the Indenture. No adjustment shall be made for dividends on any such shares issued upon
conversion of such Debentures except as provided in the Indenture.




     Upon due presentment for registration of transfer of this Debenture at the office or agency of
the Company, a new Debenture or Debentures of authorized denominations for an equal aggregate
principal amount shall be issued to the transferee in exchange thereof, subject to the limitations
provided in the Indenture, without charge except for any tax, assessments or other governmental
charge imposed in connection therewith.



     The Company, the Trustee, any Authenticating Agent, any Paying Agent, any Conversion Agent and
any Registrar may deem and treat the registered Holder hereof as the absolute owner of this
Debenture (whether or not this Debenture shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving payment hereof, or on account
hereof, for the conversion hereof and for all other purposes, and neither the Company nor the
Trustee nor any authenticating agent nor any Paying Agent nor any Conversion Agent nor any
Registrar shall be affected by any notice to the contrary. All payments made to or upon the order
of such registered Holder shall, to the extent of the sum or sums paid, satisfy and discharge
liability for monies payable on this Debenture.



     No recourse for the payment of the principal of, or accrued and unpaid interest on, this
Debenture, 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 indenture
supplemental thereto or in any Debenture, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder, employee, agent, officer,
director or subsidiary, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.



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



     The Indenture and this Debenture shall be governed by and construed in accordance with the
laws of the State of New York.



26









 





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



     Section 2.03. Form of Notice of Conversion. The following Notice of Conversion shall be
attached as an exhibit to each Debenture.



NOTICE OF CONVERSION




     The undersigned Holder of this Debenture hereby irrevocably exercises the option to convert
this Debenture, or any portion of the principal amount hereof (that is U.S. $1,000 or an integral
multiple of U.S. $1,000 in excess thereof,) below designated, into shares of Common Stock or
Reference Property, as applicable in accordance with the terms of the Indenture referred to in this
Debenture, and directs that such shares and any Debentures representing any unconverted principal
amount hereof, be delivered to and be registered in the name of the undersigned unless a different
name has been indicated below. If shares of Common Stock, Reference Property or Debentures are to
be registered in the name of a Person other than the undersigned, or an Affiliate of the
undersigned, (a) the undersigned shall pay all documentary, stamp or similar issue or transfer
taxes payable with respect thereto and (b) signature(s) must be guaranteed by an Eligible Guarantor
Institution with membership in an approved signature guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934. Any amount required to be paid by the undersigned on
account of interest accompanies this Debenture.



     The undersigned Holder hereby acknowledges and agrees that the Company may rely solely upon
its receipt of this Notice of Conversion by such Holder as sufficient evidence that no Conversion
Blocker is in effect with respect to the principal amount of Debentures such Holder is hereby
irrevocably exercising its option to convert into shares of Common Stock or Reference Property, as
the case may be, in accordance with the terms of the Indenture referred to in this Debenture. In
addition, the undersigned Holder hereby acknowledges and agrees that the Company shall not be
liable to such Holder or any other Person for any breach of any Conversion Blocker resulting from
actions the Company is required to take in connection with any conversion of all or part of such
Holder’s Debentures in reliance on this Notice of Conversion.



	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 
	 

	 	 

	 	 

Signature(s)
	 	 






If shares or Debentures are to be registered in

the name of a Person other than the Holder,

please print such Person’s name and address:




27









 





	 	 	 
	 

(Name)

	 	 
	 
	 	 
	 

 
 

(Address)

	 	  
	 
	 	 
	 

Social Security or other Identification


Number, if any

	 	 
	 
	 	 
	 

[Signature Guaranteed]

	 	 






     If only a portion of the Debentures is to be converted, please indicate:




	1.	 	Principal amount to be converted: U.S. $                     
	 
	2.	 	Principal amount and denomination of Debentures
representing unconverted principal amount to be issued:





     Amount: U.S. $                     Denominations: U.S. $                    


(U.S. $1,000 or any integral multiple of U.S. $1,000 in excess thereof).




     Section 2.04. Form of Assignment. The following Form of Assignment shall be attached as an
exhibit to each Debenture.



ASSIGNMENT




     For value received,                                          hereby sell(s), assign(s) and
transfer(s) unto                                          (Please insert Social Security or
other taxpayer identification number of assignee) the within Debenture, and hereby irrevocably
constitutes and appoints                                     as attorney to transfer the
said Debenture on the books of the Company, with full power of substitution in the premises.



     Dated:
                    
                                                                                                     Signature(s):                                         



     Signature(s) must be guaranteed by an Eligible Guarantor Institution with membership in an
approved signature guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange Act of
1934.



     Signature Guaranteed



28









 






     In connection with any transfer of this Debenture occurring prior to the first anniversary of
the original issuance date of the series of Debentures of which this Debenture forms a part, the
undersigned confirms that it has not utilized any general solicitation or general advertising in
connection with the transfer and that this Debenture is being transferred:



     [Check One]



	 	 	 	 	 	 	 	 	 
	 

	 	 	(1	)	 	o
	 	to the Company or a subsidiary thereof; or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(2	)	 	o
	 	to a “Qualified Institutional Buyer” pursuant to and in compliance with
Rule 144A under the Securities Act, to which notice has been given that this transfer
is being made in reliance on Rule 144A; or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(3	)	 	o
	 	pursuant to and in compliance with the exemption from registration
provided by Rule 144 under the Securities Act; or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(4	)	 	o
	 	pursuant to a registration statement that has been declared effective
under the Securities Act and that continues to be effective at the time of transfer;
or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(5	)	 	o
	 	pursuant to another available exemption from registration under
Securities Act.





Unless one of the above boxes is checked, the Trustee will refuse to register any of the Debentures
evidenced by this certificate in the name of any Person other than the registered Holder thereof,
provided that if box (5) is checked, the Holder shall deliver to the Company, to the Trustee and
the Debenture Registrar), prior to registering any such transfer of the Debentures, in its sole
discretion, such legal opinions, certifications and other information as the Company may reasonably
request to confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.



If none of the foregoing boxes is checked, the Trustee or Debenture Registrar shall not be
obligated to register this Debenture in the name of any Person other than the Holder hereof unless
and until the conditions to any such transfer of registration set forth herein and in Section 2.07
of the Indenture shall have been satisfied.




     Dated:                     
                                                                                
                     Signature(s):                                         



     Signature(s) must be guaranteed by an Eligible Guarantor Institution with membership in an
approved signature guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange Act of
1934.



29









 





     Signature Guaranteed



     Section 2.05. Mutilated, Destroyed, Lost or Stolen Debentures. In case any Debenture shall
become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and
upon its written request the Trustee or an authenticating agent appointed by the Trustee shall
authenticate and deliver, a new Debenture of the same series, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated Debenture, or in lieu
of and in substitution for the Debenture so destroyed, lost or stolen. In every case the applicant
for a substituted Debenture shall furnish to the Company, to the Trustee and, if applicable, to
such authenticating agent such security or indemnity as may be required by them to save each of
them harmless from any loss, liability, cost or expense caused by or connected with such
substitution, and, in every case of destruction, loss or theft, the applicant shall also (a)
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 Debenture and of the ownership thereof
and (b) surrender any mutilated Debenture to the Trustee.



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



     Every substitute Debenture issued pursuant to the provisions of this Section 2.05 by virtue of
the fact that any Debenture is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debenture 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 Debentures duly
issued hereunder. To the extent permitted by law, all Debentures shall be held and owned upon the
express condition that the foregoing provisions are exclusive with respect to the replacement or
payment or conversion of mutilated, destroyed, lost



30









 




or stolen Debentures and shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to the replacement or
payment or conversion of negotiable instruments or other securities without their surrender.




     Section 2.06. Execution, Authentication and Delivery of Debentures; Issuable in Series; Terms
of Particular Series.



     (a) The aggregate principal amount of Debentures that may be authenticated, delivered, and
Outstanding at any time under this Indenture is limited to $293,000,000.



     The Debentures will be issued from time to time on each Closing Date, with the Debentures
issued on a Closing Date constituting a separate series of Debentures. The aggregate principal
amount of the Debentures of a series shall equal the aggregate principal amount of Existing
Debentures purchased, repurchased or redeemed, as the case may be, on such Closing Date. All
Debentures issued under this Indenture shall in all respects be equally and ratably entitled to the
benefits hereof, without preference, priority, or distinction on account of the actual time of the
authentication and delivery thereof.



     Each series of Debentures shall be created by or pursuant to an Authentication Order, which
shall establish the terms of such series of Debentures, which terms shall be identical to those set
forth in this Indenture except for the following (as and to such extent such terms may be
applicable):



     (1) the CUSIP/ISIN of such series;



     (2) the aggregate principal amount of the Debentures of such series, which aggregate principal
amount shall equal the aggregate principal amount of Existing Debentures purchased, repurchased or
redeemed, as the case may be, on such Closing Date;



     (3) the Issue Date of the Debentures of such series; and



     (4) the date from which interest shall accrue on the Debentures of such series, which date
shall be the Issue Date, and the first Interest Payment Date for such series on which interest
shall be payable, which shall be the first Interest Payment Date immediately succeeding the Issue
Date of such series, unless the Issue Date occurs after the close of business on the Regular Record
Date for such Interest Payment Date, in which case the first Interest Payment Date will instead be
the second Interest Payment Date immediately succeeding the Issue Date for such series.



     Upon the establishment of any series of Debentures, the execution by the officer authorized by
the Authentication Order with respect to the Debentures of such series to be issued, and the
delivery of such Authentication Order to the



31









 




Trustee at or before the time of issuance of the Debentures of such series, shall constitute a
sufficient record of such action.




     No series of Debentures may be reopened for issuances of additional Debentures of such series.



     The form of the Debentures of each series shall be established pursuant to the provisions of
this Indenture. The Debentures of any series may only be issuable in registered form, without
coupons.



     (b) The Debentures shall be executed on behalf of the Company by its Chief Executive Officer,
its Chief Financial Officer, any of its Vice Presidents, its Treasurer, its Secretary, or any of
its Assistant Secretaries. The signature of any of these officers on the Debentures may be manual
or facsimile. Typographical and other minor errors or defects in any such reproduction of any such
signature shall not affect the validity or enforceability of any Debenture that has been duly
authenticated and delivered by the Trustee.



     All Debentures shall be dated the date of their authentication.



     In case any officer of the Company who shall have signed any of the Debentures shall cease to
be such officer before the Debentures so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Debentures nevertheless may be authenticated and
delivered or disposed of as though the Person who signed such Debentures had not ceased to be such
officer of the Company, and any Debenture may be signed on behalf of the Company by such Persons
as, at the actual date of the execution of such Debenture, shall be the proper officers of the
Company, although at the date of the execution of this Indenture any such person was not such an
officer.



     On any Closing Date after the execution and delivery of this Indenture, the Company may
deliver Debentures to the Trustee for authentication, together with a Company Order for
authentication and delivery (such Order an “Authentication Order”) with respect to such Debentures,
and the Trustee shall, upon receipt of such Authentication Order, in accordance with procedures
acceptable to the Trustee set forth in the Authentication Order, and subject to the provisions
hereof, authenticate and deliver such Debentures to such recipients as may be specified from time
to time pursuant to such Authentication Order. The terms of such Debentures provided for under
Section 2.06(a) shall be determinable by reference to such Authentication Order and procedures. In
authenticating such Debentures and accepting the additional responsibilities under this Indenture
in relation to such Debentures, the Trustee shall be entitled to receive, and (subject to the
provisions of Section 6.01 hereof) shall be fully protected in relying upon:



     (1) an Authentication Order, certifying as to the authorized forms and terms of such
Debentures; and



32









 





     (2) an Opinion of Counsel, stating that:




(a) the form or forms and terms of such Debentures have been established by and
in conformity with the provisions of this Indenture; and




(b) such Debentures, when authenticated and delivered by the Trustee and issued
by the Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, moratorium, reorganization, and other laws of general applicability
relating to or affecting the enforcement of creditors’ rights and to general
principles of equity.



     The Trustee shall not be required to authenticate such Debentures if the issue thereof will
adversely affect the Trustee’s own rights, duties, or immunities under the Debentures and this
Indenture.



     Only such Debentures as shall bear thereon a certificate of authentication substantially in
the form set forth on the form of Debenture set forth in Section 2.02, manually executed by the
Trustee (or an authenticating agent appointed by the Trustee as provided by Section 15.11), 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 Debenture executed by the
Company shall be conclusive evidence that the Debenture so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the benefits of this
Indenture.



     Section 2.07. Exchange and Registration of Transfer of Debentures; Restrictions on Transfer;
Depositary.



     (a) The Company shall cause to be kept at the Corporate Trust Office a register (the register
maintained in such office and in any other office or agency of the Company designated pursuant to
Section 4.02 being herein sometimes collectively referred to as the “Debenture Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of each series of Debentures and of transfers of each series of Debentures. Such
register shall be in written form or in any form capable of being converted into written form
within a reasonable period of time. The Trustee is hereby appointed “Debenture Registrar” for the
purpose of registering Debentures and transfers of Debentures 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 Debenture to the Debenture Registrar or any
co-registrar, and satisfaction of the requirements for such transfer set forth in this Section
2.07, the Company shall execute, and the



33









 




Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Debentures of the same series, of any
authorized
denominations and of a like aggregate principal amount and bearing such restrictive legends as
may be required by this Indenture.




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



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



     No service charge shall be charged to the Holder for any exchange or registration of transfer
of Debentures, but the Company or the Trustee may require payment of a sum sufficient to cover any
tax, assessments or other governmental charges that may be imposed in connection therewith.



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



     (b) Every Debenture that bears or is required under this Section 2.07(b) to bear the legend
set forth in this Section 2.07(b) (together with any Common Stock issued upon its conversion and
required to bear the legend set forth in Section 2.07(c), collectively, the “Restricted
Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.07(b)
(including the legend set forth 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 Holder’s
acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in this
Section 2.07(b) and Section 2.07(c), the term “transfer” encompasses any sale, pledge, transfer or
other disposition whatsoever of any Restricted Security.



     Until the date (the “Resale Restriction Termination Date”) that is one year after the Issue
Date of such series of Debentures, or such other period of time as permitted by Rule 144 under the
Securities Act or any successor provision



34









 




thereto, any certificate evidencing such Debenture (and
all securities issued in exchange therefor or substitution thereof, other than Common Stock, if
any, issued upon conversion thereof, which shall bear the legend set forth in Section 2.07(c), if
applicable) shall bear a legend in substantially the following form (unless such Debentures have
been transferred pursuant to a registration statement that has become or been declared effective
under the Securities Act and that continues to be effective at the time of such transfer, pursuant
to the exemption from registration provided by Rule 144 or any similar provision then in force
under the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof
to the Trustee):




     THE SALE OF THIS DEBENTURE AND ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION HAVE
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
ANY STATE SECURITIES LAWS, AND ACCORDINGLY, THIS DEBENTURE AND ANY SHARES OF COMMON STOCK ISSUABLE
UPON ITS CONVERSION MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ITS ACQUISITION HEREOF OR A BENEFICIAL INTEREST HEREIN, THE HOLDER AGREES (1) THAT IT WILL NOT,
PRIOR TO THE LATER OF (X) THE FIRST ANNIVERSARY OF THE ORIGINAL ISSUANCE DATE OF THE SERIES OF
DEBENTURES OF WHICH SUCH DEBENTURES FORM A PART AND (Y) 90 DAYS AFTER IT CEASES TO BE AN AFFILIATE
(WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF CONSECO, INC. (THE “COMPANY”), OFFER,
RESELL, PLEDGE OR OTHERWISE TRANSFER THE DEBENTURES EVIDENCED HEREBY OR THE SHARES OF COMMON STOCK
ISSUABLE UPON THEIR CONVERSION EXCEPT (A) TO THE COMPANY; (B) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (“QIB”) WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QIB
AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN
ACCORDANCE WITH RULE 144A (IF AVAILABLE); (C) UNDER AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT; (D) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT; OR (E) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT; (2) THAT IT WILL, PRIOR TO ANY TRANSFER OF THIS DEBENTURE OR
ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION PURSUANT TO CLAUSE (1) (E) ABOVE PRIOR TO
THE LATER OF (X) THE FIRST ANNIVERSARY OF THE ORIGINAL ISSUANCE DATE OF THE SERIES OF DEBENTURES OF
WHICH SUCH DEBENTURES FORM A PART AND (Y) 90 DAYS AFTER IT CEASES TO BE AN AFFILIATE



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(WITHIN THE
MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY, FURNISH TO THE TRUSTEE AND THE
COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION
AS THEY MAY REASONABLY REQUIRE AND MAY RELY UPON 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; AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS DEBENTURE AND ANY
SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. THE RESTRICTIONS SET FORTH IN THIS LEGEND SHALL CEASE TO HAVE EFFECT ONE
YEAR AFTER THE ORIGINAL ISSUANCE DATE OF THE SERIES OF DEBENTURES OF WHICH SUCH DEBENTURES FORM A
PART, PROVIDED THAT ALL HOLDERS OF SUCH SERIES OF DEBENTURES OR COMMON STOCK ISSUED UPON CONVERSION
OF SUCH DEBENTURES AFTER SUCH DATE SHALL CONTINUE TO BE REQUIRED TO TRANSFER SUCH DEBENTURES AND
COMMON STOCK IN ACCORDANCE WITH THE REQUIREMENTS OF APPLICABLE SECURITIES LAWS.




     THIS DEBENTURE, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION AND ANY RELATED
DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON
RESALES AND OTHER TRANSFERS OF THIS DEBENTURE AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN
APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE
OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS DEBENTURE AND SUCH SHARES SHALL
BE DEEMED BY THE ACCEPTANCE OF THIS DEBENTURE AND ANY SUCH SHARES TO HAVE AGREED TO ANY SUCH
AMENDMENT OR SUPPLEMENT.



     Any Debenture (or security issued in exchange or substitution therefor) as to which such
restrictions on transfer shall have expired in accordance with their terms may, upon surrender of
such Debenture for exchange to the Debenture Registrar in accordance with the provisions of this
Section 2.07, be exchanged for a new Debenture or Debentures, of like tenor and aggregate principal
amount, and of the same series which shall not bear the restrictive legend required by this Section
2.07(b). The Company shall notify the Trustee upon the occurrence of the Resale Restriction
Termination Date and promptly after a registration statement with respect to the Debentures or the
Common Stock has been declared effective under the Securities Act.



     (c) Until the Resale Restriction Termination Date for a series of Debenture, any stock
certificate representing Common Stock issued upon conversion of a Debenture shall bear a legend in
substantially the following form



36









 




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




     THE SALE OF THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND ACCORDINGLY, THIS SECURITY MAY
NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR
A BENEFICIAL INTEREST HEREIN, THE HOLDER AGREES (1) THAT IT WILL NOT, PRIOR TO THE LATER OF (X) THE
FIRST ANNIVERSARY OF THE ORIGINAL ISSUANCE DATE OF THE SERIES OF DEBENTURES UPON THE CONVERSION OF
WHICH THIS SECURITY WAS ISSUED AND (Y) 90 DAYS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE
MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF CONSECO, INC. (THE “COMPANY”), OFFER, RESELL,
PLEDGE OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY; (B) TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (“QIB”) WITHIN THE MEANING OF RULE
144A UNDER THE SECURITIES ACT THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER
QIB AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN
ACCORDANCE WITH RULE 144A (IF AVAILABLE); (C) UNDER AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT; (D) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT; OR (E) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, (2) THAT IT WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY
PURSUANT TO CLAUSE (1)(E) ABOVE PRIOR TO THE LATER OF (X) THE FIRST ANNIVERSARY OF THE ORIGINAL
ISSUANCE DATE OF THE SERIES OF DEBENTURES UPON THE CONVERSION OF WHICH THIS SECURITY WAS ISSUED AND
(Y) 90 DAYS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES
ACT) OF THE COMPANY, FURNISH TO THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS IT MAY REASONABLY REQUIRE AND MAY RELY UPON 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; AND (3) AGREES THAT IT WILL GIVE TO EACH



37









 




PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THE RESTRICTIONS SET
FORTH IN THIS LEGEND SHALL CEASE TO HAVE EFFECT ONE YEAR AFTER THE ORIGINAL ISSUANCE DATE OF THE
SERIES OF DEBENTURES UPON THE CONVERSION OF WHICH THIS SECURITY WAS ISSUED, PROVIDED THAT ALL
HOLDERS OF THIS SECURITY AFTER SUCH DATE SHALL CONTINUE TO BE REQUIRED TO TRANSFER THIS SECURITY IN
ACCORDANCE WITH THE REQUIREMENTS OF APPLICABLE SECURITIES LAWS.




     THIS SECURITY MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON
RESALES AND OTHER TRANSFERS OF THIS SECURITY TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION
(OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED
SECURITIES GENERALLY. THE HOLDER OF THIS SECURITY SHALL BE DEEMED BY THE ACCEPTANCE OF THIS
SECURITY TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.



     Any such Common Stock as to which such restrictions on transfer shall have expired in
accordance with their terms may, upon surrender of the certificates representing such shares of
Common Stock for exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of
Common Stock, which shall not bear the restrictive legend required by this Section 2.07(c).



     (d) The following legend shall appear on the face of each Debenture of a series that is issued
with original issue discount for United States federal income tax purposes:



     THIS DEBENTURE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR UNITED STATES FEDERAL
INCOME TAX PURPOSES. UPON REQUEST, THE COMPANY WILL PROMPTLY MAKE AVAILABLE TO A HOLDER OF THIS
DEBENTURE INFORMATION REGARDING THE ISSUE PRICE, THE AMOUNT OF OID, THE ISSUE DATE, AND THE YIELD
TO MATURITY OF THIS DEBENTURE. HOLDERS SHOULD CONTACT INVESTOR RELATIONS, CONSECO, INC. 11825 N.
PENNSYLVANIA STREET, CARMEL, INDIANA 46032, TEL. 317-817-2893.



     (e) Any Debenture or Common Stock issued upon conversion of a Debenture that, prior to the
expiration of the holding period applicable to sales thereof under Rule 144 under the Securities
Act (or any successor provision), is 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 in a



38









 




transaction that results in such Debentures or Common Stock, as the case may be, no longer being
“Restricted Securities” (as defined under Rule 144).




     (f) Beneficial interests in a Restricted Global Debenture of each series will be automatically
exchanged for beneficial interests in an Unrestricted Global Debenture without any action required
by or on behalf of the Holder (the “Automatic Exchange”) on the date that is specified by the
Company and promptly following the Resale Restriction Termination Date (the “Automatic Exchange
Date”). The Restricted Global Debenture from which beneficial interests are transferred pursuant to
an Automatic Exchange shall be cancelled following the Automatic Exchange. The Trustee shall
authenticate one or more Unrestricted Global Debentures in an aggregate principal amount equal to
the aggregate principal amount of beneficial interests transferred pursuant to the Automatic
Exchange. The Company shall comply with the Applicable Procedures of the Depositary in effecting
the Automatic Exchange.



ARTICLE 3

The Debentures




     Section 3.01. Title and Terms.



     The Debentures shall be known and designated as the “7.0% Convertible Senior Debentures due
2016” of the Company. Their Maturity Date shall be December 30, 2016, and they shall bear interest
on their principal amount from the Issue Date of such series, payable semi-annually in arrears on
June 30 and December 30 in each year, commencing on the Interest Payment Date so designated with
respect to such series of Debentures, at the rate of 7.0% per annum until the principal thereof is
due; provided, however, that payments shall only be made on a Business Day as provided in Section
15.08. Interest will be calculated on the Debentures using a 360-day year composed of twelve
30-day months. The Company may, without the consent of the Holders of the Debentures then
Outstanding, issue a new series of Debentures on each Issue Date in accordance with Section 2.06.
Each such issuance of Debentures shall constitute a separate series of Debentures and bear a
different CUSIP number. All series of Debentures shall act together as a single class for purposes
of any provisions hereunder relating to voting, amendment, modification, consent and waiver.



     The Company shall not pay interest on interest with respect to any Defaulted Interest, and in
no case shall interest accrue on any Defaulted Interest.



     The principal of and interest on the Debentures shall be payable as provided in the form of
Debentures set forth in Section 2.02 (such city in which the identified Paying Agent is located
being herein called a “Place of Payment”).




39











 





     The Debentures shall be senior unsecured obligations of the Company and shall rank pari
passu with all of the Company’s other senior unsecured and unsubordinated obligations.



     The Debentures may not be redeemed at the option of the Company prior to the Maturity Date.
Holders of the Debentures shall have no right to require the Company to repurchase their Debentures
at any time.



     The Debentures shall be convertible as provided in Article 12 (any city in which any
Conversion Agent is located being herein called a “Place of Conversion”).



     Section 3.02. Denominations. The Debentures shall be issuable only in registered form,
without coupons, in denominations of U.S. $1,000 and integral multiples of U.S. $1,000 in excess
thereof.



     Section 3.03. Global Debentures; Non-Global Debentures; Book-entry Provisions.



     (a) Global Debentures




     (i) Each Global Debenture for each series of Debentures authenticated under this
Indenture shall be registered in the name of the Depositary designated by the Company for
such Global Debenture or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Debenture shall constitute a single
Debenture for all purposes of this Indenture. The Company hereby appoints DTC as the
Depositary.




     (ii) Except for exchanges of Global Debentures for definitive, non-Global Debentures
in accordance with the Applicable Procedures, no Global Debenture may be exchanged in
whole or in part for Debentures registered, and no transfer of a Global Debenture in whole
or in part may be registered, in the name of any Person other than the Depositary for such
Global Debenture or a nominee thereof unless (A) such Depositary (i) has notified the
Company that it is unwilling or unable to continue as Depositary for such Global Debenture
or (ii) has ceased to be a clearing agency registered as such under the Exchange Act or
announces an intention permanently to cease business or does in fact do so or (B) there
shall have occurred and be continuing an Event of Default with respect to such Global
Debenture. In such event, if a successor Depositary for such Global Debenture is not
appointed by the Company within 90 calendar days after the Company receives such notice or
becomes aware of such ineligibility, the Company shall execute, and the Trustee, upon
receipt of an Officers’ Certificate directing the authentication and delivery of non-
Global Debentures, shall authenticate and deliver, non-Global Debentures, in any
authorized denominations in an aggregate principal amount equal to



40









 







the principal amount of
such Global Debenture in exchange for such Global Debenture. The Company shall promptly
notify the Initial Purchaser if any non-Global Debentures for any series are issued
pursuant to this Section 3.03(a)(ii) and the reason giving rise to such issuance.




     (iii) If any Global Debenture is to be exchanged for other Debentures or canceled in
whole, it shall be surrendered by or on behalf of the Depositary or its nominee to the
Trustee, as Registrar, for exchange or cancellation, as provided in this Article 3. If any
Global Debenture is to be exchanged for other Debentures or canceled in part, or if
another Debenture is to be exchanged in whole or in part for a beneficial interest in any
Global Debenture, in each case, as provided in Article 2 of this Indenture, then either
(A) such Global Debenture shall be so surrendered for exchange or cancellation, as
provided in this Article 3, or (B) the principal amount thereof shall be reduced or
increased by an amount equal to the portion thereof to be so exchanged or canceled, or
equal to the principal amount of such other Debenture to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment made on the
records of the Trustee, as Registrar, whereupon the Trustee, in accordance with the
Applicable Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or adjustment of a
Global Debenture, the Trustee shall, subject to this Article 3, authenticate and deliver
any Debentures issuable in exchange for such Global Debenture (or any portion thereof) to
or upon the order of, and registered in such names as may be directed by, the Depositary
or its authorized representative. The Trustee shall be entitled to receive from the
Depositary the names, addresses and tax identification numbers of the Persons in whose
name the Debentures are to be registered prior to such authentication and delivery. Upon
the request of the Trustee in connection with the occurrence of any of the events
specified in the preceding paragraph, the Company shall promptly make available to the
Trustee a reasonable supply of Debentures that are not in the form of Global Debentures.
The Trustee shall be entitled to rely upon any order, direction or request of the
Depositary or its authorized representative which is given or made pursuant to this
Article 3 if such order, direction or request is given or made in accordance with the
Applicable Procedures (to the extent such procedures are applicable to such direction or
request).




     (iv) Every Debenture authenticated and delivered upon registration of transfer of, or
in exchange for or in lieu of, a Global Debenture or any portion thereof, whether pursuant
to this Article 3 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a registered Global Debenture, unless such Debenture is registered in the
name of a Person other than the Depositary for such Global Debenture or a



41









 







nominee
thereof, in which case such Debenture shall be authenticated and delivered in accordance
with clause (b) of this Section 3.03.




     (v) The Depositary or its nominee, as registered owner of a Global Debenture, shall
be the Holder of such Global Debenture for all purposes under this Indenture and the
Debentures, and owners of beneficial interests in a Global Debenture shall hold such
interests pursuant to the Applicable Procedures. Accordingly, any such owner’s beneficial
interest in a Global Debenture shall be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Depositary or its nominee or its
Agent Members and such owners of beneficial interests in a Global Debenture shall not be
considered the owners or holders thereof.




     (vi) For the avoidance of doubt, any Global Debenture exchanged in accordance with
this Section 3.03(a) shall only be for an Debenture of the same series.




     (vii) None of the Trustee, the Paying Agent or the Debenture Registrar shall have any
responsibility or obligation to any beneficial owner in a Global Debenture, an Agent
Member or other Person with respect to the accuracy of the records of the Depositary or
its nominee or of any Agent Member, with respect to any ownership interest in the
Debentures or with respect to the delivery to any Agent Member, beneficial owner or other
Person (other than the Depositary) of any notice or the payment of any amount, under or
with respect to such Debentures. All notices and communications to be given to the Holders
of Debentures and all payments to be made to Holders of Debentures under the Debentures
and under this Indenture shall be given or made only to or upon the order of the
registered Holders (which shall be the Depositary or its nominee in the case of the Global
Debenture). The rights of beneficial owners in the Global Debenture shall be exercised
only through the Depositary subject to the Applicable Procedures. The Trustee, the Paying
Agent and the Debenture Registrar shall be entitled to rely and shall be fully protected
in relying upon information furnished by the Depositary with respect to its members,
participants and any beneficial owners. The Trustee, the Paying Agent and the Debenture
Registrar shall be entitled to deal with the Depositary, and any nominee thereof, that is
the registered Holder of any Global Debenture for all purposes of this Indenture relating
to such Global Debenture (including the payment of principal, premium, if any, and
interest and additional amounts, if any, and the giving of instructions or directions by
or to the owner or Holder of a beneficial ownership interest in such Global Debenture) as
the sole Holder of such Global Debenture and shall have no obligations to the beneficial
owners thereof. None of the Trustee, the Paying Agent or the Debenture Registrar shall
have any responsibility or liability for any acts or omissions of the
Depositary with respect to such Global Debenture, for the records of any



42









 







such
Depositary, including records in respect of beneficial ownership interests in respect of
any such Global Debenture, for any transactions between the Depositary and any Agent
Member or between or among the Depositary, any such Agent Member and/or any Holder or
owner of a beneficial interest in such Global Debenture, or for any transfers of
beneficial interests in any such Global Debenture.




     Notwithstanding the foregoing, with respect to any Global Debenture, 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 any
Depositary (or its nominee), as a Holder, with respect to such Global Debenture or shall
impair, as between such Depositary and owners of beneficial interests in such Global
Debenture, the operation of customary practices governing the exercise of the rights of
such Depositary (or its nominee) as Holder of such Global Debenture.



     (b) Non-Global Debentures. Debentures issued upon the events described in Section 3.03(a)(ii)
shall be in definitive, fully registered form, without interest coupons.



     Section 3.04. Repurchase and Cancellation. To the extent permitted by law, the Company may
repurchase Debentures in open-market purchases or negotiated transactions without giving prior
notice to Holders. The Company may surrender any Debentures repurchased by the Company to the
Trustee for cancellation in accordance with Section 3.05, and any such Debentures repurchased by
the Company shall be deemed to be no longer Outstanding.



     Section 3.05. Cancellation of Debentures Paid, Etc. All Debentures surrendered for the
purpose of payment, conversion, exchange or registration of transfer, shall, if surrendered to the
Company or any Paying Agent or any Debenture 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
Debentures shall be issued in lieu thereof except as expressly permitted by any of the provisions
of this Indenture. The Trustee shall dispose of canceled Debentures in accordance with its
customary procedures and, after such disposal, shall deliver a certificate of such disposal to the
Company, at the Company’s written request. If the Company shall acquire any of the Debentures, such
acquisition shall not operate as satisfaction of the debt represented by such Debentures unless and
until the same are delivered to the Trustee for cancellation.



     Section 3.06. CUSIP Numbers. The Company shall obtain a separate CUSIP, ISIN or other
similar number (if then generally in use) for each series of Debentures, and, if so, the Trustee
shall use CUSIP numbers in all notices to Holders as a convenience to Holders of the Debentures;
provided, that any such notice may state that no representation is made as to the correctness of
such
numbers either as printed on the Debentures or on such notice and that reliance



43









 







may be placed
only on the other identification numbers printed on the Debentures. The Company will promptly
notify the Trustee and the Initial Purchaser in writing of any change in the CUSIP, ISIN or other
similar numbers.



     Section 3.07. Persons Deemed Owners. Prior to due presentment of a Debenture for
registration of transfer, the Company, the Trustee, any Paying Agent and any agent of the Company,
the Trustee or any Paying Agent may treat the Person in whose name such Debenture is registered as
the owner of such Debenture for the purpose of receiving payment of principal of and interest on
such Debenture and for all other purposes whatsoever, whether or not such Debenture be overdue, and
neither the Company, the Trustee, any Paying Agent nor any agent of the Company, the Trustee or any
Paying Agent shall be affected by notice to the contrary.



     Section 3.08. Special Record Date. Any interest on any Debenture that is payable but not
punctually paid or duly provided for on any Interest Payment Date (“Defaulted Interest”) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of his,
her or its having been such a Holder, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (a) or (b) below:



     (a) The Company may elect to make payment of any Defaulted Interest to Holders in whose names
the Debentures are registered at the close of business on a special record date for the payment of
such Defaulted Interest (a “Special Record Date”), which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the Defaulted Interest proposed to be paid on
each Debenture and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Holders 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 15 calendar days and not less than 10 calendar days prior to the date of the
proposed payment and not less than 10 calendar days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage
prepaid, to the Holders of the Debentures at their addresses as they appear in the Debenture
Register, not less than 10 calendar days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Debentures (or
their predecessor Debentures) are registered at the close
of business on such Special Record Date and shall no longer be payable pursuant to the
following clause (b).



44









 





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



ARTICLE 4

Particular Covenants of the Company




     Section 4.01. Payment of Principal and Interest. The Company covenants and agrees that it
will cause to be paid the principal of, and accrued and unpaid interest on, each of the Debentures
at the places, at the respective times and in the manner provided herein and in the Debentures.
Each installment of accrued and unpaid interest on the Debentures due on any Interest Payment Date
may be paid by mailing checks for the amount payable to or upon the written order of the Holders
entitled thereto as they shall appear on the registry books of the Company, provided that, at the
application of such Holder in writing to the Debenture Registrar not later than five Business Days
prior to the relevant Interest Payment Date, accrued and unpaid interest on such Holder’s
Debentures shall be paid by wire transfer in immediately available funds to such Holder’s account
in the United States supplied by such Holder from time to time to the Trustee and Paying Agent (if
different from Trustee); provided, further, that payment of accrued and unpaid interest made to the
Depositary shall be paid by wire transfer in immediately available funds in accordance with such
wire transfer instructions and other procedures provided by the Depositary from time to time.



     Section 4.02. Maintenance of Office or Agency. On and after the Commitment Date, the Company
will maintain in New York City, New York an office or agency where the Debentures may be
surrendered for registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Debentures and this Indenture may be
served. The Company will give prompt written notice to the Initial Purchaser and 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 or the office or agency of
the Trustee in New York City, New York.



     The Company may also from time to time designate one or more other offices or agencies where
the Debentures may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations;
provided, that no such designation or rescission shall in any manner relieve the Company of
its obligation to maintain an office or agency in New York City,



45









 







New York for such purposes. The
Company will give prompt written notice to the Initial Purchaser and the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency. The
term Paying Agent includes any such additional or other offices or agencies, as applicable.



     The Company hereby initially designates the Trustee as the Paying Agent, Conversion Agent,
Debenture Registrar and Custodian and the Corporate Trust Office and the office or agency of the
Trustee in New York City, New York 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 Debenture Registrar, the Trustee agrees to mail, or cause to be
mailed, the notices set forth in Section 6.10(a) and the third paragraph of Section 6.11.



     Section 4.03. Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 6.10, 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 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 accrued and unpaid interest on, the Debentures (whether such sums have
been paid to it by the Company) in trust for the benefit of the Holders of the Debentures;




     (ii) that it will give the Trustee notice of any failure by the Company to make any
payment of the principal of, and accrued and unpaid interest on, the Debentures when the
same shall be due and payable; and




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



     The Company shall, on or before each due date of the principal of, or accrued and unpaid
interest on the Debentures, deposit with the Paying Agent a sum sufficient to pay such principal or
accrued and unpaid interest and (unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee
in writing of any failure to take such action, provided that if such deposit is made



46









 







on the
due date, such deposit must be received by the Paying Agent by 11:00 a. m., New York City time, on
such date.



     (b) If the Company shall act as its own Paying Agent, it will, on or before each due date of
the principal of and accrued and unpaid interest on the Debentures, set aside, segregate and hold
in trust for the benefit of the Holders of the Debentures a sum sufficient to pay such principal
and accrued and unpaid interest so becoming due and will notify the Trustee in writing of any
failure to take such action and of any failure by the Company to make any payment of the principal
of and accrued and unpaid interest on the Debentures, 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.



     Section 4.05. Existence. On and after the Commitment Date, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect its existence, or,
following any transaction described in Section 10.01, the legal existence of the resulting,
surviving or transferee Person in accordance with Section 10.02.



     Section 4.06. Reports to Holders.



     (a) On and after the Commitment Date, the Company shall deliver to the Trustee within fifteen
(15) days after the date on which the Company is required to file the same (after giving effect to
all applicable grace periods pursuant to Rule 12b-25 under the Exchange Act) with the SEC pursuant
to its rules and regulations, copies of all quarterly and annual reports and of the information,
documents and other reports, if any, which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act.



     (b) If at any time on and after the Commitment Date the Company is not subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide the
Trustee with annual and quarterly reports containing substantially the same information as would
have been required to be filed with the SEC had the Company continued to have been subject to such
reporting requirements. In such event, such annual and quarterly reports shall be provided at the
times the Company would have been required to provide reports had it continued to have been subject
to such reporting requirements.



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     (c) 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
conclusively rely exclusively on an Officers’ Certificate).



     (d) Documents filed by the Company with the SEC via the EDGAR system will be deemed filed with
the Trustee as of the time such documents are filed via EDGAR.



     (e) On and after the Commitment Date, upon receipt of the written request of any Holder, the
Company shall furnish to such Holder a written statement as to its compliance with the reporting
requirements of Rule 144 under the Securities Act; a copy of its most recent annual report on Form
10-K or quarterly report on Form 10-Q, as the case may be; and such other reports as such Holder
may reasonably request in availing itself of any rule or regulation of the SEC allowing it to sell
the Debentures or the Common Stock issued upon conversion of the Debentures without registration
under the Securities Act.



     Section 4.07. Compliance Certificate; Statements as to Defaults. On and after the Commitment
Date, the Company shall deliver to the Initial Purchaser and the Trustee within 120 calendar days
after the end of each fiscal year of the Company (beginning with the fiscal year ending on December
31, 2009) an Officers’ Certificate stating whether or not the signer thereof has knowledge of any
failure by the Company to comply with all conditions and covenants then required to be performed
under this Indenture and, if so, specifying each such failure and the nature thereof.



     In addition, on and after the Commitment Date, the Company shall deliver to the Trustee and
the Initial Purchaser, as soon as possible and in any event within 10 days after the Company
becomes aware of the occurrence of any Event of Default or Default, an Officers’ Certificate
setting forth the details of such Event of Default or Default, its status and the action which the
Company proposes to take with respect thereto.



     Any notice required to be given under this Section 4.07 shall be delivered to the Trustee at
its Corporate Trust Office and to the Initial Purchaser in accordance with Section 1.03.



     Section 4.08. Further Instruments and Acts. Upon request of the Trustee or as necessary, the
Company will execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of this Indenture.



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ARTICLE 5

Remedies




     Section 5.01. Events of Default.



     "Event of Default,” wherever used herein, means on and after the Commitment Date, any one of
the following events with respect to the Debentures (whatever the reason for such Event of Default
or whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of any administrative
or governmental body):



     (a) default in the payment of any interest on any Debenture when such interest becomes due and
payable, and continuance of such default for a period of 30 days; or



     (b) default in the payment of principal of any Debenture, when such principal becomes due and
payable at Maturity; or



     (c) default by the Company or any of its Subsidiaries under any instrument or instruments
evidencing Indebtedness (other than the Debentures) having an outstanding principal amount
exceeding $50.0 million (or its equivalent in any other currency or currencies) that has caused the
holders thereof to declare such Indebtedness to be due and payable prior to its stated maturity; or



     (d) default by the Company or any of its Subsidiaries in the payment of any Indebtedness
(other than in respect of Swap Contracts) for money borrowed by the Company or any of its
Subsidiaries, as applicable, in an aggregate principal amount exceeding $50.0 million (or its
equivalent in any other currency or currencies) when such Indebtedness becomes due and payable at
final maturity; or



     (e) a final judgment for a payment exceeding $50.0 million (excluding any amounts covered by
insurance) is rendered against the Company or any of its Subsidiaries, which judgment is not
vacated, discharged or stayed within 30 days after (i) the date on which the right to appeal
thereof has expired if no such appeal has commenced, or (ii) the date on which all rights to appeal
have been extinguished; or



     (f) default in the performance, or breach, of any covenant or agreement of the Company in
respect of the Debentures contained in this Indenture or the Debentures (other than a covenant or
agreement a default in the performance or the breach of which is elsewhere in this Section 5.01
specifically dealt with), and continuance of such default or breach for a period of 60 days (or (i)
solely in the case of the covenant set forth in Section 4.06 and if applicable, the covenant set
forth in Section 314(a) of the Trust Indenture Act, 120 days, and (ii) solely in the case of the
Company’s failure to comply with its obligation to convert Debentures in accordance with the
Indenture upon conversion of any Debentures or perform



49









 







the covenants set forth under Article 12, 30 days) after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Outstanding Debentures (acting together as a
single class), a written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a “Notice of Default” hereunder; or



     (g) a Change of Control occurs if, not later than 90 days following the occurrence of such
Change of Control (or with respect to any Change of Control that occurs prior to the Issue Date of
the first series of Debentures, 90 days following the Issue Date of such first series of
Debentures), there has been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 10% in aggregate principal amount of
the Outstanding Debentures (acting together as a single class), a written notice declaring such
Change of Control an Event of Default; or



     (h)




     (i) Any involuntary Insolvency Proceeding is commenced or filed against the Company
or any of its Significant Subsidiaries, or any writ, judgment, warrant of attachment,
execution or similar process, is issued or levied against a substantial part of the
Company’s or any Significant Subsidiary’s properties, and any such proceeding or petition
shall not be dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded within 60 days after
commencement, filing or levy; or




     (ii) the Company or any of its Significant Subsidiaries admits the material
allegations of a petition against it in any Insolvency Proceeding, or an order for relief
(or similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or




     (iii) the Company or any of its Significant Subsidiaries acquiesces in the
appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in
possession (or agent therefor), or other similar Person for itself or a substantial
portion of its property or business; or




     (iv) any of the Company’s Significant Subsidiaries shall become subject to any
conservation, rehabilitation or liquidation order, directive or mandate issued by any
Governmental Authority; or



     (i) the Company or any of its Significant Subsidiaries (i) ceases or fails to be solvent, or
generally fails to pay, or admits in writing its inability to pay, its debts as they become due,
subject to applicable grace periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the ordinary course; (iii) commences any Insolvency
Proceeding with respect to itself; (iv) applies for or consents to the appointment of a receiver,
trustee, custodian,



50









 







conservator, liquidator, mortgagee in possession (or agent therefor), or other similar Person
for itself or for a substantial part of its assets, or (v) takes any action to effectuate or
authorize any of the foregoing.



     Section 5.02. Acceleration of Maturity; Rescission and Annulment.



     If an Event of Default with respect to Debentures at the time Outstanding (other than an Event
of Default specified in clause (h) or (i) of Section 5.01) occurs and is continuing, then the
Trustee or the Holders of more than 50% in aggregate principal amount of the Outstanding Debentures
(acting together as a single class) may declare the principal of all Outstanding Debentures and all
accrued and unpaid interest on such Debentures, to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders), and upon any such declaration
such principal and accrued and unpaid interest, if any, shall become immediately due and payable;
provided, that, if the Trustee or the Holders of more than 50% in aggregate principal amount of the
Outstanding Debentures (acting together as a single class) accelerates the maturity of the
Outstanding Debentures in connection with an Event of Default specified in Section 5.01(g), such
acceleration will be effective on the later of (i) if applicable, the tenth Trading Day immediately
following the occurrence of such Change of Control that also constitutes a Make Whole Adjustment
Event (or with respect to any Change of Control that also constitutes a Make Whole Adjustment Event
that occurs prior to the Issue Date of the first series of Debentures, the tenth Trading Day
immediately following the Issue Date of such first series of Debentures) and (ii) the date the
Trustee or such Holders deliver such declaration of acceleration to the Company. In connection with
an acceleration pursuant to Section 5.01(g), the Company or the Trustee (as directed by the
Company) shall provide written notice of such acceleration to all Holders and the Initial Purchaser
no later than one Business Day following the receipt by the Company of the declaration of
acceleration from the Trustee or the Holders of more than 50% in aggregate principal amount of the
Outstanding Debentures (acting together as a single class).



     If an Event of Default specified in clause (h) or (i) of Section 5.01 occurs, all unpaid
principal of and accrued and unpaid interest on the Outstanding Debentures shall ipso facto become
and be immediately due and payable without any declaration or other act on the part of the Trustee
or any Holder of any Debenture.



     At any time after a declaration of acceleration with respect to the Debentures has been made
but before a judgment or decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, if all Events of Default with respect to the Debentures have
been cured (other than the nonpayment of principal of the Debentures which has become due solely by
reason of the declaration of acceleration), the Holders of a majority in aggregate principal amount
of the Outstanding Debentures (acting together as a single class), by written notice to the Company
and the Trustee, may rescind and



51









 







annul such declaration and its consequences. Any such rescission and annulment shall be
binding on Holders of any series of Debentures issued after the date such notice is delivered to
the Company and the Trustee.



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



     Section 5.03. Unconditional Right of Holders to Receive Principal and Interest and to Convert
their Debentures. Notwithstanding any other provision in this Indenture, the Holder of any
Debenture shall have the right, which is absolute and unconditional, to receive payment of the
principal of and interest on such Debenture on the Maturity Date, and to convert such Debenture in
accordance with Article 12, and to institute suit for the enforcement of any such payment and right
to convert, and such rights shall not be impaired without the consent of such Holder.



     Section 5.04. Waiver of Past Defaults. The Holders of a majority in principal amount of the
Outstanding Debentures (acting together as a single class) may on behalf of the Holders of all of
the Debentures, including any series of Debentures issued thereafter, waive any past Default or
Event of Default hereunder and its consequences, except a Default or Event of Default (A) in the
uncured payment of the principal of or interest on any Debenture or the uncured failure to deliver
shares of Common Stock or Reference Property due upon conversion of any Debenture, or (B) in
respect of a covenant or provision hereof which under Article 8 cannot be modified or amended
without the consent of the Holder of each Outstanding Debenture affected (which nonetheless may be
waived by the Holders affected thereby).



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



     Section 5.05. Waiver of Stay, Usury or Extension Laws. The Company covenants (to the extent
that it may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, usury or extension law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it shall not hinder, delay or impede by
reason of such law the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.



     Section 5.06. Conditions to Enforcement. Except to enforce the right to receive payment of
principal and interest when due or to receive shares of Common Stock or Reference Property, as the
case may be, due to it upon



52









 







conversion, no Holder may pursue any remedy with respect to this Indenture or the Debentures
unless:



     (a) such Holder has previously given the Trustee written notice that an Event of Default is
continuing;



     (b) Holders of at least 25% principal amount of the Outstanding Debentures (acting together as
a single class) have made a written request of the Trustee to pursue the remedy;



     (c) such Holders have offered the Trustee security or indemnity reasonably satisfactory to it
against any loss, liability or expense;



     (d) the Trustee has not complied with such request within 10 days after the receipt of the
request and the offer of security or indemnity; and



     (e) the Holders of a majority principal amount of the Outstanding Debentures (acting together
as a single class) have not given the Trustee a direction that, in the opinion of the Trustee, is
inconsistent with such request within such 10-day period.



     Notwithstanding the foregoing, if an Event of Default specified under Section 5.01(g) occurs
and is continuing with respect to the Debentures, Holders may pursue the remedy described in the
first paragraph of Section 5.02.



     Section 5.07. Control by Holders. The Holders of a majority in principal amount of the
Outstanding Debentures (acting together as a single class) may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee hereunder, or of exercising any
trust or power hereby conferred upon the Trustee with respect to the Debentures; provided, however,
that, subject to the provisions of Section 6.01, the Trustee shall have the right to decline to
follow any such direction if the Trustee being advised by counsel determines that the action so
directed may not lawfully be taken or would be unduly prejudicial to Holders not joining in such
direction or would involve the Trustee in personal liability.



     Section 5.08. Notice of Change of Control. The Company shall notify each of the Holders, the
Initial Purchaser and the Trustee of the occurrence of Change of Control within 10 days after the
Company has knowledge of such event or transaction, such notice to include a description of the
transaction or transactions that constitute the Change of Control. In addition, the Company shall
simultaneously issue a press release containing the information in the previous sentence and make
such press release available on the Company’s website.



     Section 5.09. Undertaking for Costs. In any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted
by it as Trustee, a court may require any party



53









 







litigant in such suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment in any suit
instituted by the Company or in any suit for the enforcement of the right to convert any Debenture
in accordance with Article 12.



     Section 5.10. Collection of Indebtedness and Suits for Enforcement by Trustee.



     The Company covenants that if:



     (a) default is made in the payment of any interest on any Debenture when such interest becomes
due and payable and such default continues for a period of 30 days, or



     (b) default is made in the payment of the principal of any Debenture at the Maturity thereof,


the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Debentures, the whole amount then due and payable on such Debentures for principal and interest,
and, in addition thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel.




     If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.



     Section 5.11. Trustee May File Proofs of Claim.



     In case of any judicial proceeding relative to the Company (or any other obligor upon the
Debentures), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the



54









 







Trustee any amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.06.



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



ARTICLE 6

Concerning the Trustee




     Section 6.01. 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 which 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 and is
known to a Responsible Officer of the Trustee) the Trustee shall (a) mail to each Holder and the
Initial Purchaser notice of the Event of Default within 10 days after it receives notice thereof
from the Company; provided, that the Trustee may withhold notice (except in respect of an Event of
Default under Sections 5.01(a) and (b)) if and so long as a committee of Responsible Officers of
the Trustee in good faith determines that withholding notice is in the interests of the Holders,
and (b) exercise such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs; provided, that if an Event of Default
occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or
powers under this Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee indemnity or security reasonably satisfactory to it against loss,
liability or expense.



     No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own grossly negligent action, its own grossly 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 which may have occurred:




     (i) the duties and obligations of the Trustee shall be determined solely by the
express provisions of this Indenture and, after it has been qualified thereunder, 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





55












 






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 and 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 (but need not
confirm or investigate the accuracy of mathematical calculations or other facts,
statements, opinions or conclusions stated therein);



     (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 it shall be proved that the Trustee was
grossly 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 direction of the Holders of not less than a majority in
principal amount of all series of Debentures then Outstanding (acting together as a single class)
determined as provided herein, relating to 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;



     (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 or any records maintained by any co-registrar with respect to the
Debentures;



     (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 such
Responsible Officer of the Trustee had actual knowledge of such event;



     (g) in the absence of written investment direction from the Company, all cash received by the
Trustee shall be placed in a non-interest bearing trust account. In no event shall the Trustee be
liable for the selection of investments or for investment losses incurred thereon or for losses
incurred as a result of the liquidation of any such investment prior to its stated maturity or the
failure of the



56









 







party directing such investment to provide timely written investment direction, and the
Trustee shall have no obligation to invest or reinvest any amounts held hereunder in the absence of
such written investment direction from the Company; and



     (h) in the event that the Trustee is also acting as Custodian, Debenture Registrar, Paying
Agent or transfer agent hereunder, the rights, privileges, protections, immunities and benefits
afforded to the Trustee pursuant to this Article 6, including, without limitation, its right to be
indemnified, shall also be afforded to such Custodian, Debenture Registrar, Paying Agent or
Transfer Agent.



     None of the provisions contained in this Indenture shall require the Trustee to 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.



     Section 6.02. Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section
6.01:



     (a) the Trustee may conclusively rely and shall be fully protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or
document 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 or Company Order (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;



     (c) the Trustee may consult with counsel and require an Opinion of Counsel and any advice of
such counsel or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith and in 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 Holders pursuant to the
provisions of this Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred
therein or thereby;



     (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, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its



57









 







discretion, may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company, personally or by agent
or attorney at the sole expense of the Company and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation;



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



     (g) the permissive rights of the Trustee enumerated herein shall not be construed as duties;



     (h) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein, upon Officers’
Certificates or Opinions of Counsel 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
(but need not confirm or investigate the accuracy of mathematical calculations or other facts,
statements, opinions or conclusions stated therein);



     (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 Officers’ Certificates, including any person specified as so authorized in any
such certificate previously delivered and not superseded;



     (j) notwithstanding anything in this Indenture to the contrary, in no event shall the Trustee
be liable for any special, indirect, punitive, consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action;



     (k) the Trustee shall not be deemed to have notice or be charged with knowledge of any Default
or Event of Default with respect to the Debentures, unless written notice of such Default or Event
of Default shall have been given to a Responsible Officer of the Trustee by the Company or by any
Holder of the Debentures at the Corporate Trust Office of the Trustee, and such notice references
the Debentures and this Indenture;



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



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



     Section 6.03. No Responsibility for Recitals, Etc. The recitals contained herein and in the
Debentures (except in the Trustee’s certificate of authentication) shall be taken as the statements
of the Company, and the Trustee or any Authenticating Agent 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 Debentures. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of any Debentures or the proceeds of any
Debentures authenticated and delivered by the Trustee in conformity with the provisions of this
Indenture or the proceeds thereof. The Trustee shall not be responsible or liable for any loss
suffered in connection with any investment of funds made by it in accordance with this Indenture or
at the direction of the Company. Except for information provided by the Trustee concerning the
Trustee, the Trustee shall have no responsibility for any information in any offering memorandum,
prospectus or other disclosure material distributed with respect to the Debentures.



     Section 6.04. Trustee, Paying Agents or Registrar May Own Debentures. The Trustee, any
Authenticating Agent, any Paying Agent, any Debenture Registrar or any other agent of the Company,
in its individual or any other capacity, may become the owner or pledgee of Debentures with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Debenture
Registrar or such other agent.



     Section 6.05. Monies to be Held in Trust. 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. The Trustee shall be under no liability for interest on any money received
by it hereunder except as may be agreed from time to time by the Company and the Trustee.



     Section 6.06. Compensation and Expenses of Trustee. The Company covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for
all services rendered by it hereunder in any capacity (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) as mutually agreed to in
writing between the Trustee and the Company, and the Company will pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements



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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 expenses and
disbursements of its agents and counsel and of all persons not regularly in its employ) except any
such expense, disbursement or advance as may arise from its gross negligence or willful misconduct.
The Company also covenants to indemnify the Trustee or any predecessor Trustee in any capacity
under this Indenture and any other document or transaction entered into in connection herewith and
its officers, directors, agents, employees and any authenticating agent for, and to hold them
harmless against, any loss, liability, claim, damage or expense, including taxes (other than taxes
based upon, measured by or determined by income of the Trustee) incurred without gross negligence
or willful misconduct on the part of the Trustee, its officers, directors, agents or employees, or
such agent or authenticating agent, as the case may be, and arising out of or in connection with
the acceptance or administration of this trust or in any other capacity hereunder, including the
costs and expenses of defending themselves against any claim (whether asserted by the Company, or
any Holder or any other Person) or liability in connection with the exercise or performance of any
of its powers or duties hereunder, or in connection with enforcing the provisions of this Section.
The obligations of the Company under this Section 6.06 to compensate or indemnify the Trustee and
to pay or reimburse the Trustee for expenses, disbursements and advances shall be secured by a lien
prior to that of the Debentures upon all property and funds held or collected by the Trustee as
such, except funds held in trust herewith for the benefit of the holders of particular Debentures
prior to the date of the accrual of such unpaid compensation or identifiable claim. The Trustee’s
right to receive payment of any amounts due under this Section 6.06 shall not be subordinate to any
other liability or debt of the Company. The obligation of the Company under this Section 6.06 shall
survive the satisfaction and discharge of this Indenture and the earlier resignation or removal or
the Trustee. The Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld. The indemnification provided in this Section 6.06 shall extend
to the officers, directors, agents and employees of the Trustee.



     In addition to, but without prejudice to its other rights under this Indenture, when the
Trustee and its agents and any authenticating agent incur expenses or render services after an
Event of Default specified in Section 5.01(h) and Section 5.01(i) with respect to the Company
occurs, the expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of administration under any
applicable federal or state bankruptcy, insolvency or other similar law.



     “Trustee” for purposes of this Section 6.06 shall include any predecessor Trustee; provided,
however, that the negligence, willful misconduct or bad faith of any Trustee hereunder shall not
affect the rights of any other Trustee hereunder.



     Section 6.07. Officers’ Certificate as Evidence. Except as otherwise provided in Section
7.01, whenever in the administration of the provisions of this



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



     Section 6.08. 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 6.09. 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 $50,000,000. If such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.



     Section 6.10. Resignation or Removal of Trustee.



     (a) The Trustee may at any time resign by giving written notice of such resignation to the
Company and by mailing notice thereof to the Initial Purchaser and the Holders at their addresses
as they shall appear on the Debenture Register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed
and have accepted appointment sixty (60) days after the mailing of such notice of resignation to
the Initial Purchaser and the Holders, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or the Initial Purchaser or any Holder who
has been a bona fide Holder of a Debenture or Debentures for at least six months may 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:



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     (i) the Trustee shall fail to comply with Section 6.08 within a reasonable time after
written request therefor by the Company, the Initial Purchaser or by any Holder who has
been a bona fide Holder of a Debenture or Debentures for at least six (6) months; or




     (ii) the Trustee shall cease to be eligible in accordance with the provisions of
Section 6.09 and shall fail to resign after written request therefor by the Company or by
any such Holder; or




     (iii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or 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 by a Board Resolution remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, the Initial Purchaser or any Holder who has been a bona fide Holder of a
Debenture or Debentures for at least six (6) 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. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor trustee.




     (c) The Holders of a majority in aggregate principal amount of the Outstanding Debentures
(acting together as a single class) may at any time remove the Trustee and nominate a successor
trustee which shall be deemed appointed as successor trustee unless within ten (10) days after
notice to the Company of such nomination the Company objects thereto, in which case the Trustee so
removed or any Holder, upon the terms and conditions and otherwise as in Section 6.10(a) provided,
may petition any court of competent jurisdiction for an appointment of a successor trustee.



     (d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant
to any of the provisions of this Section 6.10 shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 6.11.



     Section 6.11. Acceptance by Successor Trustee. Any successor trustee appointed as provided
in Section 6.10 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



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named as trustee herein; but, nevertheless, on the written request of the Company or of the
successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of Section 6.06, 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 Debentures, to secure any amounts then due it pursuant to the provisions of Section
6.06.



     No successor trustee shall accept appointment as provided in this Section 6.11 unless at the
time of such acceptance such successor trustee shall be qualified under the provisions of Section
6.08 and be eligible under the provisions of Section 6.09.



     Upon acceptance of appointment by a successor trustee as provided in this Section 6.11, each
of the Company and the successor trustee, at the written direction and at the expense of the
Company shall mail or cause to be mailed notice of the succession of such trustee hereunder to the
Holders at their addresses as they shall appear on the Debenture Register. If the Company fails to
mail such notice within ten (10) days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the Company.



     Section 6.12. Succession by Merger, Etc. Any corporation or other entity into which the
Trustee may be merged or converted or with which it may be consolidated, or any corporation or
other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation or other entity succeeding to all or substantially all of the corporate
trust business of the Trustee (including the administration of this Indenture), shall be the
successor to the Trustee hereunder without the execution or filing of any paper or any further act
on the part of any of the parties hereto, provided that in the case of any corporation or other
entity succeeding to all or substantially all of the corporate trust business of the Trustee such
corporation or other entity shall be qualified under the provisions of Section 6.08 and eligible
under the provisions of Section 6.09.



     In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture, any of the Debentures 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 Debentures so
authenticated, and in case at that time any of the Debentures shall not have been authenticated,
any successor to the Trustee or an authenticating agent appointed by such successor trustee may
authenticate such Debentures either in the name of any predecessor



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trustee hereunder or in the name of the successor trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Debentures or in this Indenture
provided that the certificate of the Trustee shall have; provided, however, that the right to adopt
the certificate of authentication of any predecessor Trustee or to authenticate Debentures in the
name of any predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.



     Section 6.13. Limitation on Rights of Trustee as Creditor. If and when the Trustee shall be
or become a creditor of the Company (or any other obligor upon the Debentures), 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).



     Section 6.14. Trustee’s Application for Instructions from the Company. Any application by
the Trustee for written instructions from the Company (other than with regard to any action
proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders
of the Debentures under this Indenture) may, at the option of the Trustee, set forth in writing any
action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective. The Trustee shall not
be liable for any action taken by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in such application (which date shall
not be less than three (3) Business Days after the date any officer of the Company actually
receives such application, unless any such officer shall have consented in writing to any earlier
date), unless, prior to taking any such action (or the effective date in the case of any omission),
the Trustee shall have received written instructions from the Company in response to such proposal
specifying the action to be taken or omitted.



ARTICLE 7

Concerning the Holders




     Section 7.01. Action By Holders. Whenever in this Indenture it is provided that the Holders
of a specified percentage in aggregate principal amount of the Debentures 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 (an “Act”)), (i) such specified percentage relates to the aggregate
principal amount of all series of Debentures then Outstanding (acting together as a single class)
and (ii) the fact that at the time of taking any Act, the Holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor
executed by Holders in person or by agent or proxy appointed in writing, or (b) by the record of
the Holders voting in favor thereof at any meeting of Holders duly called and held in accordance
with



64









 







the provisions of Article 7, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of Holders and, except as herein otherwise expressly provided, an Act
shall become effective when such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
Whenever the Company or the Trustee solicits the taking of any Act by the Holders of the
Debentures, the Company or the Trustee may fix, but shall not be required to, in advance of such
solicitation, a date as the record date for determining Holders entitled to take such Act. The
record date if one is selected shall be not more than fifteen (15) days prior to the date of
commencement of solicitation of such action. Any request, demand, authorization, direction, notice
consent, waiver or other action by a Holder of any Debenture shall bind every future Holder of the
same Debenture and the Holders of any series of Debentures issued thereafter, and the Holder of
every Debenture issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted, or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Debenture.



     Section 7.02. Proof of Execution by Holders. Subject to Section 11.05, proof of the
execution of any instrument by a Holder or his 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 Debentures shall be proved by
the Debenture Register or by a certificate of the Debenture Registrar. The record of any Holders’
meeting shall be proved in the manner provided in Section 11.06.



     Section 7.03. Revocation of Consents; Future Holders Bound. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 7.01, of the taking of any action by
the Holders of the percentage in aggregate principal amount of the Debentures specified in this
Indenture in connection with such action, any Holder of a Debenture that is shown by the evidence
to be included in the Debentures 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 7.02, revoke such action so far as concerns such Debenture.



ARTICLE 8

Supplemental Indentures




     Section 8.01. Supplemental Indentures Without Consent of Holders of Debentures.



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     On and after the Commitment Date, without the consent of any Holders of Debentures, the
Company, when authorized by a Board Resolution, and the Trustee, upon receipt of a Company Order,
at any time and from time to time, may waive any provision of this Indenture or enter into one or
more indentures supplemental hereto for any of the following purposes (provided that any such
amendment or supplement shall apply to all series of Debentures (whether or not Outstanding)):



     (a) to cure any inconsistency under this Indenture which shall not adversely affect the
interests of the Holders of Debentures; or



     (b) to provide for the assumption of the Company’s obligations under this Indenture by a
successor Person upon any merger, consolidation or asset transfer by the Company permitted under
this Indenture; or



     (c) to secure the Debentures; or



     (d) to add guarantees with respect to the Debentures; or;



     (e) to comply with any requirement in connection with the qualification of this Indenture
under the Trust Indenture Act; or



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



     (g) to add any additional Events of Default with respect to the Debentures; or



     (h) to provide for uncertificated Debentures in addition to or in the place of certificated
Debentures; or



     (i) to make any change that benefits the Holders of Debentures; or



     (j) to conform any provision contained herein, in any supplemental indenture or in any
Debenture to the description provided in the Offering Memorandum; or



     (k) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Debentures in accordance with the provisions of this Indenture.



     Upon receipt of a Company Order, accompanied by a Board Resolution authorizing the execution
of any such supplemental indenture, the Trustee shall join with the Company in the execution of any
supplemental indenture authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations that may be therein contained.



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     Section 8.02. Supplemental Indentures with Consent of Holders of Debentures.



     After the Issue Date of the first series of Debentures, with the written consent of the
Holders of not less than a majority in aggregate principal amount of the Outstanding Debentures
(acting together as a single class), by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by or pursuant to a Company’s Board Resolution) and the
Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Debentures under this Indenture or under
the Debentures; provided, however, that no such supplemental indenture, without the consent of the
Holder of each Outstanding Debenture affected thereby, shall:



     (a) make any change in the percentage in aggregate principal amount of the Outstanding
Debentures, the consent of whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of this Section 8.02 for voting; or



     (b) reduce the rate of interest or change the stated time for payment of interest on any
Debenture; or



     (c) reduce the principal amount of any Debenture or change its Maturity Date; or



     (d) change the currency in which any payments with respect to any Debenture are payable; or



     (e) impair the Holder’s right to institute suit for the enforcement of any payment on the
Debentures; or



     (f) waive a continuing Default or Event of Default regarding any payment on the Debentures; or



     (g) make any change that adversely affects the conversion rights or conversion terms of the
Debentures.



     For the avoidance of doubt, the only consent required to approve any of the foregoing changes
pursuant to clauses (a) through (g) is the consent of the Holder of each Outstanding Debenture
affected thereby; the consent of the Holders of a majority in aggregate principal amount of
Outstanding Debentures (acting together as a single class) is not additionally required.



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



     Section 8.03. Effect of Supplemental Indentures. Any supplemental indenture executed pursuant
to the provisions of this Article 8 shall comply with the Trust Indenture Act, as then in effect,
provided that this Section 8.03 shall not require such supplemental 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 such supplemental 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. Upon the
execution of any supplemental indenture pursuant to the provisions of this Article 8, 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, including Holders of any series of Debentures issued
after the date of such supplemental indenture, 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 8.04. Notation on Debentures. Debentures authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this Article 8 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 Debentures so modified as to
conform, in the opinion of the Trustee and 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 15.11) and delivered in exchange for the Debentures
then Outstanding, upon surrender of such Debentures then Outstanding.



     Section 8.05. Evidence of Compliance of Supplemental Indenture to be Furnished to the
Trustee.



     In addition to the documents required by Section 15.07, the Trustee shall receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article 8.



     Section 8.06. Notice of Supplemental Indenture.



     Upon the effectiveness of a supplemental indenture entered into under Section 8.01 or Section
8.02, the Company shall mail to each Holder and the



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Initial Purchaser a notice briefly describing the amendment; provided, however, that the
failure to give such notice with respect to any such amendment not requiring the consent of all
Holders, or any defect therein, shall not impair or affect the validity of such amendment.



ARTICLE 9

Holders Lists and Reports by Trustee and Company




     Section 9.01. List of Holders. On and after the Commitment Date, the Company covenants and
agrees that it will furnish or cause to be furnished to the Trustee and the Initial Purchaser,
semi-annually, not more than fifteen (15) days after each June 30 and December 31 in each year
beginning with December 31, 2009, and at such other times as the Trustee may request in writing,
within thirty (30) days after receipt by the Company of any such request (or such lesser time as
the Trustee may reasonably request in order to enable it to timely provide any notice to be
provided by it hereunder), a list in such form as the Trustee may reasonably require of the names
and addresses of the Holders as of a date not more than fifteen (15) days (or such other date as
the Trustee may reasonably request in order to so provide any such notices) prior to the time such
information is furnished, except that no such list need be furnished so long as the Trustee is
acting as Debenture Registrar.



     Section 9.02. Preservation of Information.



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



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



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



     Section 9.03. Reports by Trustee. Within 60 days after each May 15 beginning with the May 15
following the Commitment Date, the Trustee shall transmit to Holders and the Initial Purchaser such
reports concerning the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant thereto.



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ARTICLE 10

Consolidation, Merger, Sale, Conveyance and Lease




     Section 10.01. Company May Consolidate, Etc. on Certain Terms.



     On and after the Commitment Date, and subject to the provisions of Section 10.02, the Company
shall not (i) consolidate with or merge with or into any Person or sell, convey, transfer or lease
its consolidated assets and properties substantially as an entirety, to any other Person in any one
transaction or a series of related transactions; or (ii) permit any Person to consolidate with or
merge into the Company, unless:



     (a) if the Company is not the surviving Person (such Person, the “Successor Company”), then
the Successor Company formed by such consolidation or into which the Company is merged or the
Person to which the Company’s properties and assets are so sold, conveyed, leased or transferred
shall be a corporation or limited liability company organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia; provided that the
Successor Company shall execute and deliver to the Trustee a supplemental indenture expressly
assuming all of the Company’s obligations with respect to the Debentures, including, among other
things, the payment when due of the principal of and interest on the Debentures and the performance
of each of the Company’s other covenants under the Indenture; and



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



     Upon any such consolidation, merger, sale, conveyance, transfer or lease, the Successor
Company shall succeed to, and may exercise every right and power of, the Company under this
Indenture.



     Section 10.02. Successor Corporation to be Substituted. In case of any such consolidation,
merger, sale, conveyance, transfer or lease and upon the assumption by the Successor Company, by
supplemental indenture, executed and delivered to the Trustee (with a copy to the Initial
Purchaser) and satisfactory in form to the Trustee, of the due and punctual payment of the
principal of and accrued and unpaid interest on all of the Debentures, the due and punctual
settlement of the conversion of the Debentures and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Company, such Successor Company
shall succeed to and be substituted for the Company and, except in the case of a lease of all or
substantially all of the Company’s consolidated assets, the Company shall be released from those
obligations, with the same effect as if it had been named herein as the party of the first part.
Such Successor Company thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company any or all of the Debentures issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee; and, upon the




70











 





order of such Successor Company instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or
cause to be authenticated and delivered, any Debentures which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and any Debentures
which such Successor Company thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All the Debentures so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Debentures theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Debentures had been issued at the date of the
execution hereof. In the event of any such consolidation, merger, sale, conveyance or transfer, the
Person named as the “Company” in the first paragraph of this Indenture or any successor which shall
thereafter have become such in the manner prescribed in this Article 10 may be dissolved, wound up
and liquidated at any time thereafter and such Person shall be released from its liabilities as
obligor and maker of the Debentures and from its obligations under this Indenture.



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



     Section 10.03. Officers’ Certificate and Opinion of Counsel to be Given Trustee. No merger,
consolidation, sale, conveyance, transfer or lease shall be effective unless the Trustee shall
receive an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance, transfer or lease and any such assumption complies with
the provisions of this Article 10.



ARTICLE 11

Holders’ Meetings




     Section 11.01. Purpose of Meetings. A meeting of Holders of all series of Debentures then
Outstanding may be called at any time and from time to time pursuant to the provisions of this
Article 11 for any of the following purposes:



     (a) to give any notice to the Company or to the Trustee or to give any directions to the
Trustee permitted under this Indenture, or to consent to the waiving of any Default or Event of
Default hereunder and its consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article 5;



     (b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of
Article 6;



     (c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to
the provisions of Article 8; or



71









 





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



     Section 11.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of
Holders to take any action specified in Section 11.01, to be held at such time and at such place as
the Trustee shall determine. Notice of every meeting of the Holders, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at such meeting and the
establishment of any record date pursuant to Section 7.01, shall be mailed to Holders of such
Debentures at their addresses as they shall appear on the Debenture Register. Such notice shall
also be mailed to the Company and the Initial Purchaser. Such notices shall be mailed not less than
twenty (20) nor more than ninety (90) days prior to the date fixed for the meeting.



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



     Section 11.03. Call of Meetings by Company or Holders. In case at any time the Company,
pursuant to a resolution of its Board of Directors, or the Holders of at least 10% in aggregate
principal amount of the Debentures then Outstanding (acting together as a single class), shall have
requested the Trustee to call a meeting of Holders, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within twenty (20) days after receipt of such request, then the Company or
such Holders may determine the time and the place for such meeting and may call such meeting to
take any action authorized in Section 11.01, by mailing notice thereof as provided in Section
11.02.



     Section 11.04. Qualifications for Voting. To be entitled to vote at any meeting of Holders a
Person shall (a) be a Holder of one or more Debentures on the record date pertaining to such
meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or
more Debentures. The only Persons who shall be entitled to be present or to speak at any meeting of
Holders shall be the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the Company and its
counsel.



     Section 11.05. Regulations. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders,
in regard to proof of the holding of Debentures and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and examination of proxies,



72









 







certificates and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.



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



     At any meeting of Holders, each Holder or proxyholder shall be entitled to one vote for each
$1,000 principal amount of Debentures held or represented by it; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Debenture challenged as not Outstanding
and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of Debentures held by it or instruments in writing as
aforesaid duly designating it as the proxy to vote on behalf of other Holders. Any meeting of
Holders duly called pursuant to the provisions of Section 11.02 or Section 11.03 may be adjourned
from time to time by the Holders of a majority of the aggregate principal amount of Debentures
represented at the meeting, whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.



     Section 11.06. Voting. The vote upon any resolution submitted to any meeting of Holders
shall be by written ballot on which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the principal amount of the Debentures held or represented by them.
Holders of all series of Outstanding Debentures shall vote together as a single class. The
permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed
as provided in Section 11.02. The record shall show the principal amount of the Debentures voting
in favor of or against any resolution. The record shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to
the Company and the other to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting.



     Any record so signed and verified shall be conclusive evidence of the matters therein stated
absent manifest error or fraud.



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     Section 11.07. No Delay of Rights by Meeting. Nothing contained in this Section 11 shall be
deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under
any of the provisions of this Indenture or of the Debentures.



ARTICLE 12

Conversion of Debentures




     Section 12.01. Conversion Privilege and Conversion Rate.



     (a) Except in circumstances where there is a Conversion Blocker in effect with respect to
those Debentures, upon compliance with the provisions of this Article 12, a Holder shall have the
right, at such Holder’s option, to convert all or any portion (if the portion to be converted is
$1,000 principal amount or an integral multiple thereof) of such Debenture (i) in connection with a
Make Whole Adjustment Event or (ii) at any time from, and including, the Conversion Commencement
Date to, and including, the close of business on the Business Day immediately preceding the
Maturity Date, at a rate (the “Conversion Rate”) of 182.1494 shares of Common Stock (subject to
adjustment by the Company as provided in Section 12.04 and Section 12.01(c)) per $1,000 principal
amount of the Debenture (the “Conversion Obligation”). Notwithstanding the foregoing, Holders’
right to convert their Debentures may be permanently terminated by the Company in accordance with
Section 12.11.



     (b) On and after the Commitment Date, if a Make Whole Adjustment Event occurs, the Company
shall notify the Initial Purchaser, each of the Holders (if any) and the Trustee, within 10 days
after the Company has knowledge of such event or transaction, such notice to include a description
of the Make Whole Adjustment Event and the Holders’ rights to an increased Conversion Rate, if
applicable, in connection therewith. Simultaneously with providing such notice, the Company shall
issue a press release containing the relevant information (and make the press release available on
its website).



     (c) Except in circumstances where there is a Conversion Blocker in effect with respect to
those Debentures, if (and only if) a Holder elects to convert Debentures in connection with a Make
Whole Adjustment Event that occurs prior to the Maturity Date, the Conversion Rate applicable to
each $1,000 principal amount of Debentures so converted shall be increased by an additional number
of shares of Common Stock (the “Additional Shares”) as described below. For purposes of this
subsection (c), a conversion shall be deemed to be “in connection with” a Make Whole Adjustment
Event if such conversion occurs on or after the Effective Date of such Make Whole Adjustment Event
to, and including, the earlier of (i) the close of business on the Business Day immediately
preceding the 30th Scheduled Trading Day immediately following the later of (x)



74









 







the Effective Date of such Make Whole Adjustment Event (unless the Maturity of the Debentures
has been accelerated in connection with such Make Whole Adjustment Event in accordance with Section
5.02) and (y) with respect to each series of Debentures issued after such Effective Date, the Issue
Date of such series of Debentures (unless the Maturity of the Debentures has been accelerated in
connection with such Make Whole Adjustment Event in accordance with Section 5.02), and (ii) the
close of business on the Business Day immediately preceding the Maturity Date.




     (i) The number of Additional Shares by which the Conversion Rate will be increased
shall be determined by the Company by reference to the table attached as Schedule A
hereto, based on the Effective Date and the Stock Price; provided, that if the actual
Stock Price is between two Stock Price amounts in the table or the Effective Date is
between two Effective Dates in the table, the number of Additional Shares shall be
determined by a straight-line interpolation between the number of Additional Shares set
forth for the next higher and next lower Stock Price amounts and the earlier and later
Effective Dates, as applicable, based on a 365-day year; provided further that if (1) the
Stock Price is greater than $60.00 per share of Common Stock (subject to adjustment in the
same manner and at the same time as the Stock Prices set forth in the first row of the
table in Schedule A hereto, as provided in Section 12.01(c)(ii)), no Additional Shares
shall be added to the Conversion Rate, and (2) the Stock Price is less than $4.99 per
share (subject to adjustment in the same manner and at the same time as the Stock Prices
set forth in the first row of the table in Schedule A hereto, as provided in Section
12.01(c)(ii)), no Additional Shares shall be added to the Conversion Rate. In accordance
with the foregoing, in no event shall the Conversion Rate exceed 200.4008 per $1,000
principal amount of Debentures (subject to adjustment in the same manner and at the same
time as set forth in Section 12.04).




     (ii) The Stock Prices set forth in the first row of the table in Schedule A hereto
shall be adjusted by the Company as of any date on which the Conversion Rate of the
Debentures is adjusted. The adjusted Stock Price shall equal the Stock Price applicable
immediately prior to such adjustment, multiplied by a fraction, the numerator of which is
the applicable Conversion Rate in effect immediately prior to the adjustment giving rise
to the Stock Price adjustment and the denominator of which is the Conversion Rate as so
adjusted. The number of Additional Shares within the table shall be adjusted as of any
date on which the Conversion Rate is adjusted and in the same manner as the Conversion
Rate, as set forth in Section 12.04 (other than by operation of an adjustment to the
Conversion Rate by adding Additional Shares).



     (d) The number of Additional Shares by which the Conversion Rate will be increased in
connection with a conversion in connection with a Make Whole



75









 







Adjustment Event shall apply to all series of Debentures (whether or not Outstanding).



     Section 12.02. Exercise of Conversion Privilege.



     (a) The Company shall satisfy the Conversion Obligation with respect to each $1,000 principal
amount of Debentures tendered for conversion in shares of fully paid Common Stock by delivering on
the third Trading Day after the relevant Conversion Date a number of shares of Common Stock equal
to the Conversion Rate in effect on the relevant Conversion Date.



     Notwithstanding the foregoing, if any information required in order to determine an adjustment
to the Conversion Rate pursuant to this Article 12, used to calculate the number of shares of
Common Stock deliverable, will not be available as of the applicable settlement date, the Company
will deliver the additional number of shares of Common Stock resulting from that adjustment on the
third Trading Day after the earliest Trading Day on which such calculation can be made.



     (b) Before any Holder of a Debenture shall be entitled to convert the same as set forth above,
such Holder shall (i) in the case of a Global Debenture, comply with the procedures of the
Depositary in effect at that time and, if required, pay funds equal to interest payable on the next
Interest Payment Date as set forth in Section 12.02(g) and, if required, pay all taxes or duties,
if any, as set forth in Section 12.07 and (ii) in the case of a Debenture issued in certificated
form, (A) complete and manually sign and deliver an irrevocable written notice to the Conversion
Agent in the form set forth under Section 2.03 (or a facsimile thereof) (a “Notice of Conversion”)
at the office of the Conversion Agent and shall state in writing therein the principal amount of
Debentures to be converted and the name or names (with addresses) in which such Holder wishes the
certificate or certificates for any shares of Common Stock to be delivered upon settlement of the
Conversion Obligation to be registered, (B) surrender such Debentures, duly endorsed to the Company
or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of
the Conversion Agent, (C) if required, pay funds equal to interest payable on the next Interest
Payment Date to which such Holder is not entitled as set forth in Section 12.02(g), and (D) if
required, pay all taxes or duties, if any, as set forth in Section 12.07. A Debenture shall be
deemed to have been converted immediately prior to the close of business on the date (the
“Conversion Date”) that the Holder has complied with the requirements set forth in this Section
12.02(b).



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



76









 





     (c) Delivery of the shares of Common Stock or Reference Property, as the case may be, owing in
satisfaction of the Conversion Obligation shall be made by the Company in no event later than the
date specified in Section 12.02(a). The Company shall make such delivery by issuing, or causing to
be issued, and delivering to such Holder, or such Holder’s nominee or nominees, certificates or a
book-entry transfer through the Depositary for the number of full shares of Common Stock to which
such Holder shall be entitled as part of such Conversion Obligation.



     (d) In case any Debenture shall be surrendered for partial conversion, the Company shall
execute and the Trustee shall, as provided in a Company Order, authenticate and deliver to or upon
the written order of the Holder of the Debenture so surrendered, without charge to such Holder, a
new Debenture or Debentures of the same series surrendered in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered Debentures.



     (e) Except as provided in Section 12.04, no adjustment shall be made for dividends on any
shares issued upon the conversion of any Debenture as provided in this Article 12.



     (f) Upon the conversion of an interest in a Global Debenture, the Trustee, or the Custodian at
the direction of the Trustee, shall reduce the principal amount represented thereby in their
records. The Company shall notify the Trustee in writing of any conversion of Debentures effected
through any Conversion Agent other than the Trustee.



     (g) Upon conversion of a Debenture, a Holder shall not receive any separate cash payment for
accrued and unpaid interest except as set forth below, and the Company will not adjust the
Conversion Rate for such Debentures to account for any accrued and unpaid interest or accrued
original issue discount. The Company’s settlement of the Conversion Obligation as described above
shall be deemed to satisfy its obligation to pay the principal amount of the Debenture and accrued
and unpaid interest or accrued original issue discount to, but not including, the Conversion Date.
As a result, accrued and unpaid interest or accrued original issue discount to, but not including,
the Conversion Date shall be deemed to be paid in full upon conversion rather than cancelled,
extinguished or forfeited. Notwithstanding the preceding sentence, if Debentures are converted
after the close of business on a Regular Record Date and prior to the open of business on the
corresponding Interest Payment Date, Holders of such Debentures as of the close of business on the
Record Date shall receive the interest payable on such Debentures on the corresponding Interest
Payment Date, notwithstanding the conversion. Debentures surrendered for conversion during the
period from the close of business on any Regular Record Date to the open of business on the
corresponding Interest Payment Date must be accompanied by payment of an amount equal to the
interest payable on the Debentures so converted; provided, however, that no such payment need be
made (i) if the Company has specified a



77









 







Conversion Termination Date in accordance with Section 12.11 that is after the close of
business on a Regular Record Date and on or prior to the Interest Payment Date immediately
succeeding such Regular Record Date; (ii) to the extent of any overdue interest, if any overdue
interest exists at the time of conversion with respect to such Debenture; or (iii) if the
Debentures are surrendered for conversion after the close of business on the Regular Record Date
immediately preceding the Maturity Date. Except as described above, no payment or adjustment shall
be made for accrued interest on converted Debentures.



     (h) Each conversion will be deemed to have been effected as to any Debentures surrendered for
conversion on the Conversion Date. The Person in whose name any shares of Common Stock shall be
issuable upon such conversion will be deemed to be the holder of record of such shares as of the
close of business on the Conversion Date. Prior to the close of business on the Conversion Date,
the shares of Common Stock issuable upon conversion of the Debentures will not be deemed to be
outstanding for any purpose and such Holder will have no rights with respect to the Common Stock,
including voting rights, rights to respond to tender offers and rights to receive any dividends or
other distributions on the Common Stock, by virtue of holding the Debentures.



     Section 12.03. Fractions of Shares.



     No fractional shares of Common Stock shall be issued upon conversion of any Debenture or
Debentures. If more than one Debenture shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issuable upon conversion thereof shall be computed
on the basis of the aggregate principal amount of all series of Debentures (or specified portions
thereof) so surrendered. Instead of any fractional share of Common Stock that would otherwise be
issuable upon conversion of any Debenture or Debentures, the Company shall increase the number of
shares of Common Stock issuable upon conversion of the Debentures to the next whole share of Common
Stock.



     Section 12.04. Adjustment of Conversion Rate. On and after the Commitment Date, the
Conversion Rate for all Debentures (whether or not Outstanding) shall be adjusted from time to time
by the Company if any of the following events occurs, except that no adjustment to the Conversion
Rate shall be made for an event occurring after the earlier of (i) October 6, 2010 and (ii) the
Issue Date for a series of Debentures having an aggregate principal amount which, when added to the
aggregate principal amount of all presently issued Debentures, equals $293,000,000 if Holders of
the Debentures participate, at the same time and upon the same terms as holders of the Common Stock
and solely as a result of holding the Debentures, and with notice of such participation to Holders
of the Debentures, in any of the events described in this Section 12.04, without having to convert
their Debentures, as if such Holders held a number of shares of Common Stock equal to the
Conversion Rate in effect for such Debentures immediately prior to the record date for such event,
multiplied by the number of $1,000 principal amount of Debentures held by such Holder. All
adjustments to the



78









 







Conversion Rate made pursuant to this Section 12.04 shall apply to all series of Debentures,
whether or not such Debentures have been issued. For the avoidance of doubt, the same Conversion
Rate shall apply to all series of Debentures issued on or after the Commitment Date, as adjusted by
this Section 12.04.



     (a) If the Company issues to all or substantially all holders of the Common Stock a dividend
or distribution exclusively in shares of Common Stock, or if the Company subdivides or combines
shares of Common Stock, the Conversion Rate shall be adjusted based on the following formula:



     



where,




	 	 	 	 	 
	R

	 	=
	 	the Conversion Rate in effect immediately prior to the close
of business on the record date for such dividend or
distribution, or immediately prior to the close of business
on the effective date of such share subdivision or share
combination, as the case may be;
	 
	 	 	 	 
	R'

	 	=
	 	the Conversion Rate in effect immediately after the close of
business on the record date for such dividend or
distribution, or immediately after the close of business on
the effective date of such share subdivision or share
combination, as the case may be;
	 
	 	 	 	 
	OS

	 	=
	 	the number of shares of Common Stock outstanding immediately
prior to the close of business on the record date for such
dividend or distribution, or immediately prior to the close
of business on the effective date of such share subdivision
or share combination, as the case may be; and
	 
	 	 	 	 
	OS'

	 	=
	 	the number of shares of Common Stock outstanding immediately
after such dividend or distribution, or immediately after
the effective date of such share subdivision or share
combination, as the case may be.






Any adjustment made under this Section 12.04(a) shall become effective immediately after the close
of business on the record date for such dividend or distribution, or immediately after the close of
business on the effective date of such share subdivision or share combination. If any dividend or
distribution of the type described in this Section 12.04(a) is declared but not so paid or made, or
any share subdivision or share combination of the type described in this Section 12.04(a) is
announced but the outstanding shares of Common Stock are not subdivided or combined, as the case
may be, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of
Directors determines not to pay such dividend or distribution, or not to subdivide or combine the
outstanding shares of Common Stock, as the case may be, to the Conversion Rate



79









 







that would then be in effect if such dividend, distribution, share subdivision or share combination
had not been declared or announced.



     (b) If the Company distributes to all or substantially all holders of its Common Stock any
rights, options or warrants that allow the holders to purchase (for a period expiring within 60
days) shares of Common Stock at a price per share less than the average of the Closing Sale Prices
of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading
Day immediately preceding the date of announcement of such distribution, the Conversion Rate shall
be increased based on the following formula:



     



where,




	 	 	 	 	 
	R

	 	=
	 	the Conversion Rate in effect immediately prior to the close
of business on the record date for such distribution;
	 
	 	 	 	 
	R'

	 	=	 	the Conversion Rate in effect immediately after the close of
business on the record date for such distribution;
	 
	 	 	 	 
	OS

	 	=
	 	the number of shares of Common Stock outstanding immediately
prior to the close of business on the record date for such
distribution;
	 
	 	 	 	 
	N

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

	 	=
	 	the per-share offering price payable to exercise such rights,
options or warrants for the additional shares, plus the
per-share consideration (if any) the Company receives for
such rights, options or warrants; and
	 
	 	 	 	 
	M

	 	=
	 	the average of the Closing Sale Prices of the Common Stock
over the 10 consecutive Trading Day period ending on, and
including, the Trading Day immediately preceding the date of
announcement of such distribution.





Any adjustment made under this Section 12.04(b) shall be made successively whenever any such
rights, options or warrants are issued and shall become effective immediately after the close of
business on the record date for such distribution. To the extent any such rights, options or
warrants are not exercised prior to their expiration, the Conversion Rate shall be readjusted to
the Conversion Rate that would then be in effect had the adjustment with respect to the
distribution of such rights, options or warrants been made on the basis of delivery of only the
number of such rights, options or warrants actually exercised





80











 




prior to their expiration. If such rights, options or warrants are not so distributed, the
Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such
record date for such distribution had not occurred.




     For purposes of this Section 12.04(b), in determining whether any rights, options or warrants
entitle the holders to subscribe for or purchase shares of the Common Stock at less than such
average of the Closing Sale Prices of the Common Stock for the applicable 10 consecutive Trading
Day period ending on, and including, the Trading Day immediately preceding the date of announcement
for such distribution, and in determining the aggregate offering price of such shares of the Common
Stock, there shall be taken into account any consideration received by the Company for such rights,
options or warrants and any amount payable on exercise thereof, based on the Fair Market Value of
such consideration, if other than cash.



     (c) If the Company pays dividends or distributions to all or substantially all holders of the
Common Stock consisting of its debt, securities, assets or rights to purchase securities of the
Company (any of such debt, securities, assets or rights to purchase securities of the Company, the
“Distributed Property”), excluding:




     (i) dividends or distributions (including subdivisions) as to which an adjustment was
or will be effected pursuant to Section 12.04(a);




     (ii) distributions of rights, options or warrants as to which an adjustment was or
will be effected pursuant to Section 12.04(b);




     (iii) dividends or distributions paid exclusively in cash referred to in Section
12.04(d);




     (iv) any Spin-Off as to which the provisions set forth below in this Section 12.04(c)
shall apply; and




     (v) any dividend or distribution in connection with a Reorganization Event,


then the Conversion Rate shall be increased based on the following formula:




     



where,




	 	 	 	 	 	 	 
	 

	 	R
	 	=
	 	the Conversion Rate in effect immediately prior to the close
of business on the record date for such distribution;






81









 






	 	 	 	 	 	 	 
	 

	 	R'
	 	=
	 	the Conversion Rate in effect immediately after the close of
business on the record date for such distribution;
	 
	 	 	 	 	 	 
	 

	 	M
	 	=
	 	the average of the Closing Sale Prices of the Common Stock
over the 10 consecutive Trading Day period ending on, and
including, the Trading Day immediately preceding the
Ex-Dividend Date for such distribution; and
	 
	 	 	 	 	 	 
	 

	 	F
	 	=
	 	the Fair Market Value of the portion of the Distributed
Property distributed in respect of each share of the Common
Stock immediately prior to the open of business on the
Ex-Dividend Date for such distribution.





If the “F” (as defined above) of any distribution for purposes of this Section 12.04(c) is
determined by reference to the actual or when-issued trading market for any securities, the Board
of Directors shall in doing so consider the prices in such market over the same period used in
computing the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period
ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such
distribution. Notwithstanding the foregoing, if “F” (as defined above) is equal to or greater than
“M” (as defined above), in lieu of the foregoing increase, each Holder of Debentures shall receive
(without having to convert its Debentures), in respect of each $1,000 principal amount thereof, at
the same time (or with respect to each series of Debenture issued after the record date for such
distribution, on the Issue Date of such series) and upon the same terms as holders of the Common
Stock receive the Distributed Property, the amount and kind of the Distributed Property that such
Holder would have received as if such Holder owned a number of shares of Common Stock for each
$1,000 principal amount of Debentures equal to the Conversion Rate in effect on the record date for
the distribution.




     Any increase made under the above portion of Section 12.04(c) shall become effective
immediately after the close of business on the record date for such distribution. If such
distribution is not so paid or made, the Conversion Rate shall be decreased to the Conversion Rate
that would then be in effect if such dividend or distribution had not been declared.



     With respect to an adjustment pursuant to this Section 12.04(c) where there has been a payment
of a dividend or other distribution on the Common Stock to all or substantially all holders of the
Common Stock in shares of Capital Stock of any class or series, or similar equity interest, of or
relating to a Subsidiary or other business unit of the Company, where such Capital Stock or similar
equity interest is listed or quoted (or will be listed or quoted upon consummation of the
transaction) on a national securities exchange or reasonably comparable non-U.S. equivalent (a
“Spin-Off”), the Conversion Rate shall be increased based on the following formula:



82









 





     



where,




	 	 	 	 	 	 	 
	 

	 	R
	 	=
	 	the Conversion Rate in effect immediately prior to the close
of business on the record date for the Spin-Off;
	 
	 	 	 	 	 	 
	 

	 	R'
	 	=
	 	the Conversion Rate in effect immediately after the close of
business on the record date for the Spin-Off;
	 
	 	 	 	 	 	 
	 

	 	F
	 	=
	 	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
(determined for purposes of the definition of Closing Sale
Price as if such Capital Stock or similar equity interest
were the Common Stock) over the first 10 consecutive Trading
Day period immediately following, and including, the
Ex-Dividend Date for the Spin-Off (the “Valuation Period”);
and
	 
	 	 	 	 	 	 
	 

	 	MP
	 	=
	 	the average of the Closing Sale Prices of Common Stock over
the Valuation Period.





The adjustment to the Conversion Rate under the preceding paragraph shall occur immediately after
the open of business on the day after the last day of the Valuation Period, but will be given
effect immediately after the close of business on the record date for the Spin-Off. For purposes
of determining the Conversion Rate, in respect of any conversion during the 10 Trading Days
commencing on the Ex-Dividend Date for any Spin-Off, references within the portion of this Section
12.04(c) related to Spin-Offs to 10 Trading Days shall be deemed replaced with such lesser number
of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, but
excluding, the relevant Conversion Date.




     (d) If the Company makes any distribution of cash to all or substantially all holders of the
Common Stock, the Conversion Rate shall be increased based on the following formula:



     



where,




	 	 	 	 	 	 	 
	 

	 	R
	 	=
	 	the Conversion Rate in effect immediately prior to the close
of business on the record date for such distribution;






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	 	R'
	 	=
	 	the Conversion Rate in effect immediately after the close of
business on the record date for such distribution;
	 
	 	 	 	 	 	 
	 

	 	SP
	 	=
	 	the average of the Closing Sale Prices of the Common Stock
over the 10 consecutive Trading Day period ending on, and
including, the Trading Day immediately preceding the
Ex-Dividend Date for such distribution; and
	 
	 	 	 	 	 	 
	 

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





Any adjustment made pursuant to this Section 12.04(d) shall become effective immediately after
the close of business on the record date for such dividend or distribution. Notwithstanding the
foregoing, if “C” (as defined above) is equal to or greater than “SP” (as defined above), in lieu
of the foregoing increase, each Holder of the Debentures shall receive (without having to convert
its Debentures), for each $1,000 principal amount of Debentures, at the same time (or with respect
to each series of Debenture issued after the record date for such distribution, on the Issue Date
of such series) and upon the same terms as holders of shares of the Common Stock, the amount of
cash that such Holder would have received as if such Holder owned a number of shares of Common
Stock for each $1,000 principal amount of Debentures equal to the Conversion Rate on the record
date for such cash distribution.




     If such distribution is not so paid or made, the Conversion Rate shall be decreased to the
Conversion Rate that would then be in effect if such distribution had not been declared.



     (e) If the Company or any of its Subsidiaries purchases Common Stock in respect of a tender
offer or exchange offer, other than an odd-lot offer, to the extent that the cash and value of any
other consideration included in the payment per share of the Common Stock exceeds the Closing Sale
Price of the Common Stock on the Trading Day following the last date on which tenders or exchanges
may be made pursuant to such tender or exchange offer (the “Expiration Date”), the Conversion Rate
shall be increased based on the following formula:



     



where,




	 	 	 	 	 	 	 
	 

	 	R
	 	=
	 	the Conversion Rate in effect immediately prior to the open
of business on the Trading Day immediately following the
Expiration Date;
	 
	 	 	 	 	 	 
	 

	 	R'
	 	=
	 	the Conversion Rate in effect immediately after the open of
business on the Trading Day immediately following the
Expiration Date;






84









 






	 	 	 	 	 	 	 
	 

	 	F
	 	=
	 	the Fair Market Value of the aggregate consideration payable
in such tender offer or exchange offer (up to any maximum
amount specified in the terms of the tender or exchange
offer) for all shares of Common Stock the Company or any of
its Subsidiaries purchase in such tender or exchange offer,
such Fair Market Value to be measured as of the expiration
time of the tender or exchange offer (the “Expiration
Time”);
	 
	 	 	 	 	 	 
	 

	 	OS
	 	=
	 	the number of shares of Common Stock outstanding immediately
prior to the Expiration Time (prior to giving effect to the
purchase of any shares of Common Stock accepted for purchase
or exchange in such tender or exchange offer);
	 
	 	 	 	 	 	 
	 

	 	OS'
	 	=
	 	the number of shares of Common Stock outstanding immediately
after the Expiration Time (after giving effect to the
purchase of all shares of Common Stock accepted for purchase
or exchange in such tender or exchange offer); and
	 
	 	 	 	 	 	 
	 

	 	SP
	 	=
	 	the average of the Closing Sale Prices of the Common Stock
over the 10 consecutive Trading Day period commencing on,
and including, the Trading Day following the Expiration
Date.





The adjustment to the Conversion Rate under this Section 12.04(e) will be made immediately after
the open of business on the 11th Trading Day following the Expiration Date but will be
given effect at the open of business on the Trading Day following the Expiration Date. For purposes
of determining the Conversion Rate in respect of any conversion during the 10 Trading Days
commencing on the Trading Day following the Expiration Date, references within this Section
12.04(e) to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as
have elapsed from and including the Trading Day following the Expiration Time to, but excluding,
the relevant Conversion Date.




     (f) On and after the Commitment Date, if the Company were to adopt a stockholders’ rights plan
under which the Company issues rights providing that each share of Common Stock issued upon
conversion of the Debentures, at any time prior to the distribution of separate certificates
representing the rights, will be entitled to receive the right, then there will not be any
adjustment to the Conversion Rate as a result of:




     (A) the issuance of rights;




     (B) the distribution of separate certificates representing rights (provided
such rights accompany the Common Stock);



85









 






     (C) the exercise or redemption of rights in accordance with any rights
agreement; or




     (D) the termination or invalidation of rights.



     If the Company has a stockholders’ rights plan in effect on any Conversion Date, Holders that
are entitled to receive shares of Common Stock upon conversion will receive the rights under the
rights plan upon such conversion unless, prior to any conversion, the rights have separated from
the Common Stock. If the rights have separated on or after the Commitment Date, the Conversion Rate
will be adjusted at the time of separation as provided in Section 12.04(c) above (subject to
readjustment in the event of the expiration, termination or redemption of such rights).



     (g) The Company from time to time may increase the Conversion Rate as permitted by law by any
amount for a period of at least 20 Business Days; provided that the Board of Directors shall have
made a determination that such increase would be in the best interests of the Company (which
determination shall be conclusive) and such increase is irrevocable during such period. Whenever
the Conversion Rate is increased pursuant to this Section 12.04(g), the Company shall mail to
Holders of the Debentures and the Initial Purchaser a notice of the increase at least 10 calendar
days prior to the date the increased Conversion Rate takes effect, and such notice shall state the
increased Conversion Rate and the period during which it will be in effect.



     (h) On and after the Commitment Date, the Company may (but shall not be required to) increase
the Conversion Rate, in addition to any adjustments pursuant to clause (a), (b), (c), (d), or (e)
of this Section 12.04, if the Board of Directors considers such increase to be advisable to avoid
or diminish any income tax to holders of Common Stock, or rights to purchase shares of Common
Stock, in connection with any dividend or distribution of shares (or rights to acquire shares) or
similar event.



     (i) On and after the Commitment Date, the Company shall not take any action that would result
in any adjustment to the Conversion Rate, pursuant to the provisions of this Section 12.04, in such
a manner as to result in the reduction of the Conversion Price to less than the par value per share
of the Common Stock.



     (j) For purposes of this Section 12.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company so long as the Company
does not pay any dividend or make any distribution on shares of Common Stock held in the treasury
of the Company.



     (k) Notwithstanding anything to the contrary in this Article 12, no adjustment to the
Conversion Rate shall be made:



86









 






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




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




     (iii) except as expressly provided in Section 12.04, ordinary course of business
stock repurchases (including, without limitation, structured or derivative transactions)
pursuant to a stock repurchase program approved by the Board of Directors;




     (iv) for accrued and unpaid interest on the Debentures, if any; or




     (v) upon 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 of
the Offering Memorandum;




     (vi) except as expressly provided in this Section 12.04, upon the issuance of any
            shares of Common Stock, or any securities convertible into or exchangeable for shares of
Common Stock or the right, option or warrant to purchase shares of Common Stock or such
convertible or exchangeable securities.



     (l) No adjustment in the Conversion Rate will be required unless the adjustment would require
an increase or decrease of more than 1% of the applicable Conversion Rate. If the adjustment is not
made because the adjustment does not change the applicable Conversion Rate by more than 1%, then
the adjustment that is not made will be carried forward and taken into account in any future
adjustment. Notwithstanding the foregoing, all such carried forward adjustments shall be made on
the Conversion Date with respect to any converted Debentures, regardless of whether the aggregate
adjustment is less than 1% on the Conversion Date.



     (m) Whenever any provision of the Indenture requires the Company to calculate Closing Sale
Prices or other amounts over a span of multiple days (including the Stock Price for the purposes of
a Make Whole Adjustment Event), the Board of Directors will make appropriate adjustments to account
for any adjustment to the Conversion Rate that becomes effective, or any event requiring an
adjustment to the Conversion Rate where the Ex-Dividend Date (or record date, if applicable) of the
event occurs, at any time during the period when the Closing Sale Prices or such other amounts are
to be calculated.



     Section 12.05. Notice of Adjustments of Conversion Rate.



87









 





     Whenever the Conversion Rate is adjusted as herein provided:



     (a) the Company shall compute the adjusted Conversion Rate in accordance with Section 12.04
and shall prepare a certificate signed by the Chief Financial Officer of the Company setting forth
the adjusted Conversion Rate and showing in reasonable detail the facts upon which such adjustment
is based, and such certificate shall promptly be filed with the Trustee and with each Conversion
Agent (if other than the Trustee); and



     (b) upon each such adjustment, a notice stating that the Conversion Rate has been adjusted and
setting forth the adjusted Conversion Rate shall be required, such notice shall be provided by the
Company to all Holders and the Initial Purchaser in accordance with Section 1.03.



     Neither the Trustee nor any Conversion Agent shall be under any duty or responsibility with
respect to any such certificate or the information and calculations contained therein, except to
exhibit the same to any Holder of Debentures desiring inspection thereof at its office during
normal business hours.



     Section 12.06. Company to Reserve Common Stock.



     On and after the Commitment Date, the Company shall at all times reserve and keep available,
out of its authorized but unissued Common Stock, for the purpose of effecting the conversion of
Debentures, the full number of shares of Common Stock then issuable upon the conversion of all
Outstanding Debentures.



     On and after the Commitment Date, the Company covenants that all shares of Common Stock issued
upon conversion of Debentures shall be fully paid and non-assessable by the Company and free from
all taxes, liens, charges and pre-emptive rights with respect to the issue thereof.



     Section 12.07. Taxes on Conversions.



     Except as provided in the next sentence, the Company shall pay all documentary, stamp or
similar issue or transfer tax due that may be payable in respect of the issue or delivery of shares
of Common Stock on conversion of Debentures pursuant hereto. The Company shall not, however, be
required to pay any tax or duty that may be payable in respect of (i) income of the Holder, or (ii)
any transfer involved in the issue and delivery of shares of Common Stock in a name other than that
of the Holder of the Debenture or Debentures to be converted or the name of an Affiliate of such
Holder, and no such issue or delivery shall be made unless and until the Person requesting such
issue has paid to the Company the amount of any such tax or duty, or has established to the
satisfaction of the Company that such tax or duty has been paid.



     Section 12.08. Provision in Case of Effect of Reclassification, Consolidation, Merger or
Sale.



88









 





     On or after the Commitment Date, if (i) any reclassification or change of the outstanding
shares of Common Stock (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a split, subdivision or combination), (ii) any
consolidation, binding share exchange, merger or combination involving the Company or (iii) any
sale or conveyance (including through a lease or other transfer) of all or substantially all of the
property 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 with
respect to or in exchange for such Common Stock (any such event described in clauses (i) through
(iii) a “Reorganization Event”), then:



     (a) the Company or the Successor Company, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the Trust Indenture Act as in force at the date of
execution of such supplemental indenture if such supplemental indenture is then required to so
comply) permitted under Section 8.01(b) providing for the conversion and settlement of the
Debentures as set forth in this Indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article 12 and the Trustee may conclusively rely on the determination by the Company of
the equivalency of such adjustments. If, in the case of any Reorganization Event, the Reference
Property includes shares of stock or other securities and assets of a company other than the
successor or purchasing company, as the case may be, in such Reorganization Event, then such
supplemental indenture shall also be executed by such other company and shall contain such
additional provisions to protect the interests of the Holders of the Debentures as the Board of
Directors shall reasonably consider necessary by reason of the foregoing.



     In the event a supplemental indenture is executed pursuant to this Section 12.08, the Company
shall promptly issue a press release, make such press release available on the Company’s website
and file with the Trustee an Officers’ Certificate briefly stating the reasons therefore, the kind
or amount of cash, securities or property or assets that will constitute the Reference Property
after any such Reorganization Event, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders
(if any) and the Initial Purchaser.



     If any securities to be provided for the purpose of conversion of Debentures hereunder require
registration with or approval of any Governmental Authority under any federal or state law before
such securities may be validly issued upon conversion, each supplemental indenture executed
pursuant to this Section 12.08 shall provide that the Company or the successor or the purchasing
Person, as the case may be, or if the Reference Property includes shares of stock or other
securities and assets of a company other than the Successor Company, as the case may be, then such
company, shall use all commercially reasonable efforts, to the extent then permitted by the rules
and interpretations of the SEC (or any




89












 




successor thereto), to secure such registration or approval in connection with the conversion
of Debentures.




     (b) Notwithstanding the provisions of Section 12.01(a) and (c), and subject to the provisions
of Section 12.01, at the effective time of such Reorganization Event, the right to convert each
$1,000 principal amount of Debentures shall be changed to a right to convert such Debentures
(whether or not issued on the date of such Reorganization Event) into the type and amount of shares
of stock, other securities or other property or assets (including cash or any combination thereof)
that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior
to such transaction would have owned or been entitled to receive (the “Reference Property”). For
purposes of determining the constitution of Reference Property, the type and amount of
consideration that a holder of Common Stock would have been entitled to in the case of a
Reorganization Event that causes the Common Stock to be converted into the right to receive more
than a single type of consideration (determined, based in part upon any form of stockholder
election) shall be deemed to be the (i) weighted average of the types and amounts of consideration
received by the holders of Common Stock that affirmatively make such an election or (ii) if no
holders of Common Stock affirmatively make such election, the types and amounts of consideration
actually received by such holders. None of the foregoing provisions shall affect any right of a
Holder of Debentures to convert its Debentures in accordance with the provisions of this Article
12.



     (c) The Company shall cause notice of the execution of a supplemental indenture required by
this Section 12.08 and identify the related Reference Property to be mailed to each Holder (if
any), at its address appearing on the Register provided for in Section 9.01, to the Trustee in
accordance with Section 1.03 and to the Initial Purchaser in accordance with Section 1.03, as soon
as practicable after execution or determination, as applicable, thereof. Failure to deliver such
notice shall not affect the legality or validity of such supplemental indenture.



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



     (e) If this Section 12.08 applies to any event or occurrence, Section 12.04 shall not apply to
such event or occurrence; provided, that, for the avoidance of doubt, the supplemental indenture
entered into pursuant to Section 12.08(a) above shall contain adjustments which shall be as nearly
equivalent as may be practicable to the adjustments in Article 12 and such provisions shall apply
to future events or occurrences.



     Section 12.09. Responsibility of Trustee for Conversion Provisions.



     The Trustee and any Conversion Agent shall not at any time be under any duty or responsibility
to any Holder of Debentures to determine whether any facts



90









 







exist which may require any adjustment of the Conversion Rate, or with respect to the nature
or extent of any such adjustment when made, or with respect to the method employed, herein or in
any supplemental indenture provided to be employed, in making the same, or whether a supplemental
indenture need be entered into. Neither the Trustee nor any Conversion Agent shall be accountable
with respect to the validity or value (or the kind or amount) of any Common Stock, or of any other
securities or property or cash, which may at any time be issued or delivered upon the conversion of
any Debentures; and it or they do not make any representation with respect thereto. Neither the
Trustee nor any Conversion Agent shall be responsible for any failure of the Company to make or
calculate any cash payment or to issue, transfer or deliver any shares of Common Stock or share
certificates or other securities or property or cash upon the surrender of any Debenture for the
purpose of conversion; and the Trustee and any Conversion Agent shall not be responsible for any
failure of the Company to comply with any of the covenants of the Company contained in this Article
12.



     Section 12.10. Right to Set-off Withholding Taxes.



     (a) If the Common Stock delivered by the Company to a Holder upon conversion of a Debenture is
not sufficient to allow the Company to comply with the U.S. federal withholding tax obligations
imposed by the Code with respect to accrued and unpaid interest or accrued original issue discount
on the Debenture payable to the beneficial owner of such Debenture, the Company may recoup or
set-off such liability against any amounts owed to such Holder, including, but not limited to, the
shares of Common Stock to be issued upon conversion to such beneficial owner or any actual cash
dividends or distributions subsequently made with respect to such shares of Common Stock to such
beneficial owner.



     (b) If the Conversion Rate of the Debentures is adjusted (including pursuant to Section
12.01(c) and Section 12.04), to the extent such adjustment results in a constructive distribution
to beneficial owners of Debentures under Section 305 of the Code and the Company is required to pay
any U.S. federal withholding tax as a result of such constructive distribution, the Company may
recoup or set-off such payments against any payments (whether in cash or shares of Common Stock)
made with respect to the Debentures (or any Common Stock received upon conversion thereof) to such
beneficial owners.



     Section 12.11. Termination of Conversion Right.



     (a) On or after the Conversion Commencement Date, the Company may elect, subject to the
suspension of this right as provided in Section 12.11(b), to terminate the rights of all Holders of
Debentures to convert their Debentures into shares of Common Stock by written notice (the
“Conversion Termination Notice”) to the Trustee and all Holders at least 20 Business Days prior to
the date, selected by the Company, on which such conversion rights will terminate (the “Conversion
Termination Date”) if, and only if, the Closing Sale Price of the Common Stock has exceeded 140% of
the then applicable Conversion Price for at



91









 







least 20 Trading Days in the 30-consecutive Trading Day period (including the last Trading Day
of such period) ending on the Trading Day immediately preceding the date of such Conversion
Termination Notice.



     (b) The Company’s right to terminate the conversion right of a Holder of the Debentures, as
described in Section 12.11(a), will be suspended as to such Holder during any period of time in
which any Conversion Blocker is in effect as to such Holder’s Debentures; provided that upon
receipt of a Conversion Termination Notice from the Company, such Holder must provide notice to the
Company and the Trustee within 10 Business Days of receipt of the Conversion Termination Notice
specifying the Conversion Blocker or Conversion Blockers that are applicable to such Holder.



     Section 12.12. Conversion Blockers. Notwithstanding anything to the contrary in this
Indenture, the Debentures will not be convertible by a Holder prior to the Maturity Date:



     (a) during any period of time in which conversion of such Holder’s Debentures would cause such
converting Holder to become, directly or indirectly, a “5-percent shareholder” (as such term is
used in Section 382 of the Code and the Treasury regulations promulgated thereunder), unless such
converting Holder has received prior approval of the Company’s Board of Directors (the “Section 382
Conversion Blocker”); or



     (b) during any period of time in which conversion of such Holder’s Debentures would cause such
Holder to be required to make a filing (an “HSR Filing”) under the Hart-Scott-Rodino Act of 1976,
as amended (the “HSR Act”); provided that, subject to the other Conversion Blockers, conversions of
such Holder’s Debentures shall be permitted up to (but shall not exceed) the amount that would
cause the HSR Filing to be required (as reasonably determined by the Company or such Holder, in
each case upon advice of outside counsel). Subject to the other Conversion Blockers, conversion of
a Holder’s Debentures shall be permitted following the earliest to occur of (x) the approval of the
transaction under the HSR Act, (y) the receipt of an early HSR Act termination notice from the
Federal Trade Commission and (z) the expiration of the applicable HSR Act waiting period. If and
to the extent such Holder’s Debentures are not convertible as a result of the Conversion Blocker
described in this Section 12.12(b) (the “HSR Conversion Blocker”), such Holder will agree to
promptly make the HSR Filing, and the Company will agree to provide its cooperation with such
filing; or



     (c) during any period of time in which conversion of such Holder’s Debentures could cause such
Holder or a direct or indirect owner of such Holder (that in each case is a non-U.S. Person) to be
deemed a 10% or more owner of the Company for purposes of the portfolio interest exemption from
withholding as set forth in Sections 871 and 881 of the Code (the “Tax Conversion Blocker”), as
reasonably determined by such Holder upon advice of outside counsel; provided that the Tax
Conversion Blocker will only apply if such Holder or such direct or



92









 







indirect owner of the Holder, as applicable, is a non-U.S. Person and is not a pass-through
entity for U.S. federal income tax purposes and the Holder would continue to own the Company’s debt
securities after such conversion; or



     (d) during any period of time in which the aggregate number of shares of Common Stock that may
be acquired by a Holder upon conversion of Debentures will, when added to the aggregate number of
shares of Common Stock deemed beneficially owned by such Holder at such time (other than by virtue
of the ownership of securities or rights to acquire securities that have limitations on the
Holder’s right to convert, exercise or purchase similar to this limitation), as determined pursuant
to the rules and regulations promulgated under Section 13(d) of the Exchange Act, exceed 9.9% (the
“Restricted Ownership Percentage”) of the total issued and outstanding shares of Common Stock (the
“Section 16 Conversion Blocker”); provided that the Section 16 Conversion Blocker will not apply
with respect to a Holder if such Holder is subject to Section 16(a) of the Exchange Act without
regard to the aggregate number of shares of Common Stock issuable upon conversion of the Debentures
and upon conversion, exercise or sale of securities or rights to acquire securities that have
limitations on the Holder’s right to convert, exercise or purchase similar to this limitation;
provided, further that, subject to the other Conversion Blockers, conversion of such Holder’s
Debentures shall be permitted up to (but shall not exceed) the amount that would cause such Holder
to exceed the Restricted Ownership Percentage; provided, further that, each Holder will have the
right at any time and from time to time (x) to reduce the Restricted Ownership Percentage
applicable to such Holder immediately upon notice to the Company (provided that, for the avoidance
of doubt, in such event, such Holder may sell shares of Common Stock or Debentures to reduce the
aggregate number of shares of Common Stock deemed beneficially owned by such Holder to a level
below the reduced Restricted Ownership Percentage, in which case the Debentures will be convertible
by such Holder up to (but shall not exceed) the reduced Restricted Ownership Percentage); and (y)
to increase the Restricted Ownership Percentage applicable to such Holder upon the announcement of
a pending or planned Make Whole Adjustment Event or the occurrence of a Make Whole Adjustment
Event; provided, however that the Section 16 Conversion Blocker will terminate six months after the
Company issues a Conversion Termination Notice; or



     (e) during any period of time following the Company’s receipt of notice (the “Insurance
Blocker Notice”) from such Holder that conversion of such Holder’s Debentures would cause such
Holder to be required to make a filing (the “Insurance Filing”) to obtain approval under, or
exemption from the approval requirements of, insurance statutes and regulations applicable to the
Company’s direct and indirect Insurance Company Subsidiaries (any such approvals or exemptions from
approval requirements, the “Insurance Regulatory Approvals”); provided, however, that the
Conversion Blocker described in this Section 12.12(e) (the “Insurance Conversion Blocker” and,
together with the Section 382 Conversion Blocker, the HSR Conversion Blocker, the Tax



93









 







Conversion Blocker and Section 16 Conversion Blocker, the “Conversion Blockers”) will
terminate upon the earlier to occur of (i) receipt of all applicable Insurance Regulatory Approvals
and (ii) the date the Company and such Holder have reasonably concluded that the transaction does
not require any Insurance Regulatory Approvals; provided, however, that the Insurance Conversion
Blocker will not apply to the extent the Company and the Holder shall have entered into a mutually
agreed upon alternative arrangement (such as delivery of the shares of Common Stock issued upon
conversion of the Debentures into a voting trust) permitting the conversion of the Debentures to
occur pending receipt of any required Insurance Regulatory Approvals. If conversion of a Holder’s
Debentures is being prevented by the Insurance Conversion Blocker, such Holder will agree to
promptly make the Insurance Filing that would be required to obtain the required Insurance
Regulatory Approvals.



     (f) For the avoidance of doubt, the conversion of any portion of a Holder’s Debentures which
would not violate the terms of a Conversion Blocker shall be permitted.



     (g) The Company may rely solely upon the receipt of a Notice of Conversion from a Holder as
sufficient evidence that no Conversion Blocker is in effect. The Company shall not be liable to the
Holder or any other Person for any breach of any Conversion Blocker resulting from actions the
Company is otherwise required to take in connection with any conversion of all or part of such
Holder’s Debentures in reliance on the Notice of Conversion delivered by the Holder.



     Section 12.13. Registration of Common Stock Issuable upon Conversion of Debentures. On and
after the Commitment Date, the Company shall use its reasonable best efforts to cause the Common
Stock issued upon conversion of the Debentures to be listed on the NYSE or such other securities
exchange on which the Common Stock is then listed. The Company shall comply in all material
respects with its reporting, filing and other obligations under the NYSE Listed Company Manual or
bylaws or other rules of the NYSE or comparable regulations of such other securities exchanges on
which the Common Stock is then listed. The Company shall not take any action which would be
reasonably expected to result in the delisting or suspension of trading of the Common Stock,
including the Common Stock issued upon conversion of the Debentures, on the NYSE or a comparable
national securities exchange. The Company’s obligations under this Section 12.13 shall be effective
on and after the Commitment Date.



ARTICLE 13

Discharge




     Section 13.01. Discharge of Liability on Debentures.



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     When (1) the Company shall deliver to the Debenture Registrar for cancellation all Debentures
theretofore authenticated (other than any Debentures which have been mutilated, destroyed, lost or
wrongfully taken and in lieu of or in substitution for which other Debentures shall have been
authenticated and delivered) and not theretofore canceled or (2) all the Debentures not theretofore
canceled or delivered to the Registrar for cancellation shall have (a) been deposited for
conversion and the Company shall deliver to the Holders shares of Common Stock, sufficient to pay
all amounts owing in respect of all Debentures (other than any Debentures which shall have been
mutilated, destroyed, lost or wrongfully taken and in lieu of or in substitution for which other
Debentures shall have been authenticated and delivered) not theretofore canceled or delivered to
the Registrar for cancellation or (b) become due and payable on the Maturity Date or otherwise, and
the Company shall deposit with the Trustee cash sufficient to pay all amounts owing in respect of
all Debentures (other than any Debentures which shall have been mutilated, destroyed, lost or
wrongfully taken and in lieu of or in substitution for which other Debentures shall have been
authenticated and delivered) not theretofore canceled or delivered to the Registrar for
cancellation, including the principal amount and interest accrued and unpaid to the Maturity Date
or other such date, and if in either case (1) or (2) the Company shall also pay or cause to be paid
all other sums payable hereunder by the Company, then this Indenture with respect to the Debentures
shall cease to be of further effect (except as to (i) remaining rights of registration of transfer,
substitution and conversion of Debentures, (ii) rights hereunder of Holders to receive from the
Trustee payments of the amounts then due, including interest with respect to the Debentures and the
other rights, duties and obligations of Holders, as beneficiaries hereof solely with respect to the
amounts, if any, so deposited with the Trustee and (iii) the rights, obligations and immunities of
the Trustee, Authenticating Agent, Paying Agent, Conversion Agent and Registrar under this
Indenture with respect to the Debentures, including, without limitation, its rights under Section
6.06), and the Trustee, on demand of the Company accompanied by an Officers’ Certificate and an
Opinion of Counsel as required by Section 13.04 and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this Indenture with
respect to the Debentures; provided however, the Company hereby agrees to reimburse the Trustee,
Authenticating Agent, Paying Agent, Conversion Agent and Registrar for any costs or expenses
thereafter reasonably and properly incurred by the Trustee, Authenticating Agent, Paying Agent,
Conversion Agent and Registrar and to compensate the Trustee, Authenticating Agent, Paying Agent,
Conversion Agent and Registrar for any services thereafter reasonably and properly rendered by the
Trustee, Authenticating Agent, Paying Agent, Conversion Agent and Registrar in connection with this
Indenture with respect to the Debentures.



     Section 13.02. Repayment to Company. The Trustee shall promptly turn over to the Company
upon request any excess money or shares of Common Stock held by it at any time.



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     Subject to any applicable abandoned property law, the Trustee shall pay to the Company upon
written request any money held by it for the payment of principal or interest and any shares of
Common Stock due in respect of converted Debentures that remains unclaimed for two years, and,
thereafter, Holders entitled to the money and/or shares of Common Stock must look to the Company
for payment as general creditors.



     Section 13.03. Reinstatement.



     If the Trustee or the Paying Agent is unable to apply any money to the Holders entitled
thereto by reason of any order or judgment of any court of any Governmental Authority enjoining,
restraining or otherwise prohibiting such application, the Company’s obligations under this
Indenture with respect to the Debentures shall be revived and reinstated as though no deposit had
occurred pursuant to Section 13.01 until such time as the Trustee or the Paying Agent is permitted
to apply all such money in accordance with this Indenture and the Debentures to the Holders
entitled thereto; provided, however, that if the Company makes any payment of principal amount of
or interest on any Debenture following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Debentures to receive such payment from the money
held by the Trustee or Paying Agent.



     Section 13.04. Officers’ Certificate; Opinion of Counsel.



     Upon any application or demand by the Company to the Trustee to take any action under Section
13.01, the Company shall furnish to the Trustee an Officers’ Certificate or Opinion of Counsel
stating that all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with.



ARTICLE 14

[Reserved]




ARTICLE 15

Miscellaneous Provisions




     Section 15.01. Termination of Notices to Initial Purchaser. Notwithstanding anything to the
contrary herein, if any obligation of the Trustee, the Company, any Holder or any other Person to
provide notice, direction, certificates, consent, election or other documents to the Initial
Purchaser pursuant to the terms of this Indenture arises after the earlier of (i) the date on which
$293.0 million in aggregate principal amount of Debentures have been issued and (ii) October 5,
2010, such Person will not be required to provide such notice, direction, certificates, consent,
election or other documents to the Initial Purchaser.



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     Section 15.02. Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements of the Company contained in this Indenture shall bind its successors and
assigns whether so expressed or not.



     Section 15.03. Calculations. The Company shall be solely responsible for making all
calculations called for under this Indenture and the Debentures. The Company shall make all these
calculations in good faith and, absent manifest error, its calculations will be final and binding
on Holders of Debentures. The Company shall provide a schedule of its calculations to the Trustee,
and the Trustee is entitled to rely upon the accuracy of its calculations without independent
verification. The Trustee will forward the Company’s calculations to any Holder of Debentures or
the Initial Purchaser upon their request.



     All calculations under this Indenture shall be made to the nearest cent (including, in the
case of any adjustment to the Conversion Rate under Article 12, the resulting adjustment to the
Conversion Price) or to the nearest one ten-thousandth of a share.



     Section 15.04. Official Acts by Successor Corporation. Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by any board, committee
or officer of the Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at the time be the lawful sole
successor of the Company.



     Section 15.05. 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 on
the Company shall be deemed to have been sufficiently given or made, for all purposes if given or
served by being deposited postage prepaid by registered or certified mail in a post office letter
box addressed (until another address is filed by the Company with the Trustee) to Conseco, Inc.,
11825 N. Pennsylvania St., Carmel, Indiana 46032, Attention: General Counsel. Any notice,
direction, request or demand hereunder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or served by being deposited postage prepaid
by registered or certified mail in a post office letter box addressed to the Corporate Trust
Office.



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



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



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     Any notice or communication mailed to the Initial Purchaser shall be mailed to it by first
class mail, postage prepaid, at the address specified in Section 1.03 and shall be sufficiently
given to it if so mailed within the time prescribed.



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



     Section 15.06. Governing Law. THIS INDENTURE AND EACH DEBENTURE SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS ENTERED INTO AND TO BE
PERFORMED THEREIN.



     Section 15.07. Evidence of Compliance with Conditions Precedent; Certificates and Opinions
of Counsel to Trustee. Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an
Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, and an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent have been complied with.



     Each certificate or opinion provided for by or on behalf of the Company 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, he has made such examination
or investigation as is necessary to enable it 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.



     Section 15.08. Legal Holidays. In any case where any Interest Payment Date or Maturity Date
will not be a Business Day, then any action to be taken on such date need not be taken on such
date, but may be taken on the next succeeding Business Day with the same force and effect as if
taken on such date, and no interest shall accrue for the period from and after such date to the
next succeeding Business Day.



     Section 15.09. No Security Interest Created. Nothing in this Indenture or in the
Debentures, expressed or implied, shall be construed to constitute a security



98









 







interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted
and in effect, in any jurisdiction.



     Section 15.10. Benefits of Indenture. Nothing in this Indenture or in the Debentures,
expressed or implied, shall give to any Person, other than the parties hereto, any Paying Agent,
any authenticating agent, any Debenture Registrar and their successors hereunder, and the Holders,
any benefit or any legal or equitable right, remedy or claim under this Indenture.



     Section 15.11. Authenticating Agent. The Trustee may appoint an authenticating agent which
shall be authorized to act on its behalf and subject to its direction in the authentication and
delivery of Debentures in connection with the original issuance thereof and transfers and
conversions of Debentures hereunder, including under Section 2.05, Section 2.06, and Section 2.07,
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 Debentures. For all
purposes of this Indenture, the authentication and delivery of Debentures by the authenticating
agent shall be deemed to be authentication and delivery of such Debentures “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 Debentures 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 6.09.



     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, 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, the Trustee shall promptly
appoint a successor authenticating agent (which may be the Trustee), shall give written notice of
such appointment to the Company and shall mail notice of such appointment to all Holders as the
names and addresses of such Holders appear on the Debenture Register.



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



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     The provisions of Section 6.02, Section 6.03, Section 6.04, Section 3.07 and this Section
15.11 shall be applicable to any authenticating agent.



     Section 15.12. 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 15.13. 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 Debentures or the
transaction contemplated hereby.



     Section 15.14. Force Majeure. In no event shall the Trustee be responsible or liable for
any failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, any provision of
any future law or regulation or any future act of any Governmental Authority, strikes, work
stoppages, labor disputes, accidents, acts of war or terrorism, civil or military disturbances,
sabotage, epidemics, riots, nuclear or natural catastrophes or acts of God, and interruptions, loss
or malfunctions of utilities, communications or computer (software and hardware) services; it being
understood that the Trustee shall use reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable under the
circumstances.



     Section 15.15. Severability. In case any provision in this Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby and such provision shall be ineffective only
to the extent of such invalidity, illegality or unenforceability.



     Section 15.16. No Recourse Against Others. No recourse for the payment of the principal of,
or accrued and unpaid interest on, the Debentures, 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 the Indenture or any indenture supplemental thereto or in any Debenture, or because of the
creation of any indebtedness represented thereby, shall be had against any incorporator,
stockholder, employee, agent, officer, director or subsidiary, as such, past, present or future, of
the Company or of any successor corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance
of a Debenture by a Holder and as part of the consideration for the issue thereof, expressly waived
and released.



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



	 	 	 	 	 
	 	CONSECO, INC.

 	 
	 	By:  	/s/ Edward J. Bonach
 	 
	 	 	Name:  	Edward J. Bonach 	 
	 	 	Title:  	Executive Vice President
and
 Chief Financial Officer 	 
	 
	 	THE BANK OF NEW YORK MELLON 

     TRUST
COMPANY, N.A., as Trustee

 	 
	 	By:  	/s/ Linda Garcia
 	 
	 	 	Name:  	Linda Garcia 	 
	 	 	Title:  	Vice President 	 
	 




 









 








SCHEDULE A





     The following table sets forth the adjustments to the Conversion Rate, expressed as a number
of Additional Shares to be received per $1,000 in principal amount of the Debentures in the event
of a Make-Whole Adjustment Event:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Effective Date	 	$4.99	 	$5.25	 	$5.50	 	$6.00	 	$6.75	 	$7.50	 	$8.50	 	$10.00	 	$15.00	 	$20.00	 	$30.00	 	$45.00	 	$60.00
	October 16, 2009
	 	 	18.2514	 	 	 	17.3475	 	 	 	16.5590	 	 	 	15.1791	 	 	 	13.4925	 	 	 	12.1433	 	 	 	10.7146	 	 	 	9.1074	 	 	 	6.0716	 	 	 	4.5537	 	 	 	3.0358	 	 	 	1.7542	 	 	 	0.9081	 
	December 30, 2010
	 	 	18.2514	 	 	 	17.3475	 	 	 	16.5590	 	 	 	15.1791	 	 	 	13.4925	 	 	 	12.1433	 	 	 	10.7146	 	 	 	9.1074	 	 	 	6.0716	 	 	 	4.5537	 	 	 	3.0358	 	 	 	1.6961	 	 	 	0.8742	 
	December 30, 2011
	 	 	18.2514	 	 	 	17.3475	 	 	 	16.5590	 	 	 	15.1791	 	 	 	13.4925	 	 	 	12.1433	 	 	 	10.7146	 	 	 	9.1074	 	 	 	6.0716	 	 	 	4.5537	 	 	 	3.0358	 	 	 	1.6535	 	 	 	0.8498	 
	December 30, 2012
	 	 	18.2514	 	 	 	17.3475	 	 	 	16.5590	 	 	 	15.1791	 	 	 	13.4925	 	 	 	12.1433	 	 	 	10.7146	 	 	 	9.1074	 	 	 	6.0716	 	 	 	4.5537	 	 	 	3.0358	 	 	 	1.6071	 	 	 	0.8335	 
	December 30, 2013
	 	 	18.2514	 	 	 	17.3475	 	 	 	16.5590	 	 	 	15.1791	 	 	 	13.4925	 	 	 	12.1433	 	 	 	10.7146	 	 	 	9.1074	 	 	 	6.0716	 	 	 	4.5537	 	 	 	2.8996	 	 	 	1.5078	 	 	 	0.8134	 
	December 30, 2014
	 	 	18.2514	 	 	 	17.3475	 	 	 	16.5590	 	 	 	15.1791	 	 	 	13.4925	 	 	 	12.0700	 	 	 	10.5416	 	 	 	8.8242	 	 	 	5.5896	 	 	 	3.9692	 	 	 	2.3489	 	 	 	1.2686	 	 	 	0.7285	 
	December 30, 2015
	 	 	18.2514	 	 	 	10.2725	 	 	 	9.7625	 	 	 	8.9055	 	 	 	7.8660	 	 	 	7.0331	 	 	 	6.1525	 	 	 	5.1621	 	 	 	3.2904	 	 	 	2.3546	 	 	 	1.4188	 	 	 	0.7950	 	 	 	0.4830	 
	December 30, 2016
	 	 	18.2514	 	 	 	8.3268	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 







A-1