Exhibit
4.1


 




 







AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY,

Issuer





5.25% Contingent Convertible Senior Notes Due 2024
















INDENTURE
















U.S. Bank National Association,

Trustee





December 6, 2004


 





 





















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture
  Section

  
	
   

  	
   

  	
   

  	
   

  
	
  310

  	
  (a)(1)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  312

  	
  (a)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
   

  	
  11.03

  
	
   

  	
  (c)

  	
   

  	
   

  	
  11.03

  
	
  313

  	
  (a)

  	
   

  	
   

  	
  7.06

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.06

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
   

  	
  N.A.

  
	
  314

  	
  (a)

  	
   

  	
   

  	
  4.02, 4.03

  
	
   

  	
  (b)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (c)(2)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (c)(3)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (f)

  	
   

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
   

  	
  7.01(b)

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.05

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
   

  	
  7.01(c)

  
	
   

  	
  (e)

  	
   

  	
   

  	
  6.11

  
	
  316

  	
  (a)(1)(A)

  	
   

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  317

  	
  (a)(1)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
   

  	
  N.A.

  
	
  318

  	
  (a)

  	
   

  	
   

  	
  N.A.

  



 










N.A. means not
applicable.


 










* This
Cross-Reference Table is not part of the Indenture.


 


i





















 


TABLE OF CONTENTS


 


	
  ARTICLE 1

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  Section
  1.01. Definitions.

  	
   

  	
   

  
	
  Section
  1.02. Other Definitions.

  	
   

  	
   

  
	
  Section
  1.03. Incorporation by Reference of Trust
  Indenture Act

  	
   

  	
   

  
	
  Section
  1.04. Rules of Construction

  	
   

  	
   

  
	
  Section
  1.05. Acts of Holders.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2

  
	
  THE
  SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section
  2.01. Form and Dating.

  	
   

  	
   

  
	
  Section
  2.02. Execution and Authentication

  	
   

  	
   

  
	
  Section
  2.03. Registrar, Paying Agent and
  Conversion Agent

  	
   

  	
   

  
	
  Section
  2.04. Paying Agent to Hold Money in Trust

  	
   

  	
   

  
	
  Section
  2.05. Holder Lists

  	
   

  	
   

  
	
  Section
  2.06. Transfer and Exchange.

  	
   

  	
   

  
	
  Section
  2.07. Replacement Securities

  	
   

  	
   

  
	
  Section
  2.08. Outstanding Securities;
  Determinations of Holders’ Action

  	
   

  	
   

  
	
  Section
  2.09. Temporary Securities

  	
   

  	
   

  
	
  Section
  2.10. Cancellation

  	
   

  	
   

  
	
  Section
  2.11. Persons Deemed Owners

  	
   

  	
   

  
	
  Section
  2.12. Global Securities.

  	
   

  	
   

  
	
  Section
  2.13. CUSIP Numbers

  	
   

  	
   

  
	
  Section
  2.14. Designation

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3

  
	
  REDEMPTION AND REPURCHASES

  
	
   

  	
   

  	
   

  
	
  Section
  3.01. Right to Redeem; Notices to Trustee.

  	
   

  	
   

  
	
  Section
  3.02. Selection of Securities to Be
  Redeemed

  	
   

  	
   

  
	
  Section
  3.03. Notice of Redemption

  	
   

  	
   

  
	
  Section
  3.04. Effect of Notice of Redemption

  	
   

  	
   

  
	
  Section
  3.05. Deposit of Redemption Price

  	
   

  	
   

  
	
  Section
  3.06. Securities Redeemed in Part

  	
   

  	
   

  
	
  Section
  3.07. Sinking Fund

  	
   

  	
   

  
	
  Section
  3.08. Repurchase of Securities at Option of
  the Holder on Specified Dates.

  	
   

  	
   

  



 


ii





















 


	
  Section
  3.09. Repurchase of Securities at Option
  of the Holder Upon a Change in Control.

  	
   

  	
   

  
	
  Section
  3.10. Effect of Repurchase Notice or
  Change in Control Repurchase Notice

  	
   

  	
   

  
	
  Section
  3.11. Deposit of Repurchase Price or
  Change in Control Repurchase Price

  	
   

  	
   

  
	
  Section
  3.12. Securities Repurchased in Part

  	
   

  	
   

  
	
  Section
  3.13. Covenant to Comply with Securities Laws
  upon Repurchase of Securities

  	
   

  	
   

  
	
  Section
  3.14. Repayment to the Company

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section
  4.01. Payment of Securities

  	
   

  	
   

  
	
  Section
  4.02. SEC and Other Reports

  	
   

  	
   

  
	
  Section
  4.03. Compliance Certificate; Notice of
  Default.

  	
   

  	
   

  
	
  Section
  4.04. Further Instruments and Acts

  	
   

  	
   

  
	
  Section
  4.05. Maintenance of Office or Agency

  	
   

  	
   

  
	
  Section
  4.06. Delivery of Certain Information

  	
   

  	
   

  
	
  Section
  4.07. Liquidated Damages

  	
   

  	
   

  
	
  Section
  4.08. Calculation of Tax Original Issue
  Discount

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5

  
	
  SUCCESSOR CORPORATION

  
	
   

  	
   

  	
   

  
	
  Section
  5.01. When the Company May Consolidate,
  Merge or Transfer Assets

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section
  6.01. Events of Default

  	
   

  	
   

  
	
  Section
  6.02. Acceleration.

  	
   

  	
   

  
	
  Section
  6.03. Other Remedies

  	
   

  	
   

  
	
  Section
  6.04. Waiver of Past Defaults

  	
   

  	
   

  
	
  Section
  6.05. Control by Majority

  	
   

  	
   

  
	
  Section
  6.06. Limitation on Suits

  	
   

  	
   

  
	
  Section
  6.07. Rights of Holders to Receive Payment
  and to Convert

  	
   

  	
   

  
	
  Section
  6.08. Collection Suit by Trustee

  	
   

  	
   

  
	
  Section
  6.09. Trustee May File Proofs of Claim

  	
   

  	
   

  
	
  Section
  6.10. Priorities

  	
   

  	
   

  
	
  Section
  6.11. Suits

  	
   

  	
   

  
	
  Section
  6.12. Waiver of Stay, Extension or Usury
  Laws

  	
   

  	
   

  



 


iii





















 


	
  ARTICLE 7

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section
  7.01. Duties of Trustee.

  	
   

  	
   

  
	
  Section
  7.02. Rights of Trustee

  	
   

  	
   

  
	
  Section
  7.03. Individual Rights of Trustee

  	
   

  	
   

  
	
  Section
  7.04. Trustee’s Disclaimer

  	
   

  	
   

  
	
  Section
  7.05. Notice of Defaults

  	
   

  	
   

  
	
  Section
  7.06. Reports by Trustee to Holders

  	
   

  	
   

  
	
  Section
  7.07. Compensation and Indemnity

  	
   

  	
   

  
	
  Section
  7.08. Replacement of Trustee

  	
   

  	
   

  
	
  Section
  7.09. Successor Trustee by Merger Etc

  	
   

  	
   

  
	
  Section
  7.10. Eligibility; Disqualification

  	
   

  	
   

  
	
  Section
  7.11. Preferential Collection of Claims
  Against Company

  	
   

  	
   

  
	
  Section
  7.12. Force Majeure

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
  DISCHARGE OF INDENTURE

  
	
   

  	
   

  	
   

  
	
  Section
  8.01. Discharge of Liability on Securities

  	
   

  	
   

  
	
  Section
  8.02. Repayment to the Company

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
  AMENDMENTS

  
	
   

  	
   

  	
   

  
	
  Section
  9.01. Without Consent of Holders

  	
   

  	
   

  
	
  Section
  9.02. With Consent of Holders.

  	
   

  	
   

  
	
  Section
  9.03. Compliance with Trust Indenture Act

  	
   

  	
   

  
	
  Section
  9.04. Revocation and Effect of Consents

  	
   

  	
   

  
	
  Section
  9.05. Notation on or Exchange of
  Securities

  	
   

  	
   

  
	
  Section
  9.06. Trustee to Sign Supplemental Indentures

  	
   

  	
   

  
	
  Section
  9.07. Effect of Supplemental Indentures

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
  CONVERSION OF THE SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section 10.01. Conversion
  Privilege.

  	
   

  	
   

  
	
  Section 10.02. Conversion
  Procedure.

  	
   

  	
   

  
	
  Section 10.03. Taxes on Conversion

  	
   

  	
   

  
	
  Section 10.04. Company to Provide
  Stock

  	
   

  	
   

  
	
  Section 10.05. Adjustment of
  Conversion Price

  	
   

  	
   

  
	
  Section 10.06. No Adjustment

  	
   

  	
   

  
	
  Section 10.07. Equivalent
  Adjustments

  	
   

  	
   

  
	
  Section 10.08. Adjustment for Tax
  Purposes

  	
   

  	
   

  
	
  Section 10.09. Notice of
  Adjustment

  	
   

  	
   

  



 


iv





















 


	
  Section 10.10. Notice of Certain
  Transactions

  	
   

  	
   

  
	
  Section 10.11. Effect of
  Reclassification, Consolidation, Merger, Share Exchange or Sale on Conversion
  Privilege

  	
   

  	
   

  
	
  Section 10.12. Trustee’s
  Disclaimer

  	
   

  	
   

  
	
  Section 10.13. Voluntary Reduction

  	
   

  	
   

  
	
  Section 10.14. Conversion Value of
  Securities Tendered.

  	
   

  	
   

  
	
  Section 10.15. Simultaneous
  Adjustments

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 11.01. Trust Indenture Act
  Controls

  	
   

  	
   

  
	
  Section 11.02. Notices

  	
   

  	
   

  
	
  Section 11.03. Communication by
  Holders with Other Holders

  	
   

  	
   

  
	
  Section 11.04. Certificate and
  Opinion as to Conditions Precedent

  	
   

  	
   

  
	
  Section 11.05. Statements Required
  in Certificate or Opinion

  	
   

  	
   

  
	
  Section 11.06. Separability Clause

  	
   

  	
   

  
	
  Section 11.07. Rules by Trustee,
  Paying Agent, Conversion Agent and Registrar

  	
   

  	
   

  
	
  Section 11.08. Legal Holidays

  	
   

  	
   

  
	
  Section 11.09. Governing Law

  	
   

  	
   

  
	
  Section 11.10. No Recourse Against
  Others

  	
   

  	
   

  
	
  Section 11.11. Successors

  	
   

  	
   

  
	
  Section 11.12. Multiple Originals

  	
   

  	
   

  
	
  Section 11.13. Table of Contents
  and Headings.

  	
   

  	
   

  
	
  Section 11.14. Tax Treatment of
  The Securities

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit
  A

  	
  -

  	
  Form
  of Global Security

  
	
  Exhibit
  B

  	
  -

  	
  Transfer
  Certificate

  
	
  Schedule
  A

  	
  -

  	
  Additional
  Shares Table

  
					



 


v





















 


INDENTURE
dated as of December 6, 2004 among AMERICAN EQUITY INVESTMENT LIFE HOLDING
COMPANY, a Delaware corporation (the “Company”),
and U.S. BANK NATIONAL ASSOCIATION, a national banking association organized
under the laws of the United States of America (the “Trustee”).


 


Each party
agrees as follows for the benefit of the other party and for the equal and
ratable benefit of the Holders (as defined below) of the Company’s 5.25%
Contingent Convertible Senior Notes due 2024 (the “Securities”):


 


ARTICLE 1

DEFINITIONS AND INCORPORATION BY
REFERENCE


 


Section 1.01.   Definitions.


 


“Acquisition Value” of the Common Stock
means, for each Trading Day in the Valuation Period, the value of the
consideration paid per share of Common Stock in connection with such Public
Acquirer Change in Control, (i) for any cash, 100% of the face amount of such
cash; (ii) for any Acquirer Common Stock, 100% of the closing sale price of
such acquirer common stock on each such Trading Day; and (iii) for any other
securities, assets or property, 102% of the fair market value of such security,
asset or property on each such Trading Day, as determined by two independent
nationally recognized investment banks selected by the Trustee for this
purpose.


 


“Affiliate” has the meaning provided in Rule
405 under the Securities Act.


 


“Agent” means any Registrar, Paying Agent,
Conversion Agent or co-registrar.


 


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


 


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


 


“Beneficial Owner” shall be determined in
accordance with Rule 13d-3 and Rule 13d-5 promulgated by the SEC under the
Exchange Act or any successor provision, except that: (i) a person shall be
deemed to have “Beneficial Ownership” of all shares of Common Stock that the
Person has the right to acquire, whether exercisable immediately or only after
the passage of time and (ii) any percentage of “Beneficial Ownership” shall be
determined using the definition in clause (i) in both the numerator and the
denominator.


 





















 


“Board of Directors” means either the board
of directors of the Company or any duly authorized committee of such board of
directors authorized to act for it with respect to this Indenture.


 


“Board Resolutions” means a copy of one or
more resolutions, certified by an Officer of the Company to have been duly
adopted or consented to by the Board of Directors and to be in full force and
effect, and delivered to the Trustee.


 


“Business Day” means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which
commercial banks are authorized or required by law, regulation or executive
order to close in The City of New York.


 


“Capital Stock” for any corporation means
any and all shares, interests, rights to purchase, warrants, options,
participations or other equivalents of or interests in (however designated)
stock issued by that corporation, but excluding from all of the foregoing any
debt securities convertible into Capital Stock, whether or not such debt
securities include any right of participation with Capital Stock.


 


“Change in Control” means the occurrence of
one or more of the following events:


 


(a)           any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all or
substantially all of the properties and assets of the Company, to any Person or
group of related Persons, as defined in Section 13(d) of the Exchange Act (a “Group”);


 


(b)           the approval by the holders of the
Capital Stock of the Company of any plan or proposal for the liquidation or
dissolution of the Company, whether or not otherwise in compliance with this
Indenture;


 


(c)           any Person or Group, other than the
Company, any Subsidiary of the Company or any employee benefit plan of the
Company or any Subsidiary, becomes the Beneficial Owner, directly or
indirectly, of shares of Voting Stock representing in excess of 50% of the
aggregate ordinary voting power represented by all of the issued and
outstanding Voting Stock of the Company; or


 


(d)           the first day on which a majority of
the members of the Board of Directors are not Continuing Directors.


 


“Closing Sale Price” on any date means the
closing sale price per share (or if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) on such date for the
Acquirer Common Stock as reported in composite transactions on the New York
Stock Exchange or the principal United States 


 


2





















 


securities exchange on which the Common Stock
is traded or, if the Common Stock is not listed on a United States national or
regional securities exchange, as reported by The NASDAQ System.


 


“Common Stock” shall mean shares of the
Company’s Common Stock, $.01 par value per share, as they exist on the date of
this Indenture or any other shares of Capital Stock of the Company into which
the Common Stock shall be reclassified or changed.


 


“Common Stock Price” on any date means the
closing sale price per share (or if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) on such date for the
Common Stock as reported in composite transactions on the New York Stock
Exchange or the principal United States securities exchange on which the Common
Stock is traded or, if the Common Stock is not listed on a United States
national or regional securities exchange, as reported by The NASDAQ
System.  If the Common Stock is not so
quoted, the “Common Stock Price” will be the average of the mid-point of the
last bid and asked prices for the Common Stock on the relevant date quoted by
each of at least three nationally recognized independent investment banking
firms selected by the Company for this purpose.


 


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


 


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


 


“Continuing Directors” means, as of any date
of determination, any member of the Board of Directors who (a) was a member of
the Board of Directors as of the date hereof or (b) was nominated for election
or elected to the Board of Directors with the approval of a majority of the
Continuing Directors who were members of the Board of Directors at the time of
such nomination or election.


 


“Conversion Price” means $14.47 per share of
Common Stock as of the date of this Indenture, subject to the adjustments
described in Section 10.05 hereof.


 


“Conversion Rate” means the number of shares
of Common Stock equal to $1,000 divided by the Conversion Price, which shall be
approximately 69.1085 prior to any adjustment thereto.


 


3





















 


“Corporate Trust Office” means the office of
the Trustee at which at any time the trust created by this Indenture shall be
administered, which office at the date hereof is located at U.S. Bank National
Association, 60 Livingston Avenue EP-MN-WS3C, St. Paul, MN 55107-2292, or such
other address as the Trustee may designate from time to time by notice to the
Holders and the Company, or the principal corporate trust office of any
successor Trustee (or such other address as a successor Trustee may designate
from time to time by notice to the Holders and the Company).


 


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


 


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


 


“GAAP” means generally accepted accounting
principles set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States, which are in effect
from time to time.


 


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


 


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


 


“Initial Purchasers” shall mean Deutsche
Bank Securities Inc., Raymond James & Associates, Inc. and Advest, Inc.


 


“Liquidated Damages” has the meaning set
forth in the Registration Rights Agreement dated as of December 6, 2004 between
the Company and the Initial Purchasers.


 


“Market Price” means the average of the
Common Stock Prices for 20 consecutive Trading Days commencing 30 Trading Days
before the record date with respect to any distribution, issuance or other
event requiring such computation, appropriately adjusted (as determined in good
faith by the Board of Directors, whose determination shall be conclusive) to
take into account the occurrence, during the period commencing on the first of
such 20 consecutive 


 


4





















 


Trading Days and ending on such record date,
of any event requiring adjustment of the Conversion Price under this Indenture.


 


“Obligations” means all obligations for
principal, premium, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
under which any indebtedness is created, evidenced or secured, including, in
the case of the Securities, Contingent Interest and Liquidated Damages, if any.


 


“Offering Memorandum” means the offering
memorandum of the Company dated December 1, 2004 relating to the offering of
the Securities.


 


“Officer”
means, with respect to any Person, the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President (whether or not such title
is preceded by any modifier such as “Executive, “Senior” or the like), the
Chief Financial Officer, the Treasurer, the Controller or the Secretary of such
Person or any other officer designated by the board of directors of such Person
serving in a similar capacity; provided
that the designation of any such Officer of the Company by the Board of
Directors shall be evidenced in a Board Resolution.


 


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


 


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


 


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


 


“Public Acquirer Change in Control” means
any transaction described in clause (c) of the definition of Change in Control
where the acquirer, or any entity that it is a direct or indirect ‘‘beneficial
owner’’ (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of
the aggregate ordinary voting power of all shares of such acquirer’s capital
stock that are entitled to vote generally in the election of directors, but in
each case other than the Company, has a class of common stock traded on a
national securities exchange or quoted on 


 


5





















 


the Nasdaq National Market or which will be
so traded or quoted when issued or exchanged in connection with such Change in
Control. Such acquirer’s or other entity’s class of common stock traded on a
national securities exchange or quoted on the Nasdaq National Market or which
will be so traded or quoted when issued or exchanged in connection with such
fundamental change is herein referred to as “Acquirer
Common Stock.”


 


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


 


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


 


“SEC” means the Securities and Exchange
Commission.


 


“Security” or “Securities” means any of the Company’s 5.25% Contingent
Convertible Senior Notes Due 2024 issued under this Indenture.


 


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


 


“Significant Subsidiary” has the meaning
ascribed to such term in Regulation S-X (17 CFR Part 210).


 


“Stated Maturity”, when used with respect to
any Security, means the date specified in such Security as the fixed date on
which an amount equal to the principal amount of such Security is due and
payable.


 


“Subsidiary” means, with respect to any
Person, (i) any corporation of which the outstanding Capital Stock having at
least a majority of the votes entitled to be cast in the election of directors
under ordinary circumstances (determined without regard to any classification
of directors) shall at the time be owned, directly or indirectly, by such
Person, (ii) any other Person (other than a partnership) of which at least a
majority of the voting interests under ordinary circumstances is at the time,
directly or indirectly, owned by such Person or (iii) any partnership (a) the
sole general partner or the managing general partner of which is such Person or
a Subsidiary of such Person or (b) the only general partners of which are such
Person or one or more Subsidiaries of such Person (or any combination thereof).


 


6





















 


“Tax Original Issue Discount” means the
amount of ordinary interest income on a Security that must be accrued as
original issue discount for United States federal income tax purposes pursuant
to Treasury regulation section 1.1275-4 or any successor provision.


 


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


 


“Trading Day” means any regular or
abbreviated trading day of The New York Stock Exchange.


 


“Trading Price” on any date of determination
means the average of the secondary market bid quotations per $1,000 principal
amount of Securities obtained by the Trustee for $5,000,000 principal amount of
the Securities at approximately 3:30 p.m., New York City time, on such
determination date from three independent nationally recognized securities
dealers the Company selects, which may include the Initial Purchasers; provided that if at least three such bids
cannot reasonably be obtained by the Trustee, but two such bids are obtained,
then the average of the two bids shall be used, and if only one such bid can
reasonably be obtained by the Trustee, this one bid shall be used.  If the Trustee cannot reasonably obtain at
least one such bid or, in the Company’s reasonable judgment, the bid quotations
are not indicative of the secondary market value of the Securities, then the
Trading Price of the Securities will be determined in good faith by the
Trustee, taking into account in such determination such factors as it, in its
sole discretion after consultation with the Company, deems appropriate.


 


“Transfer Restricted Securities Legend”
means the legend labeled as such and that is set forth in Exhibit A hereto.


 


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


 


“Voting Stock” of a Person means Capital
Stock of such Person of the class or classes pursuant to which the holders
thereof have the general voting power under ordinary circumstances (determined
without regard to any classification of directors) to elect at least a majority
of the board of directors, managers or trustees of such Person (irrespective of
whether or not at the time Capital Stock of any other class or classes shall
have or might have voting power by reason of the happening of any contingency).


 


7





















 


Section 1.02.   Other Definitions.  


 


	
  Term

  	
   

  	
  Defined in
  Section

  
	
   

  	
   

  	
   

  
	
  Acceleration
  Notice

  	
   

  	
  6.02(a)

  
	
  Accepted
  Purchased Shares

  	
   

  	
  10.05(f)

  
	
  Act

  	
   

  	
  1.05(a)

  
	
  Agent
  Members

  	
   

  	
  2.12(e)

  
	
  Authenticating
  Agent

  	
   

  	
  2.02

  
	
  Change in
  Control Repurchase Date

  	
   

  	
  3.09(a)

  
	
  Change in
  Control Repurchase Price

  	
   

  	
  3.09(a)

  
	
  Change in
  Control Repurchase Notice

  	
   

  	
  3.09(c)

  
	
  Company
  Change in Control Repurchase Notice

  	
   

  	
  3.09(b)

  
	
  Company
  Repurchase Notice

  	
   

  	
  3.08(b)

  
	
  Contingent
  Interest

  	
   

  	
  Exhibit A

  
	
  Contingent
  Interest Average Trading Price

  	
   

  	
  Exhibit A

  
	
  Contingent
  Interest Period

  	
   

  	
  Exhibit A

  
	
  Conversion
  Agent

  	
   

  	
  2.03

  
	
  Conversion
  Date

  	
   

  	
  10.02(a)

  
	
  Conversion
  Value

  	
   

  	
  10.14(a)

  
	
  Depositary

  	
   

  	
  2.01(b)

  
	
  Determination
  Date

  	
   

  	
  10.14(b)

  
	
  Divided
  Threshold Amount

  	
   

  	
  10.05(e)

  
	
  DTC

  	
   

  	
  2.01(b)

  
	
  Event of
  Default

  	
   

  	
  6.01

  
	
  Ex-Dividend
  Date

  	
   

  	
  10.01(b)

  
	
  Expiration
  Time

  	
   

  	
  10.05(d)

  
	
  Global
  Security

  	
   

  	
  2.01(b)

  
	
  Interest
  Payment Date

  	
   

  	
  Exhibit A

  
	
  Legal
  Holiday

  	
   

  	
  11.08

  
	
  Net Share
  Amount

  	
   

  	
  10.14(b)

  
	
  Net Shares

  	
   

  	
  10.14(b)

  
	
  Offer
  Expiration Time

  	
   

  	
  10.05(f)

  
	
  Paying Agent

  	
   

  	
  2.03

  
	
  Payment
  Default

  	
   

  	
  6.01(e)

  
	
  Principal
  Return

  	
   

  	
  10.14(b)

  
	
  Pre-Dividend
  Sale Price

  	
   

  	
  10.05(e)

  
	
  Principal
  Value Conversion

  	
   

  	
  10.01(a)

  
	
  Repurchase
  Date

  	
   

  	
  3.08(a)

  
	
  Repurchase
  Notice

  	
   

  	
  3.08(a)

  
	
  Repurchase
  Price

  	
   

  	
  3.08(a)

  
	
  Purchased
  Shares

  	
   

  	
  10.05(d)

  
	
  QIB

  	
   

  	
  2.06(e)

  
	
  Quarter

  	
   

  	
  10.01(a)

  
	
  Record Date

  	
   

  	
  Exhibit A

  
	
  Redemption
  Date

  	
   

  	
  3.01(a)

  



 


8





















 


	
  Term

  	
   

  	
  Defined in
  Section

  
	
   

  	
   

  	
   

  
	
  Redemption
  Price

  	
   

  	
  3.01(a)

  
	
  Registrar

  	
   

  	
  2.03

  
	
  Rule 144A
  Information

  	
   

  	
  4.06

  
	
  Transfer
  Restricted Securities

  	
   

  	
  2.06(e)

  
	
  Ten Day
  Average Closing Stock Price

  	
   

  	
  10.14(a)

  



 


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


 


“Commission” means the SEC.


 


“Indenture Securities” means the Securities.


 


“Indenture Security Holder” means a Holder.


 


“Indenture to be Qualified” means this
Indenture.


 


“Indenture Trustee” or “Institutional Trustee” means the Trustee.


 


“Obligor” on the indenture securities means
the Company.


 


All other TIA
terms incorporated by reference in this Indenture that are defined by the TIA,
defined by a TIA reference to another statute or defined by an SEC rule have
the meanings assigned to them by such definitions.


 


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


 


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


 


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


 


(c)           “or” is not exclusive;


 


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


 


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


 


9





















 


Section 1.05.   Acts of Holders.


 


(a)           Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing or in the case of Securities evidenced by a
Global Security, by any electronic transmission or other message, whether or
not in written format, that complies with the Applicable Procedures; and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company.  Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the “Act” of Holders.  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.


 


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


 


(c)           The ownership of Securities shall be
proved by the register maintained by the Registrar.


 


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


 


(e)           If the Company shall solicit from the
Holders any request, demand, authorization, direction, notice, consent, waiver
or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do
so.  If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record
at the close of business 


 


10





















 


on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the outstanding Securities shall be computed as of
such record date; provided that
no such authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.


 


ARTICLE 2

THE SECURITIES


 


Section 2.01.  Form and Dating.


 


(a)           Forms.  The Securities and the Trustee’s certificate
of authentication shall be substantially in the forms set forth on Exhibit A,
which are a part of this Indenture and incorporated by reference herein.  The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage; provided that any such notation, legend or
endorsement required by usage is in a form acceptable to the Company.  The Company shall provide any such notations,
legends or endorsements to the Trustee in writing.  Each Security shall be dated the date of its
authentication.


 


The terms and
provisions contained in any series of Securities shall constitute, and are
hereby expressly made, a part of this Indenture and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.


 


(b)           Global
Securities. 
Unless otherwise required by law or otherwise contemplated by Section
2.12(a), all of the Securities will be represented by one or more Securities in
global form (a “Global Security”),
which shall be deposited with the Trustee at its Corporate Trust Office, as
custodian for the depositary and registered in the name of The Depository Trust
Company (“DTC”) or the nominee
thereof (such depositary, or any successor thereto, and any such nominee being
hereinafter referred to as the “Depositary”),
duly executed by the Company and authenticated by the Trustee as hereinafter
provided.


 


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


 


11





















 


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


 


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


 


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


 


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


 


The Trustee
may appoint an authenticating agent (the “Authenticating
Agent”) reasonably acceptable to the Company to authenticate
Securities.  Unless otherwise provided in
the appointment, the Authenticating Agent may authenticate Securities whenever
the Trustee may do so.  Each reference in
this Indenture to authentication by the Trustee includes authentication by the
Authenticating Agent.  The Authenticating
Agent has the same rights as an Agent to deal with the Company or with any
Affiliate of the Company.


 


The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.  The Trustee
shall authenticate and deliver Securities for original issue upon receipt of a
Company Order and Board Resolutions authorizing the issuance of the Securities
referenced in such Company Order.


 


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


 


Section 2.03.  Registrar, Paying Agent and Conversion Agent.
 The
Company shall maintain an office or agency where Securities may be presented
for registration of transfer or for exchange (the “Registrar”), an office or agency where Securities may be
presented for repurchase or payment (the “Paying



 


12





















 


Agent”) and an
office or agency where Securities may be presented for conversion (the “Conversion Agent”).  The Registrar shall keep a register of the
Securities and of their transfer and exchange. 
The Company, upon prior written notice to the Trustee, may have one or
more co-registrars, one or more additional paying agents reasonably acceptable
to the Trustee and one or more additional conversion agents.  The term “Paying Agent” includes any
additional paying agent, including any named pursuant to Section 4.05.  The term “Conversion Agent” includes any
additional conversion agent, including any named pursuant to Section 4.05.


 


The Company
shall enter into an appropriate agency agreement with any Registrar, Paying
Agent, Conversion Agent or co-registrar (if other than the Trustee).  Such agreement shall implement the provisions
of this Indenture that relate to such Agent. 
The Company shall notify the Trustee, in advance, of the name and
address of any such Agent.  If the Company
fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.07.  The Company or
any of its Subsidiaries or an Affiliate of the Company or any of its
Subsidiaries may act as Paying Agent, Registrar, Conversion Agent or
co-registrar.


 


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


 


Section 2.04.  Paying Agent to Hold Money in Trust.
 Except
as otherwise provided herein, not later than 11:00 a.m. (New York City time) on
each due date of payments in respect of any Security, the Company shall deposit
with the Paying Agent a sum of money and shares of Common Stock, as applicable,
sufficient to make such payments becoming due. 
The Company shall require each Paying Agent (other than the Trustee) to
agree in writing that such Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money and shares of Common Stock, as applicable,
held by such Paying Agent for the making of payments in respect of the
Securities and shall notify the Trustee of any default by the Company in making
any such payment.  At any time during the
continuance of any such default, such Paying Agent shall, upon the written
request of the Trustee, forthwith pay to the Trustee all moneys and shares of
Common Stock, as applicable, held in trust. 
If the Company, a Subsidiary of the Company or an Affiliate of the
Company or any of its Subsidiaries acts as Paying Agent, it shall segregate the
money and shares of Common Stock, as applicable, held by it as Paying Agent and
hold it as a separate trust fund.  The
Company at any time may require each Paying Agent to pay all money and shares of
Common Stock, as applicable, held by it to the Trustee and to account for any
funds disbursed by it.  Upon doing so,
such Paying Agent shall have no further liability for such money or shares of
Common Stock, as the case may be.  The
Paying Agent and Trustee shall return to the Company upon written request any
money 


 


13





















 


or shares of Common Stock held by them for
the payment of any amount with respect to the Securities that remains unclaimed
for two years, subject to applicable unclaimed property law.  After return to the Company, Holders entitled
to the money or shares of Common Stock must look to the Company for payment as
general creditors unless an applicable abandoned property law designates
another person.


 


Section 2.05.   Holder Lists. 
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders.  If the Trustee is
not the Registrar, the Company shall cause to be furnished to the Trustee on
each June 1 and December 1 and at such other times as the Trustee may request
in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Holders, which list may be conclusively
relied upon by the Trustee and dated not more than 15 days prior to the time
such information is furnished; provided
that the list of Holders provided on June 1 and December 1 shall contain the
list of Holders as of the immediately preceding May 20 and November 20,
respectively.


 


Section 2.06.  Transfer and Exchange.


 


(a)           Subject to Section 2.12 hereof, upon
surrender for registration of transfer of any Securities to the Registrar,
together with a written instrument of transfer satisfactory to the Registrar,
substantially in the form affixed to the form of Security attached as Exhibit A
hereto, duly executed by the Holder thereof or such Holder’s attorney duly
authorized in writing, at the office or agency of the Registrar or
co-registrar, the Company shall execute and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denomination or denominations of a like
aggregate principal amount.


 


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


 


The Company
shall not charge a service charge for any registration of transfer or exchange,
but the Company may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges that may be imposed in connection
with the transfer or exchange of the Securities from the Holder requesting such
transfer or exchange.


 


14





















 


 


The Company
shall not be required to make, and the Registrar need not register, transfers
or exchanges of Securities selected for redemption (except, in the case of
Securities to be redeemed in part, the portion thereof not to be redeemed) or
any Securities in respect of which a Repurchase Notice or Change in Control
Repurchase Notice has been given and not withdrawn by the Holder thereof in
accordance with the terms of this Indenture (except, in the case of Securities
to be repurchased in part, the portion thereof not to be repurchased) or any
Securities for a period of 5 days before the mailing of a notice of redemption
to each Holder of Securities to be redeemed, as provided in Section 3.03.


 


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


 


(c)           The Registrar shall provide to the
Trustee such information as the Trustee may reasonably require in connection
with the delivery by the Registrar of Securities upon transfer or exchange of
Securities.


 


(d)           The Registrar shall not be required
to make registrations of transfer or exchange of Securities during any periods
designated in the Securities or in this Indenture as periods during which such
registration of transfers and exchanges need not be made.


 


(e)           Notwithstanding any other provision
of this Indenture or the Securities, until the expiration of the applicable
holding period set forth in Rule 144(k) of the Securities Act (or any successor
provision), the Securities may not be transferred or exchanged in whole or in
part other than (i) to a person whom the seller reasonably believes is a
qualified institutional buyer, as such term is defined in Rule 144A (a “QIB”), in a transaction meeting the
requirements of Rule 144A, (ii) pursuant to an exemption from registration
under the Securities Act provided by Rule 144 thereunder (if available), (iii)
pursuant to an effective registration statement under the Securities Act or
(iv) to the Company or any of its Subsidiaries, in each of cases (i) through
(iv) in accordance with any applicable securities laws of any state of the
United States.  Whenever any Security is
presented or surrendered for registration of transfer or exchange for a
Security registered in a name other than that of the Holder thereof, such
Security must be accompanied by a certificate in substantially the form set
forth in Exhibit B, dated the date of such surrender and signed by the Holder of
such Security, as to compliance with such restrictions on transfer.  The Registrar shall not be required to accept
for such registration of transfer or exchange any Security not so accompanied
by a properly completed certificate.


 


Any
certificate evidencing a Security (and all securities issued in exchange
therefore or substitution thereof) shall bear the Transfer Restricted
Securities Legend, unless (1) such Security has been sold pursuant to a
registration


 


15





















 


statement that has been
declared effective under the Securities Act (and which continues to be
effective at the time of such transfer) or pursuant to Rule 144 under the
Securities Act or any similar provision then in force, (2) such Security is eligible
for resale pursuant to Rule 144(k) under the Securities Act (or any successor
provision) or (3) otherwise agreed by the Company in writing, with written
notice thereof to the Trustee.


 


Every Security
that bears or is required under this Section 2.06(e) to bear the Transfer
Restricted Securities Legend (the “Transfer
Restricted Securities”) shall be subject to the restrictions on
transfer set forth in this Section 2.06(e) (including those set forth in the
Transfer Restricted Securities Legend), and the Holder of each such Transfer
Restricted Security, by such Security Holder’s acceptance thereof, agrees to be
bound by all such restrictions on transfer. 
As used in this Section 2.06(e), the term “transfer” encompasses any sale, pledge, loan, transfer or
other disposition whatsoever of any Transfer Restricted Security or any
interest therein.


 


Any Security
(or Security issued in exchange or substitution therefor) as to which such
restrictions on transfer shall have expired in accordance with their terms or
as to conditions for removal of the Transfer Restricted Securities Legend have
been satisfied may, upon surrender of such Security for exchange to the
Registrar in accordance with the provisions of this Section 2.06, be exchanged
for a new Security or Securities, of like tenor and aggregate principal amount,
which shall not bear the Transfer Restricted Securities Legend.  If the Transfer Restricted Security
surrendered for exchange is represented by a Global Security bearing a Transfer
Restricted Securities Legend, the principal amount of the Global Security so
legended shall be reduced by the appropriate principal amount and the principal
amount of a Global Security without the Transfer Restricted Securities Legend
shall be increased by an equal principal amount.  If a Global Security without the Transfer
Restricted Securities Legend is not then outstanding, the Company shall execute
and the Trustee shall authenticate and deliver a Global Security without the
Transfer Restricted Securities Legend to the Depositary.


 


Section 2.07.  Replacement Securities.   If
any mutilated Security is surrendered to the Trustee, or the Company and the
Trustee receive evidence to their satisfaction of the mutilation, destruction,
loss or theft of any Security, and there is delivered to the Company and the
Trustee such security or indemnity, at the expense of the Holder thereof, as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
protected purchaser (within the meaning of Section 8-303 of the Uniform
Commercial Code as adopted in the State of New York), the Company shall
execute, and upon the Company’s written request the Trustee shall authenticate
and deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, at the expense of


 


16





















 


the Holder thereof, a new
Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.


 


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


 


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


 


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


 


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


 


Section 2.08.  Outstanding Securities; Determinations of Holders’
Action.   Securities outstanding at
any time are all the Securities authenticated by the Trustee pursuant to this
Indenture, except for those cancelled by it, those delivered to it for
cancellation pursuant to Section 2.10 and those described in this Section 2.08
as not outstanding.  A Security does not
cease to be outstanding because the Company or any Affiliate of the Company
holds the Security; provided that
in determining whether the Holders of the requisite principal amount of
Securities have given or concurred in any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or
such other obligor shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded; and provided further that Securities that the Company or an
Affiliate offers to purchase or acquires pursuant to an offer, exchange offer,
tender offer or otherwise shall not be deemed to be owned by the Company or an
Affiliate until legal title to such Securities passes to the Company or such
Affiliate, as the case may be.  Subject to
the foregoing, only Securities outstanding at the time of such determination
shall be considered in any


 


17





















 


such determination (including,
without limitation, determinations pursuant to Articles 6 and 9).


 


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


 


If the Paying
Agent holds, in accordance with this Indenture, prior to 11:00 a.m., New York
City time, on a Redemption Date, or on the Business Day following a Repurchase
Date or a Change in Control Repurchase Date, or on Stated Maturity, money
sufficient to pay amounts owed with respect to Securities payable on that date,
then immediately after such Redemption Date, Repurchase Date, Change in Control
Repurchase Date or Stated Maturity, as the case may be, such Securities shall
cease to be outstanding and interest (including Contingent Interest and
Liquidated Damages, if any) on such Securities shall cease to accrue; provided that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made.


 


If a Security
is converted in accordance with Article 10, then from and after the time of
conversion on the Conversion Date, such Security shall cease to be outstanding
and interest (including Contingent Interest, if any) shall cease to accrue on
such Security.


 


Section 2.09.   Temporary Securities.  Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities that are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued, and with such appropriate insertions, omissions,
substitutions and other variations as the Officers executing such Securities
may determine, as conclusively evidenced by their execution of such Securities.


 


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


 


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


 


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


 


Section 2.12.  Global Securities.


 


(a)           Notwithstanding any other provisions
of this Indenture or the Securities, a Global Security shall not be exchanged
in whole or in part for a Security registered in the name of any Person other
than the Depositary, any successor Depositary or one or more nominees thereof; provided that a Global Security may be
exchanged for Securities registered in the name of any Person designated by the
Company if  (1) the Depositary has
notified the Company that it is unwilling or unable to continue as Depositary
for such Global Security or such Depositary has ceased to be a “clearing agency”
registered under the Exchange Act, and a successor Depositary is not appointed
by the Company within 90 days, (2) the Company has provided the Depositary with
written notice that it has decided to discontinue use of the system of
book-entry transfer through the Depositary or any successor Depositary or (3)
an Event of Default has occurred or is continuing with respect to the
Securities, and either (i) the Depositary notifies the Trustee that it elects
to cause the issuance of Securities in definitive form or (ii) a holder of a
beneficial interest in a Global Security requests to exchange such beneficial
interest for Securities registered in the name of another Person.  Any


 


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Global Security exchanged
pursuant to clauses (1) or (2) above shall be so exchanged in whole and not in
part, and any Global Security exchanged pursuant to clause (3) above may be
exchanged in whole or from time to time in part as directed by the
Depositary.  Any Security issued in
exchange for a Global Security or any portion thereof shall be a Global
Security; provided that any such
Security so issued that is registered in the name of a Person other than the
Depositary or a nominee thereof shall not be a Global Security.


 


(b)           Securities issued in exchange for a
Global Security or any portion thereof shall be issued in definitive, fully
registered form, without interest coupons, shall have an aggregate principal
amount equal to that of such Global Security or portion thereof to be so
exchanged, shall be registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear the applicable legends
provided for herein.  Any Global Security
to be exchanged in whole shall be surrendered by the Depositary to the Trustee,
as Registrar.  With regard to any Global
Security to be exchanged in part, either such Global Security shall be so
surrendered for exchange or, if the Trustee is acting as custodian for the
Depositary or its nominee with respect to such Global Security, the principal
amount thereof shall be reduced by an amount equal to the portion thereof to be
so exchanged, by means of an appropriate adjustment made on the records of the
Trustee.  Upon any such surrender or
adjustment, the Trustee shall authenticate and deliver the Security issuable on
such exchange to or upon the order of the Depositary or an authorized
representative thereof.


 


(c)           Subject to the provisions of Section
2.12(e), the registered Holder may grant proxies and otherwise authorize any
Person, including Agent Members (as defined below) and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.


 


(d)           If any of the events specified in
Section 2.12(a) occurs, the Company will promptly make available to the Trustee
a reasonable supply of Securities in definitive form.


 


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


 


20





















 


impair, as between the
Depositary, its Agent Members and any other Person on whose behalf an Agent
Member may act, the operation of customary practices of such Persons governing
the exercise of the rights of a holder of any Security.


 


(f)            With respect to any Global Security,
the Company, the Registrar and the Trustee shall be entitled to treat the
Person in whose name such Global Security is registered as the absolute owner
of such Security for all purposes of this Indenture, and neither the Company,
the Registrar nor the Trustee shall have any responsibility or obligation to
any Agent Members or other beneficial owners of the Securities represented by
such Global Security.  Without limiting
the immediately preceding sentence, neither the Company, the Registrar nor the
Trustee shall have any responsibility or obligation with respect to (1) the
accuracy of the records of the Depositary or any other Person with respect to
any ownership interest in any Global Security, (2) the delivery to any Person,
other than a Holder, of any notice with respect to the Securities represented
by a Global Security, including any notice of redemption or repurchase, (3) the
selection of the particular Securities or portions thereof to be redeemed or
repurchased in the event of a partial redemption or repurchase of part of the
Securities outstanding or (4) the payment to any Person, other than a Holder,
of any amount with respect to the principal of or Redemption Price, Repurchase
Price, Change in Control Repurchase Price or accrued but unpaid interest
(including Contingent Interest and Liquidated Damages, if any) with respect to
any Global Security.


 


Section 2.13.  CUSIP Numbers.  The Company may issue the Securities
with one or more CUSIP numbers (if then generally in use), and, if the Company
so elects, the Trustee shall use CUSIP numbers in notices of redemption as a
convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee
in writing of any change in the CUSIP numbers.


 


Section 2.14.  Designation.   The
indebtedness evidenced by the Securities is hereby irrevocably designated as “senior
indebtedness” or such other term denoting seniority for the purposes of any
other existing or future indebtedness of the Company which the Company makes
subordinate in right of payment to any senior (or such other term denoting
seniority) indebtedness of the Company.


 


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ARTICLE 3

REDEMPTION AND REPURCHASES


 


Section 3.01.  Right to Redeem; Notices to Trustee.


 


(a)           Optional
Redemption.  On
or after December 15, 2011, the Company, at its option, may redeem the
Securities in whole at any time or in part from time to time (each such date, a
“Redemption Date”), in any
integral multiple of $1,000, for cash at a price equal to 100% of the principal
amount of the Securities to be redeemed (the “Redemption
Price”), together with accrued but unpaid interest (including
Contingent Interest and Liquidated Damages, if any) thereon, up to but not
including the Redemption Date; provided
that if the Redemption Date is between the close of business on an interest
record date and the opening of business on the related Interest Payment Date,
accrued but unpaid interest (including Contingent Interest and Liquidated
Damages, if any) will be payable to the Holders in whose names the Securities
are registered at the close of business on the relevant interest record date.


 


(b)           Notice
to Trustee.  If
the Company elects to redeem Securities pursuant to this Section 3.01, it shall
notify the Trustee in writing of the Redemption Date, the principal amount of
Securities to be redeemed and the Redemption Price.  The Company shall give the notice to the
Trustee provided for in this Section 3.01(b) by a Company Order prior to the
date notice of redemption is to be given to Holders pursuant to Section 3.03
(unless a shorter notice shall be satisfactory to the Trustee).


 


Section 3.02.  Selection of Securities to Be Redeemed.
 If
less than all the Securities are to be redeemed, subject to the Applicable
Procedures in the case of Global Securities to be so redeemed, the Trustee
shall select the Securities to be redeemed by any method that the Trustee deems
fair and appropriate.  In the event of a
partial redemption, the Trustee may select for redemption portions of the
principal amount of Securities in principal amounts of $1,000 and integral
multiples thereof.


 


Provisions of
this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. 
The Trustee shall notify the Company promptly of the Securities or
portions of Securities to be redeemed.


 


If any
Security selected for partial redemption is converted in part before
termination of the conversion right with respect to the portion of the Security
so selected for redemption, the converted portion of such Security shall be
deemed (so far as possible) to be the portion selected for redemption.  Securities that have been converted during a
selection of Securities to be redeemed may be treated by the Trustee as outstanding
for the purpose of such selection.


 


Section 3.03.  Notice of Redemption.  At least 30 days but not more than 60
days before any Redemption Date, the Company shall mail a notice of redemption
(the “Notice of Redemption”) by
first-class mail, postage prepaid, to each Holder of Securities to be redeemed
at such Holder’s registered address.


 


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The notice of
redemption shall identify the Securities to be redeemed and shall state:


 


(a)           the Redemption Date;


 


(b)           the Redemption Price and, to the
extent known at the time of such notice the amount of accrued but unpaid
interest (including Contingent Interest and Liquidated Damages, if any) payable
on the Redemption Date;


 


(c)           the current Conversion Price;


 


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


 


(e)           that Securities called for redemption
may be converted at any time before the close of business on the second
Business Day immediately preceding the Redemption Date;


 


(f)            that Holders who want to convert
Securities must satisfy the requirements set forth in the Securities and
Article 10 of this Indenture;


 


(g)           that Securities called for redemption
must be surrendered to the Paying Agent in order to collect the Redemption
Price therefor, together with accrued but unpaid interest (including Contingent
Interest and Liquidated Damages, if any) thereon;


 


(h)           if fewer than all the outstanding
Securities are to be redeemed, the certificate numbers, if any, and principal
amounts of the particular Securities to be redeemed;


 


(i)            that, unless the Company defaults in
paying the Redemption Price, interest (including Contingent Interest and
Liquidated Damages, if any) on Securities called for redemption will cease to
accrue on and after the Redemption Date and the Securities called for redemption
will cease to be outstanding; and


 


(j)            the CUSIP number of the Securities
called for redemption.


 


At the Company’s
request, the Trustee shall give the Notice of Redemption in the Company’s name
and at the Company’s expense, so long as the Company makes such request at
least three Business Days prior to the date by which such Notice of Redemption
is to be given to Holders in accordance with this Section 3.03 and the Company
provides the Trustee with all information required for such notice of redemption.


 


If any of the
Securities is in the form of a Global Security, then the Company shall modify
such Notice of Redemption to the extent necessary to


 


23





















 


accord with the Applicable
Procedures that apply to the redemption of Global Securities.


 


Section 3.04.  Effect of Notice of Redemption.  Once notice of redemption is given,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price stated in the notice of redemption, together with
accrued but unpaid interest (including Contingent Interest and Liquidated
Damages, if any) thereon, except for Securities which are converted in
accordance with the terms of this Indenture. 
Upon surrender to the Paying Agent, such Securities shall be paid at the
Redemption Price stated in the notice of redemption, together with accrued but
unpaid interest (including Contingent Interest and Liquidated Damages, if any)
thereon, up to but not including the Redemption Date.


 


Section 3.05.   Deposit of Redemption Price.  Prior to 11:00 a.m. (New York City
time) on the Redemption Date, the Company shall deposit with the Paying Agent
(or if the Company or a Subsidiary thereof or an Affiliate of either of them is
the Paying Agent, shall segregate and hold in trust) money sufficient to pay
the aggregate Redemption Price of all Securities to be redeemed on the
Redemption Date, together with accrued but unpaid interest (including
Contingent Interest and Liquidated Damages, if any) thereon, up to but not
including the Redemption Date, other than Securities or portions of Securities
called for redemption that on or prior thereto have been delivered by the
Company to the Trustee for cancellation or have been converted pursuant to
Article 10.  The Paying Agent shall as
promptly as practicable return to the Company any money not required for making
payments on the Redemption Date because of the conversion of Securities
pursuant to Article 10.  If such money is
then held by the Company in trust and is not required for making payments on
the Redemption Date, it shall be discharged from such trust.


 


Section 3.06.  Securities Redeemed in Part.  Upon surrender of a Security that is
redeemed in part, the Company shall execute and the Trustee shall authenticate
and deliver to the Holder thereof, without service charge, a new Security or
Securities of any authorized denomination as requested by such Holder in an
aggregate principal amount equal to, and in exchange for, the unredeemed
portion of the principal amount of the Security surrendered.


 


Section 3.07.   Sinking Fund.   There shall be no sinking fund provided
for the Securities.


 


Section 3.08.  Repurchase of Securities at Option of the Holder on Specified Dates.


 


(a)           At the option of the Holder, the
Company shall repurchase on December 15, 2011, December 15, 2014 and December
15, 2019 (each, a


 


24





















 


“Repurchase Date”) all or a portion of the Securities held by
such Holder for cash at a price per Security equal to 100% of the aggregate
principal amount of the Security (the “Repurchase
Price”), together with accrued but unpaid interest (including
Contingent Interest and Liquidated Damages, if any) thereon, up to but not
including the Repurchase Date.


 


Securities
shall be repurchased pursuant to this Section 3.08 at the option of the Holder
thereof upon:


 


(i)            delivery to the
Company and the Paying Agent by the Holder of a written notice (a “Repurchase Notice”) at any time from the
opening of business on the date that is 30 Business Days prior to the
Repurchase Date until the close of business on the Business Day prior to such
Repurchase Date stating:


 


(A)          if the Security which
the Holder will deliver to be repurchased is a Security in definitive form, the
certificate number of such Security, or if such Security is a Global Security,
the notice must comply with the Applicable Procedures;


 


(B)           the portion of the
principal amount of the Security which the Holder will deliver to be
repurchased, which portion must be in a principal amount of $1,000 or any
integral multiple thereof; and


 


(C)           that such Security
shall be repurchased as of the Repurchase Date pursuant to the terms and
conditions specified in this Indenture; and


 


(ii)           delivery or
book-entry transfer of such Security to the Paying Agent prior to, on or after
the Repurchase Date (together with all necessary endorsements) at the offices
of the Paying Agent, such delivery being a condition to receipt by the Holder
of the Repurchase Price therefor, together with accrued but unpaid interest
(including Contingent Interest and Liquidated Damages, if any); provided that the Repurchase Price,
together with accrued but unpaid interest (including Contingent Interest and
Liquidated Damages, if any) thereon, shall be so paid pursuant to this Section
3.08 only if the Security so delivered to the Paying Agent shall conform in all
respects to the description thereof in the related Repurchase Notice.


 


The Company
shall repurchase from the Holder thereof, pursuant to this Section 3.08, a portion
of a Security if the principal amount of such portion is $1,000 or an integral
multiple of $1,000.  Provisions of this
Indenture that apply


 


25





















 


to the repurchase of all of a
Security also apply to the repurchase of a portion of a Security.


 


Any repurchase
by the Company contemplated pursuant to the provisions of this Section 3.08
shall be consummated by the delivery to the Paying Agent of the Repurchase
Price, together with accrued but unpaid interest (including Liquidated Damages,
if any) thereon, to be received by the Holder promptly following the later of
the Repurchase Date and the time of delivery or book-entry transfer of the
Security to the Paying Agent in accordance with this Section 3.08.


 


Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the
Repurchase Notice contemplated by this Section 3.08(a) shall have the right to
withdraw such Repurchase Notice at any time prior to the close of business on
the Repurchase Date by delivery of a written notice of withdrawal to the Paying
Agent at the principal office of the Paying Agent in accordance with Section
3.10.


 


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


 


(b)           Company
Repurchase Notice. 
In connection with any repurchase of Securities pursuant to this Section
3.08, the Company shall give written notice of the Repurchase Date to the
Holders (the “Company Repurchase Notice”).  The Company Repurchase Notice shall be sent
by first-class mail to the Trustee and to each Holder not less than 30 Business
Days prior to any Repurchase Date.  Each
Company Repurchase Notice shall include a form of Repurchase Notice to be
completed by a Holder and shall state:


 


(i)    the Repurchase Price, the
Conversion Price and, to the extent known at the time of such notice, the
amount of accrued but unpaid interest (including Contingent Interest and
Liquidated Damages, if any) that will be payable with respect to the Securities
on the Repurchase Date;


 


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


 


(iii)  that Securities as to which
a Repurchase Notice has been given may be converted only if (x) the applicable
Repurchase Notice has been withdrawn in accordance with the terms of this
Indenture and (y) the Securities may be converted pursuant to Article 10 of the
Indenture;


 


(iv)  that Securities must be
surrendered to the Paying Agent to collect payment of the Repurchase Price and
accrued but unpaid interest (including Contingent Interest and Liquidated
Damages, if any);


 


26





















 


(v)   that the Repurchase Price
for any Securities as to which a Repurchase Notice has been given and not withdrawn,
together with accrued but unpaid interest (including Contingent Interest and
Liquidated Damages, if any) payable with respect thereto, shall be paid
promptly following the later of the Repurchase Date and the time of surrender
of such Securities as described in clause (iv);


 


(vi)  the procedures the Holder
must follow under this Section 3.08;


 


(vii) the conversion rights of the
Securities;


 


(viii)                that, unless
the Company defaults in making payment of such Repurchase Price, interest
(including Contingent Interest and Liquidated Damages, if any) on Securities
covered by any Repurchase Notice will cease to accrue on and after the
Repurchase Date;


 


(ix)   the CUSIP number of the
Securities; and


 


(x)    the procedures for
withdrawing a Repurchase Notice or (as specified in Section 3.10).


 


At the Company’s
request, which shall be made at least three Business Days prior to the date by
which the Company Repurchase Notice is to be given to the Holders in accordance
with this Section 3.08, and at the Company’s expense, the Trustee shall give
the Company Repurchase Notice in the Company’s name; provided that, in all cases, the text of the Company
Repurchase Notice shall be prepared by the Company.


 


If any of the
Securities is in the form of a Global Security, then the Company shall modify
such notice to the extent necessary to accord with the Applicable Procedures
that apply to the repurchase of Global Securities.


 


Section 3.09.  Repurchase of Securities at Option of the Holder Upon a Change in
Control.


 


(a)           If at any time that Securities remain
outstanding there shall have occurred a Change in Control, Securities shall be
repurchased by the Company, at the option of the Holder thereof, at a price in
cash (the “Change in Control Repurchase Price”)
equal to 100% of the aggregate principal amount of such Securities plus accrued
but unpaid interest (including Contingent Interest and Liquidated Damages, if
any) thereon, up to but not including the date (the “Change in Control Repurchase Date”) fixed by the Company that
is not less than 30 days nor more than 45 days after the date the Company
Change in Control Repurchase Notice (as defined below) is given, subject to
satisfaction by or on 


 


27





















 


behalf of the Holder of the
requirements set forth in Section 3.09(c); provided
that if the Change in Control Repurchase Date is between the close of business
on an interest record date and the opening of business on the related Interest
Payment Date, accrued but unpaid interest (including Contingent Interest and
Liquidated Damages, if any) will be payable to the Holders in whose names the
Securities are registered at the close of business on the relevant interest
record date.


 


(b)           Company
Change in Control Repurchase Notice.  In connection with any repurchase of
Securities pursuant to this Section 3.09, the Company shall give written notice
of the occurrence of a Change in Control, the repurchase right arising as a
result thereof and the Change in Control Repurchase Date to the Holders and the
Trustee (the “Company Change in Control
Repurchase Notice”).  The
Company Change in Control Repurchase Notice shall be sent by first-class mail
to the Trustee and to each Holder not more than 30 days after the occurrence of
a Change in Control.  Each Company Change
in Control Repurchase Notice shall include a form of Change in Control
Repurchase Notice to be completed by a Holder and shall state:


 


(i)    the Change in Control
Repurchase Date;


 


(ii)   the Change in Control
Repurchase Price, the Conversion Price and, to the extent known at the time of
such notice, the amount of accrued but unpaid interest (including Contingent
Interest and Liquidated Damages, if any) that will be payable with respect to
the Securities on the Change in Control Repurchase Date;


 


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


 


(iv)  that the Company must
receive the Holder’s Change in Control Repurchase Notice on or before the close
of business on the third Business Day prior to the Change in Control Repurchase
Date;


 


(v)   that Securities must be
surrendered to the Paying Agent to collect payment of the Change in Control
Repurchase Price and accrued but unpaid interest (including Contingent Interest
and Liquidated Damages, if any);


 


(vi)  that the Change in Control
Repurchase Price for any Securities as to which a Change in Control Repurchase
Notice has been given and not withdrawn, together with any accrued but unpaid
interest (including Liquidated Damages, if any) payable with respect thereto,
shall be paid promptly following the later of the Change in Control Repurchase
Date and the time of surrender of such Securities as described in clause (v);


 


28





















 


(vii) the procedures the Holder
must follow under this Section 3.09;


 


(viii)                the
conversion rights of the Securities, including that Securities as to which a
Change in Control Repurchase Notice has been given may be converted only if
such Change in Control Repurchase Notice has been withdrawn in accordance with
the terms of this Indenture;


 


(ix)   that, unless the Company
defaults in making payment of such Change in Control Repurchase Price, interest
(including Contingent Interest and Liquidated Damages, if any) on Securities
covered by any Change in Control Repurchase Notice will cease to accrue on and
after the Change in Control Repurchase Date;


 


(x)    the CUSIP number of the
Securities; and


 


(xi)   the procedures for
withdrawing a Change in Control Repurchase Notice (as specified in Section
3.10).


 


At the Company’s
request, which shall be made at least three Business Days prior to the date by
which the Company Change in Control Repurchase Notice is to be given to the
Holders in accordance with this Section 3.09 and at the Company’s expense, the
Trustee shall give the Company Change in Control Repurchase Notice in the
Company’s name; provided that, in
all cases, the text of the Company Change in Control Repurchase Notice shall be
prepared by the Company.


 


If any of the
Securities is in the form of a Global Security, then the Company shall modify
such notice to the extent necessary to accord with the Applicable Procedures
that apply to the repurchase of Global Securities.


 


(c)           For a Security to be so repurchased
at the option of the Holder upon a Change in Control, the Paying Agent must
receive such Security with the form entitled “Option to Elect Repurchase Upon a
Change in Control” (a “Change in Control
Repurchase Notice”) on the reverse thereof duly completed, together
with such Security duly endorsed for transfer, on or before the close of
business on the third Business Day prior to the Change in Control Repurchase
Date.  All questions as to the validity,
eligibility (including time of receipt) and acceptance of any Security for
repurchase shall be determined by the Company, whose determination shall be
final and binding.


 


The Company
shall repurchase from the Holder thereof, pursuant to this Section 3.09, a
portion of a Security if the principal amount of such portion is $1,000 or an
integral multiple of $1,000.  Provisions
of this Indenture that apply 


 


29





















 


to the repurchase of all of a
Security also apply to the repurchase of a portion of a Security.


 


Any repurchase
by the Company contemplated pursuant to the provisions of this Section 3.09
shall be consummated by the delivery to the Paying Agent of the Change in
Control Repurchase Price, together with accrued but unpaid interest (including
Contingent Interest and Liquidated Damages, if any) thereon, to be received by
the Holder promptly following the later of the Change in Control Repurchase
Date and the time of delivery or book-entry transfer of the Security to the
Paying Agent in accordance with this Section 3.09.


 


Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the
Change in Control Repurchase Notice contemplated by this Section 3.09(c) shall
have the right to withdraw such Change in Control Repurchase Notice at any time
prior to the close of business on the Change in Control Repurchase Date by
delivery of a written notice of withdrawal to the Paying Agent at the principal
office of the Paying Agent in accordance with Section 3.10.


 


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


 


Notwithstanding
anything herein to the contrary, the Company’s obligations pursuant to this
Section 3.09 shall be satisfied if a third party makes an offer to repurchase
outstanding Securities after a Change in Control in the manner and at the times
and otherwise in compliance in all material respects with the requirements of
this Section 3.09 and such third party purchases all Securities properly
tendered and not withdrawn pursuant to the requirements of this Section 3.09.


 


(d)           Not more than 30 days after the
occurrence of a Change in Control, the Company shall use its commercially
reasonable efforts to either (i) obtain the consents under all existing
indebtedness required to permit the repurchase of the Securities pursuant to
any Company Change in Control Repurchase Notice or (ii) repay in full all
existing indebtedness and terminate all commitments under all existing
indebtedness, in each case the terms of which would prohibit the repurchase of
the Securities pursuant to any Company Change in Control Repurchase Notice;
provided that if no Holders deliver a Change in Control Repurchase Notice prior
to such date or if the Company shall have satisfied its obligations to
repurchase the Securities of all Holders that have submitted a Change in
Control Repurchase Notice, the Company shall be deemed to have satisfied the
requirements of this Section 3.09(d).


 


Section 3.10.  Effect of Repurchase Notice or Change in Control
Repurchase Notice.   Upon receipt by the Paying
Agent of a Repurchase Notice or 


 


30





















 


Change in Control Repurchase
Notice, the Holder of the Security in respect of which such Repurchase Notice
or Change in Control Repurchase Notice, as the case may be, was given shall
(unless such Repurchase Notice or Change in Control Repurchase Notice is
withdrawn as specified in the following two paragraphs) thereafter be entitled
to receive solely the Repurchase Price or Change in Control Repurchase Price,
together with accrued but unpaid interest (including Contingent Interest and
Liquidated Damages, if any) thereon, to but not including the Repurchase Date
or Change in Control Repurchase Date, as the case may be, with respect to such
Security.  Such Repurchase Price or Change
in Control Repurchase Price, together with accrued but unpaid interest
(including Contingent Interest and Liquidated Damages, if any) thereon, to but
not including the Repurchase Date or Change in Control Repurchase Date, as the
case may be, shall be paid to such Holder, subject to receipt of funds by the
Paying Agent, promptly following the later of (x) the Repurchase Date or the
Change in Control Repurchase Date, as the case may be, with respect to such
Security (provided that the
conditions in Section 3.08 or Section 3.09, as applicable, have been satisfied)
and (y) the time of delivery or book-entry transfer of such Security to the
Paying Agent by the Holder thereof in the manner required by Section 3.08 or
Section 3.09(c), as applicable. 
Securities in respect of which a Repurchase Notice or Change in Control
Repurchase Notice, as the case may be, has been given by the Holder thereof may
not be converted pursuant to Article 10 hereof on or after the date of the
delivery of such Repurchase Notice or Change in Control Repurchase Notice, as
the case may be, unless such Repurchase Notice or Change in Control Repurchase
Notice, as the case may be, has first been validly withdrawn as specified in
the following two paragraphs.


 


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


 


(i)            if the Security
with respect to which such notice of withdrawal is being submitted is a
Security in definitive form, the certificate number of such Security, or if
such Security is a Global Security, the notice must comply with the Applicable
Procedures;


 


(ii)           the principal
amount of the Security with respect to which such notice of withdrawal is being
submitted; and


 


(iii)          the principal
amount, if any, of such Security which remains subject to the original
Repurchase Notice or Change in Control Repurchase Notice, as the case may be,
and which has been or will be delivered for repurchase by the Company.


 


31





















 


There shall be
no repurchase of any Securities pursuant to Section 3.08 if an Event of Default
(other than a default in the payment of the Redemption Price) has occurred
prior to, on or after, as the case may be, the giving by the Holders of such
Securities of the required Repurchase Notice and such Event of Default is
continuing.  The Paying Agent will
promptly return to the respective Holders thereof any Securities (x) with respect
to which a Repurchase Notice has been withdrawn in compliance with this
Indenture, or (y) held by it during the continuance of an Event of Default
(other than a default in the payment of the Repurchase Price) in which case,
upon such return, the Repurchase Notice with respect thereto shall be deemed to
have been withdrawn.


 


Section 3.11.  Deposit of Repurchase Price or Change in Control
Repurchase Price.   Prior to 11:00 a.m. (New
York City time) on the Business Day immediately following the Repurchase Date
or the Change in Control Repurchase Date, as the case may be, the Company shall
deposit with the Trustee or with the Paying Agent (or, if the Company or a
Subsidiary thereof or an Affiliate of either of them is acting as the Paying
Agent, shall segregate and hold in trust as provided in Section 2.04) an amount
of money (in immediately available funds if deposited on such Business Day)
sufficient to pay the aggregate Repurchase Price or Change in Control
Repurchase Price, as the case may be, together with accrued but unpaid interest
(including Contingent Interest and Liquidated Damages, if any) thereon, to but
not including the Repurchase Date or Change in Control Repurchase Date, as the
case may be, of all the Securities or portions thereof which are to be
repurchased as of the Repurchase Date or Change in Control Repurchase Date, as
the case may be.


 


Section 3.12.  Securities Repurchased in Part.  Any Security in definitive form that
is to be repurchased only in part shall be surrendered at the office of the
Paying Agent (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service
charge, one or more new Securities in definitive form, of any authorized
denomination as requested by such Holder in aggregate principal amount equal
to, and in exchange for, the portion of the principal amount of the Security in
definitive form so surrendered which is not repurchased.


 


Section 3.13.   Covenant to Comply with Securities Laws upon
Repurchase of Securities.  When
complying with the provisions of Sections 3.08 or 3.09 hereof (so long as such
offer or repurchase constitutes an “issuer tender offer” for purposes of Rule
13e-4 (which term, as used herein, includes any successor provision thereto)
under the Exchange Act at the time of such offer or repurchase), the Company
shall (i) comply in all material respects with Rule 13e-4 and Rule 14e-1 under
the Exchange Act, (ii) file the related Schedule TO (or 


 


32





















 


any successor schedule, form or
report) under the Exchange Act and (iii) otherwise comply in all material
respects with all federal and state securities laws so as to permit the rights
and obligations under Sections 3.08 or 3.09 to be exercised in the time and in
the manner specified in Sections 3.08 or 3.09.


 


Section 3.14.  Repayment to the Company.  To
the extent that the aggregate amount of cash deposited by the Company pursuant
to Section 3.11 exceeds the aggregate Repurchase Price or Change in Control
Repurchase Price, as the case may be, of the Securities or portions thereof
which the Company is obligated to repurchase as of the Repurchase Date or
Change in Control Repurchase Date, as the case may be, together with accrued
but unpaid interest (including Contingent Interest and Liquidated Damages, if
any) thereon, then, unless otherwise agreed in writing with the Company,
promptly after the Business Day following the Repurchase Date or Change in
Control Repurchase Date, as the case may be, the Trustee shall return any such
excess to the Company together with interest, if any, thereon (subject to the
provisions of Section 7.01(f)).


 


ARTICLE 4

COVENANTS


 


Section 4.01.   Payment of Securities.  The Company shall promptly make all
payments and deliveries in respect of the Securities on the dates and in the
manner provided in the Securities or pursuant to this Indenture.  Any amounts to be given to the Trustee or
Paying Agent, as the case may be, shall be deposited with the Trustee or Paying
Agent, as the case may be, by 11:00 a.m. (New York City time), on the dates
required pursuant to Section 2.04 hereof. 
Interest installments, Liquidated Damages, Contingent Interest,
principal amount, Redemption Price, Repurchase Price, Change in Control
Repurchase Price and interest, if any, due on overdue amounts shall be
considered paid on the applicable date due if at 11:00 a.m. (New York City
time) on such date, the Trustee or the Paying Agent, as the case may be, holds,
in accordance with this Indenture, money sufficient to pay all such amounts
then due.


 


The Company
shall, to the extent permitted by law, pay interest on overdue amounts at the
rate per annum set forth in paragraph 1 of the Securities, compounded
quarterly, which interest shall accrue from the date such overdue amount was
originally due to the date payment of such amount, including interest thereon,
has been made or duly provided for.  All
such interest shall be payable on demand. 
The accrual of such interest on overdue amounts shall be in addition to
the continued accrual of interest on the Securities.


 


Section 4.02.  SEC and Other Reports.   The
Company shall file with the Trustee, within 15 days after it files such annual
and quarterly reports, information, documents and other reports with the SEC,
copies of its annual 


 


33





















 


report and the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act.  In the event the Company is at any
time no longer subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, it shall continue to provide the Trustee with reports
containing substantially the same information as would have been required to be
filed with the SEC had the Company continued to have been subject to such
reporting requirements.  In such event,
such reports shall be provided to the Trustee at the times the Company would
have been required to provide reports had it continued to have been subject to
such reporting requirements.  In
addition, the Company shall comply with the other provisions of TIA Section
314(a).


 


Section 4.03.  Compliance Certificate; Notice of Default.


 


(a)           The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on December 31, 2004) an Officers’
Certificate, stating whether or not to the best knowledge of the signers
thereof the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder), and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which the signers thereof may have knowledge.


 


(b)           The Company shall, so long as any of
the Securities are outstanding, deliver to the Trustee promptly, and in any
event within 15 days after becoming aware of any Default or Event of Default
under this Indenture, an Officers’ Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.  The Trustee shall not
be deemed to have knowledge of a Default or Event of Default unless one of its
Responsible Officers receives written notice of the Default or Event of Default
from the Company or any of the Holders.


 


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


 


Section 4.05.   Maintenance of Office or
Agency.  The
Company will maintain in the Borough of Manhattan, The City of New York, an
office or agency of the Trustee, Registrar, Paying Agent and Conversion Agent
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer, exchange, repurchase,
redemption or conversion and where notices and demands to or upon the Company
in respect of 


 


34





















 


the Securities and this
Indenture may be served.  The Trustee’s
office located at U.S. Bank National Association, 60 Livingston Avenue,
EP-MN-WS3C, St. Paul, MN 55107-2292, shall initially be such office or agency
where Securities may be surrendered for payment, and the Corporate Trust Office
shall initially be such office or agency for all of the other aforesaid
purposes.  The Company shall give prompt
written notice to the Trustee of the location, and of any change in the
location, of any such office or agency (other than a change in the location of the
office or agency of the Trustee).  If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 11.02.  The Company may also from time to time
designate one or more other offices or agencies where the Securities may be
presented or surrendered for any or all such purposes, and may from time to time
rescind such designations; provided
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain at least one Paying Agent having an office or
agency in the Borough of Manhattan, The City of New York.


 


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


 


Section 4.07.  Liquidated Damages.  If at any time Liquidated Damages
become payable by the Company pursuant to the Registration Rights Agreement,
the Company shall promptly deliver to the Trustee a certificate to that effect
and stating (i) the amount of such Liquidated Damages that are payable and (ii)
the date on which such Liquidated Damages are payable pursuant to the terms of
the Registration Rights Agreement. 
Unless and until a Responsible Officer of the Trustee receives such a
certificate, the Trustee may assume without inquiry that no Liquidated Damages
are payable.


 


Section 4.08.  Calculation of Tax Original Issue Discount.   At
the request of the Trustee, the Company shall file with the Trustee promptly at
the end of each calendar year (i) a written notice specifying the amount of Tax
Original 


 


35





















 


Issue Discount (including daily
rates and accrual periods) accrued on the Notes as of the end of such year and
(ii) such other specific information relating to such Tax Original Issue
Discount as may then be reasonably requested by the Trustee and relevant under
the Internal Revenue Code of 1986, as amended from time to time, or the
Treasury regulations promulgated thereunder.


 


ARTICLE 5

SUCCESSOR CORPORATION


 


Section 5.01.  When the Company May Consolidate, Merge or Transfer
Assets.  The
Company shall not consolidate with or merge with or into any other Person or
sell, lease exchange or otherwise transfer (in one transaction or a series of
related transactions) all or substantially all of its properties and assets to
any other Person, unless:


 


(a)           (i) the Company shall be the resulting or surviving corporation or
(ii) the Person (if other than the Company) formed by such consolidation or
into which the Company is merged or the Person which acquires by sale, lease,
exchange or other transfer all or substantially all of the properties and
assets of the Company (A) shall
be a corporation, limited partnership, limited liability company or other
business entity organized and validly existing under the laws of the United
States or any State thereof or the District of Columbia, and (B) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Company under the
Securities and this Indenture;


 


(b)           immediately after giving effect to
such transaction, no Event of Default and no Default shall have occurred and be
continuing; and


 


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


 


For purposes
of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the
properties and assets of one or more Subsidiaries (other than to the Company or
another Subsidiary of the Company), which, if such assets were owned by the
Company would constitute all or substantially all of the properties and assets
of the Company, shall be deemed to be the transfer of all or substantially all
of the properties and assets of the Company. 
The successor Person formed by such consolidation or into which the
Company is merged or the successor Person to which such sale, lease, exchange
or other transfer is made 


 


36





















 


shall succeed to, and (except in the case of
a lease) be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor had been
named as the Company herein; and thereafter, except in the case of a lease and
except for obligations the Company may have under a supplemental indenture
pursuant to Section 9.06, the Company shall be discharged from all obligations
and covenants under this Indenture and the Securities.  Subject to Section 9.06, the Company, the
Trustee and the successor Person shall enter into a supplemental indenture to
evidence the succession and substitution of such successor Person and such
discharge and release of the Company, as applicable.


 


ARTICLE 6

DEFAULTS AND REMEDIES


 


Section 6.01.  Events of Default.  Subject to the provisions set forth
below in this Section 6.01, each of the following events is an “Event of Default”:


 


(a)           the failure to pay interest
(including Contingent Interest and Liquidated Damages, if any) on any
Securities when the same becomes due and payable and the continuation of such
default for a period of 30 days, whether or not such failure shall be due to
compliance with agreements with respect to any other indebtedness or any other
cause;


 


(b)           the failure to pay the principal of
any Securities, when such principal becomes due and payable, at Stated
Maturity, upon acceleration, upon redemption or otherwise (including the
failure to make cash payments due upon conversion or make a payment to
repurchase Securities tendered pursuant to a Repurchase Notice or Change in
Control Repurchase Notice), whether or not such failure shall be due to
compliance with agreements with respect to any other indebtedness or any other
cause;


 


(c)           the failure to provide a Company
Change in Control Repurchase Notice in accordance with the terms of Section
3.09(b) hereof;


 


(d)           a default in the observance or
performance of any other covenant or agreement contained in this Indenture
which default continues for a period of 45 days after the Company receives
written notice specifying the default (and demanding that such default be
remedied) from the Trustee or the beneficial Holders of at least 25% of the
outstanding principal amount of the Securities (except in the case of a default
with respect to Section 5.01, which will constitute an Event of Default with
such notice requirement but without such passage of time requirement);


 


37





















 


(e)           a default under any mortgage,
indenture or instrument under which there may be issued or by which there may
be secured or evidenced any indebtedness of the Company or any of its
Subsidiaries, or the payment of which is guaranteed by the Company or any of
its Subsidiaries, whether such indebtedness now exists or is created after the
issuance of the Securities, which default (i) is caused by a failure to pay
principal of or premium, if any, or interest on such indebtedness after any
applicable grace period provided in such indebtedness on the date of such
default (a “Payment Default”) or
(ii) results in the acceleration of such indebtedness prior to its express
maturity and, in either such case, the principal amount of such indebtedness,
together with the principal amount of any other such indebtedness under which
there has been a Payment Default or the maturity of which has been so
accelerated, aggregates at least $10,000,000; provided
that if any such default is cured or waived or any such acceleration rescinded,
or such indebtedness is repaid, within a period of 45 days from the
continuation of such default beyond the applicable grace period or the
occurrence of such acceleration, as the case may be, such event of default and
any consequential acceleration of the Securities shall be automatically
rescinded, so long as such rescission does not conflict with any judgment or
decree;


 


(f)            one or more judgments in an
uninsured aggregate amount in excess of $10,000,000 shall have been rendered
against the Company or any of its Subsidiaries and remain undischarged, unpaid
or unstayed for a period of 60 days after such judgment or judgments become
final and nonappealable;


 


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


 


(i)    commences a voluntary case
or proceeding;


 


(ii)   consents to the entry of an
order for relief against it in an involuntary case or proceeding;


 


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


 


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


 


(v)   shall generally not pay its
debts when such debts become due or shall admit in writing its inability to pay
its debts generally; or


 


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


 


38





















 


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


 


(ii)           appoints
a custodian of the Company or any Significant Subsidiary of the Company for all
or substantially all of its properties; or


 


(iii)          orders
the liquidation of the Company or any Significant Subsidiary of Company;


 


and in each
case the order or decree remains unstayed and in effect for 60 consecutive
days.


 


Section 6.02.  Acceleration.


 


(a)           If an Event of Default
(other than an Event of Default specified in 
clause (g) or (h) of Section 6.01) shall occur and be continuing,
the Trustee may, and at the written request of the Holders of at least 25% in
principal amount of outstanding Securities shall, declare the principal of and accrued
but unpaid interest (including Contingent Interest and Liquidated Damages, if
any) on all the Securities to be due and payable by notice in writing to the
Company (the “Acceleration Notice”).  Such notice shall specify the respective
Event of Default and that it is a “notice of acceleration.”  Upon the giving of an Acceleration Notice,
the principal of and accrued but unpaid interest (including Contingent Interest
and Liquidated Damages, if any) on all the Securities shall become immediately
due and payable.  If an Event of Default
specified in clause (g) or (h) of Section 6.01 occurs and is continuing,
then all unpaid Obligations on all of the outstanding Securities 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.


 


(b)           At any time after a
declaration of acceleration with respect to the Securities as described in the
preceding paragraph, the Holders of a majority in aggregate principal amount of
the Securities at the time outstanding may rescind and cancel such declaration
and its consequences (i) if the rescission would not conflict with any judgment
or decree, (ii) if all existing Events of Default have been cured or waived
except nonpayment of principal or interest (including Contingent Interest and
Liquidated Damages, if any) that has become due solely because of such
acceleration, (iii) if interest on overdue installments of interest (to the
extent the payment of such interest is lawful) and on overdue principal, which
has become due otherwise than by such declaration of acceleration, has been
paid, (iv) if the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and (v) in
the event of the cure or waiver of an Event of Default of the type described in
clause (d) of Section 6.01, the Trustee shall have received an Officers’
Certificate and an Opinion of Counsel that such Event of Default has been cured
or waived.


 


39





















 


No such
rescission shall affect any subsequent Event of Default or impair any right
consequent thereto.


 


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


 


The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in the
proceeding.  A delay or omission by the
Trustee or any Holder in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of, or
acquiescence in, the Event of Default. 
No remedy is exclusive of any other remedy.  All available remedies are cumulative to the
extent permitted by law.


 


Section 6.04.  Waiver of Past Defaults.  The Holders of a majority in aggregate
principal amount of the Securities at the time outstanding, by notice in
writing to the Trustee (and without notice to any other Holder), may waive an
existing Event of Default and its consequences, except (i) an Event of Default
described in Section 6.01(a) or 6.01(b), (ii) an Event of Default in
respect of a provision that under Section 9.02 cannot be amended without
the consent of each Holder affected or (iii) an Event of Default which
constitutes a failure to convert any Security in accordance with the terms of Article 10.  When an Event of Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other Event
of Default or impair any consequent right. 
This Section 6.04 shall be in lieu of Section 316(a)(1)(B) of
the TIA and such Section 316(a)(1)(B) is hereby expressly excluded from
this Indenture, as permitted by the TIA.


 


Section 6.05.  Control by Majority.  The Holders of a majority in aggregate
principal amount of the Securities at the time outstanding may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee.  However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee
determines in good faith is unduly prejudicial to the rights of other Holders
or would involve the Trustee in personal liability unless the Trustee is
offered indemnity satisfactory to it. 
This Section 6.05 shall be in lieu of Section 316(a)(1)(A) of
the TIA and such Section 316(a)(1)(A) is hereby expressly excluded from
this Indenture, as permitted by the TIA.


 


Section 6.06.  Limitation on Suits.  A Holder may not pursue any remedy
with respect to this Indenture or the Securities unless:


 


40





















 


(a)           the Holder gives to the
Trustee written notice stating that an Event of Default is continuing;


 


(b)           the Holders of at least
25% in aggregate principal amount of the Securities at the time outstanding
make a written request to the Trustee to pursue the remedy;


 


(c)           such Holder or Holders
offer to the Trustee security or indemnity satisfactory to the Trustee against
any loss, liability or expense;


 


(d)           the Trustee does not
comply with the request within 60 days after receipt of such notice, request
and offer of security or indemnity; and


 


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


 


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


 


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


 


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


 


Section 6.09.  Trustee May File Proofs of Claim.  In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether any
amounts in respect of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee


 


41





















 


shall have
made any demand on the Company for the payment of any such amounts) shall be
entitled and empowered, by intervention in such proceeding or otherwise,


 


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


 


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


 


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


 


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


 


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


 


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


 


SECOND:  to Holders for amounts
due and unpaid on the Securities and for any accrued but unpaid interest
amounts due (including Contingent Interest and Liquidated Damages, if any) in
respect of the Securities, ratably, without preference or priority of any kind,
according to such amounts due and payable on the Securities; and


 


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


 


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


 


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


 


Section 6.12.  Waiver of Stay, Extension or Usury Laws.  The Company covenants (to the fullest
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury or other law wherever enacted, now or at
any time hereafter in force, which would prohibit or forgive the Company from
paying all or any portion of any amounts due in respect of the Securities, as
contemplated herein, or which may affect the covenants or the performance of
this Indenture; and the Company (to the fullest extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.


 


ARTICLE 7


TRUSTEE


 


Section 7.01.  Duties of Trustee.


 


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


 


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


 


(i)    the
Trustee need perform only those duties that are specifically set forth in this
Indenture and no others; and


 


(ii)   in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to


 


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the Trustee and conforming to the requirements of this Indenture, but
in case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall examine
the certificates and opinions to determine whether or not they conform to the
requirements of this Indenture, but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein.


 


This Section 7.01(b) shall be in lieu of Section 315(a) of
the TIA and such Section 315(a) is hereby expressly excluded from this
Indenture, as permitted by the TIA.


 


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


 


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


 


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


 


(iii)  the
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.02,
6.04 or 6.05.


 


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


 


(d)           Every provision of this
Indenture that in any way relates to the Trustee is subject to Sections
7.01(a), (b), (c), (e) and (f).


 


(e)           The Trustee may refuse
to perform any duty or exercise any right or power or expend or risk its own
funds or otherwise incur any financial liability unless it receives indemnity
satisfactory to it against any loss, liability or expense.


 


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


 


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


 


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


 


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


 


(c)           the Trustee may execute
any of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, attorneys, custodians or nominees, and
without limiting the generality of the foregoing, the Trustee may appoint an
agent (i) to obtain the quotations referred to in the definition of “Trading
Price of the Securities, “and (ii) to report such quotations or determinations
to the Company and the Depositary on behalf of the Trustee; and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent, attorney, custodian or nominee appointed with due care by it hereunder;


 


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


 


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


 


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


 


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


 


(h)           the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,


 


45





















 


opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled, during normal business
hours, to examine the books, records and premises of the Company, personally or
by agent or attorney at the sole cost of the Company and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation;


 


(i)            except with respect to
Section 4.01, the Trustee shall have no duty to inquire as to the
performance of the Company with respect to the covenants contained in Article 4
of this Indenture.  In addition, the
Trustee shall not be deemed to have knowledge of an Event of Default except (i)
any Default or Event of Default occurring pursuant to Sections 4.01, 6.01(a)
and 6.01(b) or (ii) any Default or Event of Default of which the Trustee shall
have received written notification or obtained actual knowledge;


 


(j)            delivery of reports,
information and documents to the Trustee under Section 4.02 of this
Indenture is for informational purposes only and the Trustee’s receipt of the
foregoing shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company’s compliance with any of their covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates)


 


(k)           the rights, privileges,
protections, immunities and benefits given to the Trustee, including its right
to be indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder (including Paying Agent, Registrar and Conversion
Agent), and to all other Persons employed to act hereunder, including the
Trustee’s officers, employees, agents and custodians;


 


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


 


(m)          neither the Trustee nor
any of its officers, directors, employees or agents shall be liable for any
action taken or omitted under this Indenture or in connection therewith except
to the extent caused by the Trustee’s gross negligence, bad faith or willful
misconduct, as determined by the final judgment of a court of competent
jurisdiction, no longer subject to appeal or review; and anything in this
Indenture to the contrary notwithstanding, to the extent permitted by the TIA
in no event shall the Trustee be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to


 


46





















 


lost profits),
even if the Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action;


 


(n)           the Trustee is not
required to give any bond or surety with respect to the performance of its
duties or the exercise of its powers under this Indenture; and


 


(o)           notwithstanding
anything else herein contained, whenever any provision of this Indenture
indicates that any confirmation of a condition or event is qualified by the
words “to the knowledge of” or “known to” the Trustee or other words of similar
meaning, said words shall mean and refer to the current awareness of one or
more Responsible Officers who are located at the Corporate Trust Office.


 


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


 


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


 


Section 7.05.  Notice of Defaults.  If an Event of Default occurs and if it
is actually known to a Responsible Officer of the Trustee, the Trustee shall
give to each Holder notice of all current Event of Defaults known to it within
30 days after any such Event of Default occurs or, if later, within 15 days
after it is known to the Trustee, unless such Event of Default shall have been
cured or waived before the giving of such notice.  Notwithstanding the preceding sentence,
except in the case of an Event of Default described in Sections 6.01(a) and
6.01(b), the Trustee may withhold the notice if and so long as a trust
committee of officers of the Trustee in good faith determines that withholding
the notice is in the interests of Holders. 
The second sentence of this Section 7.05 shall be in lieu of the
proviso to Section 315(b) of the TIA and such proviso is hereby expressly
excluded from this Indenture, as permitted by the TIA.


 


Section 7.06.  Reports by Trustee to Holders.  Within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, the


 


47





















 


Trustee shall
mail to each Holder a brief report dated as of such May 15 that complies with
TIA Section 313(a), if required by such Section 313(a), but only to
the extent any such report is required to be given pursuant to said TIA Section 313(a),
or any successor provision of the TIA. 
The Trustee also shall comply with TIA Section 313(b).


 


Commencing at the time this Indenture is qualified under the TIA, a
copy of each report at the time of its mailing to Holders shall be filed with
the SEC and each securities exchange, if any, on which the Securities are
listed.  The Company agrees to notify the
Trustee in writing promptly whenever the Indenture is qualified under the TIA
and the Securities become listed on any securities exchange and of any delisting
thereof.


 


Section 7.07.  Compensation and Indemnity.  The Company agrees:


 


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


 


(b)           to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture or any documents executed in connection herewith (including the
reasonable compensation and the expenses, advances and disbursements of its
agents and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence, bad faith or willful misconduct; and


 


(c)           to indemnify the
Trustee or any predecessor Trustee and their respective agents, officers,
directors and employees for, and to hold them harmless against, any loss,
damage, claim, liability, cost or expense (including attorneys’ fees and
expenses and taxes (other than franchise, capital, net worth, employment and ad
valorem taxes and taxes based upon, measured by or determined by the income or
gross receipts of the Trustee)) incurred without negligence or bad faith on
their part, arising out of or in connection with the acceptance or
administration of this trust, 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 Trustee’s exercise or
performance of any of its powers or duties hereunder.


 


To secure the Company’s payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee, except any money or property held in trust to
pay interest installments (including Contingent Interest and Liquidated
Damages, if


 


48





















 


any), the
principal amount, Redemption Price, Repurchase Price, Change in Control
Repurchase Price or interest, if any, due on overdue amounts, as the case may
be, in respect of any particular Securities.


 


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


 


Any amounts due and owing the Trustee hereunder (whether in nature of
fees, expenses, indemnification payments or reimbursement for advances) which
have not been paid by or on behalf of the Company within 15 days following
written notice thereof given to the Company in accordance with the provisions
of Section 11.02, shall bear interest at an interest rate equal to the
Trustee’s announced prime rate in effect from time to time, plus four percent
(4.0%) per annum.


 


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


 


(a)           the Trustee fails to
comply with Section 7.10;


 


(b)           the Trustee is adjudged
bankrupt or insolvent;


 


(c)           a receiver or public
officer takes charge of the Trustee or its property; or


 


(d)           the Trustee otherwise
becomes incapable of acting.


 


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


 


A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company.  Thereupon the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture; provided, notwithstanding the foregoing,
the effectiveness of any such resignation or


 


49





















 


removal shall
be conditioned on receipt by the retiring Trustee of all amounts due and owing
under Section 7.07 hereof.  The
successor Trustee shall mail a notice of its succession to Holders.  The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, subject to the
lien provided for in Section 7.07.


 


If a successor Trustee does not take office within 30 days after the
retiring Trustee gives its notice of resignation or is removed, the retiring
Trustee, the Company or the Holders of a majority in aggregate principal amount
of the Securities at the time outstanding may petition any court of competent
jurisdiction at the expense of the Company for the appointment of a successor
Trustee.


 


If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.


 


Section 7.09.  Successor Trustee by Merger Etc.  If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets (including the administration of the trust created by
this Indenture) to, another Person, the resulting or surviving Person without
any further act shall be the successor Trustee. As soon as practicable, the
successor Trustee shall mail a notice of its succession to the Company and the
Holders.  Any such successor must
nevertheless be eligible and qualified under the provisions of Section 7.01
hereof.


 


Section 7.10.  Eligibility; Disqualification.  The Trustee shall at all times satisfy
the requirements of TIA Section 310(a)(1). 
The Trustee (or its parent holding company) shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
filed annual report of condition. 
Nothing herein contained shall prevent the Trustee from filing with the
SEC the application referred to in the penultimate paragraph of TIA Section 310(b).  The Trustee shall comply with TIA Section 310(b);
provided that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are
met.


 


If at any time the Trustee shall cease to be eligible in accordance
with this Section 7.10, it shall resign immediately in the manner and with
the effect specified in Article 7.


 


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


 


50





















 


Section 7.12.  Force Majeure.  To the extent permitted by the TIA, in
no event shall the Trustee be liable for any failure or delay in the performance
of its obligations hereunder because of circumstances beyond the Trustee’s
control, including, but not limited to, acts of God, flood, war (whether
declared or undeclared), terrorism, fire, riot, embargo or government action,
including any laws, ordinances, regulations, governmental action or the like
which delay, restrict or prohibit the providing of the services contemplated by
this Indenture.


 


ARTICLE 8


DISCHARGE OF
INDENTURE


 


Section 8.01.  Discharge of Liability on Securities.  When (a) the Company delivers to the Trustee all outstanding Securities
(other than Securities replaced pursuant to Section 2.07) for cancellation
or (b) all outstanding
Securities have become due and payable and the Company deposits with the
Trustee cash and shares of Common Stock (as applicable under the terms of this
Indenture) sufficient to pay all amounts due and owing on all outstanding
Securities (other than Securities replaced pursuant to Section 2.07), and
if in either case the Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Section 7.07, cease to be
of further effect.  The Trustee shall
join in the execution of a document prepared by the Company acknowledging
satisfaction and discharge of this Indenture on demand at the cost and expense
of the Company and accompanied by an Officers’ Certificate and Opinion of
Counsel.


 


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


 


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ARTICLE 9


AMENDMENTS


 


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


 


(a)           to comply with Article 5
or Section 10.11;


 


(b)           to cure any ambiguity,
omission, defect or inconsistency in this Indenture;


 


(c)           to make any other
change that does not adversely affect the rights of any Holder in any material
respect; provided that any change
to conform this Indenture to the Offering Memorandum shall be deemed not to
adversely affect the rights of any Holder;


 


(d)           to make provisions with
respect to the conversion right of the Holders pursuant to the requirements of Section 10.01;


 


(e)           to evidence and provide
for the acceptance of appointment hereunder by a successor Trustee with respect
to the Securities; or


 


(f)            to comply with the
provisions of the TIA, or with any requirement of the SEC arising as a result
of the qualification of this Indenture under the TIA.


 


Section 9.02.  With Consent of Holders.


 


The Company and the Trustee may amend or supplement this Indenture or
the Securities without notice to any Holder but with the consent of the Holders
of a majority in aggregate principal amount of the Securities at the time
outstanding.  The Holders of a majority
in aggregate principal amount of the Securities at the time outstanding may
waive compliance by the Company with restrictive provisions of this Indenture
other than as set forth in this Section 9.02 below, and waive any past
Event of Default under this Indenture and its consequences, except a default in
the payment of the principal of, or Redemption Price, Repurchase Price, Change
in Control Repurchase Price of, or any interest on, any Security, or in respect
of a provision which under this Indenture cannot be modified or amended without
the consent of the Holder of each outstanding Security affected.


 


Subject to Section 9.04, without the consent of each Holder
affected, however, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may not:


 


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(a)           change the Stated
Maturity of, or any payment date of any installment of interest (including
Contingent Interest and Liquidated Damages, if any) on, any Security;


 


(b)           reduce the principal
amount or Redemption Price of, or the rate of interest (including Contingent
Interest and Liquidated Damages, if any) on, any Security, whether upon
acceleration, redemption or otherwise, or alter the manner of calculation of
interest or the rate of accrual thereof on any Security;


 


(c)           change the currency for
payment of principal of, or interest (including Contingent Interest and
Liquidated Damages, if any) on, any Security;


 


(d)           impair the right to
institute suit for the enforcement of any payment of any amount with respect to
any Security when due;


 


(e)           adversely affect the
conversion rights provided in Article 10;


 


(f)            modify the provisions
of this Indenture requiring the Company to make an offer to repurchase
Securities upon a Change in Control pursuant to Section 3.09, or to
repurchase the Securities at the option of the Holders pursuant to Section 3.08;


 


(g)           reduce the percentage
of principal amount of the outstanding Securities necessary to modify or amend
this Indenture or to consent to any waiver provided for in this Indenture;


 


(h)           waive a default in the
payment of any amount or shares of Common Stock with respect to any Security
when due (except as provided in Section 6.02); or


 


(i)            make any changes to Section 6.04,
Section 6.07 or this Section 9.02.


 


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


 


After an amendment under this Section 9.02 becomes effective, the
Company shall mail to each Holder a notice briefly describing the
amendment.  Failure to mail the notice or
a defect in the notice shall not affect the validity of the amendment.


 


Section 9.03.  Compliance with Trust Indenture Act.  Every supplemental indenture executed
pursuant to this Article 9 shall comply with the TIA.


 


Section 9.04.  Revocation and Effect of Consents.  Until an amendment, waiver or other
action by Holders becomes effective, a consent thereto by a


 


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Holder of a
Security hereunder is a continuing consent by such Holder and every subsequent
Holder of such Security or portion of such Security that evidences the same
obligation as the consenting Holder’s Security, even if notation of the
consent, waiver or action is not made on such Security.  However, unless otherwise agreed by such
Holder or a predecessor Holder, any such Holder or subsequent Holder may revoke
the consent, waiver or action as to such Holder’s Security or portion of the
Security if the Trustee receives the notice of revocation before the date the
amendment, waiver or action becomes effective. 
After an amendment, waiver or action becomes effective, it shall bind
every Holder.


 


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


 


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


 


Section 9.07.  Effect of Supplemental Indentures.  Upon the execution of any supplemental
indenture under this Article 9, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes, and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.


 


ARTICLE 10


CONVERSION OF
THE SECURITIES


 


Section 10.01.  Conversion Privilege.


 


(a)           Subject to the
provisions of this Article 10, a Holder of a Security may convert such
Security into cash and Common Stock equal to the Conversion


 


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Value on or
prior to December 6, 2024, if any of the following conditions is
satisfied:


 


(i)            during
any fiscal quarter (the “Quarter”)
commencing on or after December 6, 2004, if the Common Stock Price for at
least 20 Trading Days in the period of 30 consecutive Trading Days ending on
the last Trading Day of the Quarter immediately preceding such Quarter
(appropriately adjusted to take into account the occurrence, during such 30
consecutive Trading Day period, of any event requiring adjustment of the
Conversion Price under this Indenture) is more than 120% of the Conversion
Price on such 30th Trading Day;


 


(ii)           such
Security has been called for redemption by the Company pursuant to Section 3.01
and the redemption has not yet occurred, so long as the Holder surrenders such
Security for conversion prior to the close of business on the date that is two
Business Days prior to the applicable Redemption Date, even if the Security is
not otherwise convertible at such time;


 


(iii)             (A)  a
distribution to all holders of Common Stock of rights, warrants or options
entitling them (for a period commencing no earlier than the date of
distribution and expiring not more than 60 days after the date of distribution)
to subscribe for or purchase shares of Common Stock at a price less than the
average Common Stock Price for the 10 Trading Days immediately preceding the
date such distribution was first publicly announced; or


 


        (B)  a
distribution to all holders of Common Stock of cash or other assets, evidences
of Company indebtedness, rights or warrants to purchase or subscribe for
Capital Stock or other securities of the Company, where the fair market value
of such distribution per share of Common Stock (as determined by the Board of
Directors, whose determination shall be conclusive evidence of such fair market
value) exceeds 10% of the Common Stock Price on the Trading Day immediately
preceding the date such distribution was first publicly announced;


 


provided that the
Holder shall have no right to convert any Security pursuant to this Section 10.01(a)(iii)
if the Holder of a Security otherwise participates in the distribution
described in this Section 10.01(a)(iii) on an as-converted basis solely
into Common Stock at the then applicable Conversion Price without conversion of
such Holder’s Securities; or


 


(iv)          if
the Company is party to a consolidation, merger, share exchange, sale of all or
substantially all of its properties and assets or other similar transaction, in
each case pursuant to which the Common Stock is


 


55





















 


subject to conversion into cash, securities or other property from and
after the effective date of such transaction until and including the date that
is 30 days after the effective date of such transaction.


 


(b)           If a Holder elects to
convert its Securities in connection with a specified corporate transaction
pursuant to Sections 10.01(a)(iii)(A) and 10.01(a)(iii)(B) that occurs on or
prior to December 15, 2011, which constitutes a Change in Control (other
than relating to the composition of our Board of Directors as described in
clause (d) of the definition of Change in Control in Section 1.01) and 10%
or more of the fair market value of the consideration for the common shares (as
determined by the Board of Directors, whose determination shall be conclusive
evidence of such fair market value) in the corporate transaction consists of
(i) cash, (ii) other property or (iii) securities that are not traded or
scheduled to be traded immediately following such transaction on a U.S.
national securities exchange or the Nasdaq National Market, then the Conversion
Price of the Securities being converted by such Holder at that time shall be
adjusted so that such Holder will be entitled to receive a number of Common
Shares equal to the sum of (A) the aggregate principal amount of the Securities
to be converted divided by the Conversion Price per $1,000 principal amount of
Securities and (B) the number of additional Common Stock (the “Additional Shares”) determined in the
manner set forth below; provided
that if the Share Price in such transaction is equal to or greater than $60.00
or less than $9.81 (subject in each case to adjustment as described below), the
number of Additional Shares shall be zero; and provided
further that in no event will the Conversion Rate exceed
approximately 101.9368 per $1,000 principal amount of Securities, subject to
adjustments in the same manner as the Conversion Price as set forth in this
Indenture.  For the avoidance of doubt,
the adjustment provided for in this Section 10.01(b) shall only be made
with respect to the Securities being converted in connection with such Change
in Control and shall not be effective as to any Securities not so converted.


 


The number of Additional Shares will be determined by the Company by
reference to the table attached as Schedule A hereto, based on the date
the corporate transaction becomes effective (the “Effective Date”) and the share price paid per share of Common
Stock in the corporate transaction (the “Share
Price”); provided that if the Share Price is between two Share
Price amounts in the table or the Effective Date is between two Effective Dates
in the table, the Company shall determine the number of Additional Shares by a
straight-line interpolation between the number of Additional Shares set forth
for the higher and lower Share Price amounts and the two dates, as applicable,
based on a 365-day year.


 


The Share Prices set forth in the first row of the table (i.e., column
headers) in Schedule A hereto and set forth in the proviso at the end of
paragraph (d) above will be adjusted as of any date on which the Conversion
Price of the Securities is adjusted pursuant to the Indenture.  The adjusted Share Prices will


 


56





















 


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


 


(c)           Notwithstanding the
foregoing, and in lieu of adjusting the Conversion Rate as set forth in Section 10.01(b),
in the case of a Public Acquirer Change in Control, the Company may elect that,
from and after the Effective Date of such Public Acquirer Change in Control,
the right to convert a Security will be changed into a right to convert a
Security into a number of shares of Acquirer Common Stock.  At any time prior to the twentieth day
immediately preceding the proposed Effective Date of the Public Acquirer Change
in Control, the Company may irrevocably elect to adjust the terms of the Holder’s
conversion privilege set forth in Section 10.14 such that following such
adjustment Acquirer Common Stock shall be deemed to be the Common Stock and the
Conversion Rate on and following the Effective Date of such transaction
described in this Section 10.01(c) shall be the product of:


 


(i)            the
Conversion Rate in effect immediately prior to the Effective Date of such
Change in Control, times


 


(ii)           the
average of the quotients obtained, for each Trading Day in the 10 consecutive
Trading Day period commencing on the Trading Day next succeeding the Effective
Date of such Public Acquirer Change in Control (the ‘‘Valuation Period’’), of:


 


(A)               the
Acquisition Value of our Common Stock on each such Trading Day in the Valuation
Period, divided by


 


(B)               the
Closing Sale Price of the Acquirer Common Stock on each such Trading Day in the
Valuation Period.


 


(d)           In the case of the
foregoing Sections 10.01(a)(iii)(A) and 10.01(a)(iii)(B), the Company shall
cause a notice of such distribution to be filed with the Trustee and the
Conversion Agent and to be mailed to each Holder of Securities no later than 20
days prior to the Ex-Dividend Date for such distribution.  Once the Company has given such notice,
Holders may surrender their Securities for conversion at any time thereafter
until the earlier of the close of business on the Business Day prior to the
Ex-Dividend Date or the Company’s announcement that such distribution will not
take place.  The “Ex-Dividend Date” for any such issuance or
distribution means the date immediately prior to the commencement of “ex-dividend”
trading for such issuance or distribution on The New York Stock Exchange or
such other national securities exchange or The


 


57





















 


Nasdaq Stock
Market or similar system of automated dissemination of quotations of securities
prices on which the Common Stock is then listed or quoted.


 


(e)           A Holder may convert a
portion of a Security equal to $1,000 or any integral multiple thereof.  Provisions of this Indenture that apply to
conversion of all of a Security also apply to conversion of a portion of a
Security.


 


If a Security is called for redemption pursuant to Section 3.01,
in order to convert such Security, the Holder must deliver the Security to the
Conversion Agent (or, if the Security is held in book-entry form, complete and
deliver to the Depositary appropriate instructions in accordance with the
Applicable Procedures) at any time prior to the close of business on the day
that is two Business Days prior to the applicable Redemption Date for such
Security (unless the Company shall default in paying the Redemption Price when
due, in which case the conversion right shall terminate on the date such
default is cured and such Security is redeemed).  A Security in respect of which a Holder has
delivered a Repurchase Notice pursuant to Section 3.08 or a Change in
Control Repurchase Notice pursuant to Section 3.09 exercising the option
of such Holder to require the Company to repurchase such Security may be
converted only if such Repurchase Notice or Change in Control Repurchase
Notice, as the case may be, is withdrawn by a written notice of withdrawal
delivered to the Paying Agent prior to the close of business on the Repurchase
Date or the Change in Control Repurchase Date, as the case may be, in accordance
with Section 3.10.


 


(f)            A Holder of Securities
is not entitled to any rights of a holder of Common Stock until such Holder has
converted its Securities into Common Stock.


 


Section 10.02.  Conversion Procedure.


 


(a)           To convert a Security,
a Holder must (i) if the
Security is in definitive form, complete and manually sign the irrevocable
conversion notice on the back of the Security and deliver such notice to the
Conversion Agent, (ii) if the
Security is in definitive form, surrender the Security to the Conversion Agent,
(iii) if the Security is in
definitive form, furnish appropriate endorsements and transfer documents if
required by the Registrar or the Conversion Agent, (iv) pay any transfer or other tax, if required by Section 10.03
and (v) if the Security is held
in book-entry form, complete and deliver to the Depositary appropriate
instructions pursuant to the Applicable Procedures.  The later of (x) the date on which the Holder
satisfies all of the foregoing requirements and (y) the Determination Date is
the “Conversion Date”.  As promptly as practicable after the
Conversion Date and in any event within four Business Days thereof, the Company
shall deliver to the Holder through the Conversion Agent cash and shares of
Common Stock in the amounts calculated in accordance with Section 10.14.


 


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(b)           The Person in whose
name the Security is registered shall be deemed to be a stockholder of record
on the Conversion Date; provided
that no surrender of a Security on any date when the stock transfer books of
the Company shall be closed shall be effective to constitute the Person or
Persons entitled to receive the shares of Common Stock upon such conversion as
the record holder or holders of such shares of Common Stock on such date, but
such surrender shall be effective to constitute the Person or Persons entitled
to receive such shares of Common Stock as the record holder or holders thereof
for all purposes at the close of business on the next succeeding day on which
such stock transfer books are open; provided,
further that such conversion shall be at the Conversion Price in
effect on the date that such Security shall have been surrendered for
conversion, as if the stock transfer books of the Company had not been closed.  Upon conversion of a Security, such Person
shall no longer be a Holder of such Security.


 


(c)           No payment or
adjustment will be made for accrued but unpaid interest (including Contingent
Interest and Liquidated Damages, if any) on a converted Security or for
dividends or distributions on shares of Common Stock issued upon conversion of
a Security.  The Company shall not adjust
the Conversion Price to account for the accrued but unpaid interest.  Notwithstanding the foregoing, if Securities
are converted after the close of business on a regular record date and prior to
the opening of business on the next Interest Payment Date, including the date
of maturity, Holders of such Securities at the close of business on such
regular record date shall receive the accrued but unpaid interest (including
Contingent Interest and Liquidated Damages, if any) payable on such Securities
on the corresponding Interest Payment Date notwithstanding the conversion.  In such event, such Security, when
surrendered for conversion, must be accompanied by delivery of a check payable
to the Conversion Agent in an amount equal to the accrued but unpaid interest
(including Contingent Interest and Liquidated Damages, if any) payable on such
Interest Payment Date on the portion so converted.  If such payment does not accompany such
Security, the Security shall not be converted; provided
that no such check shall be required if such Security has been
called for redemption on a Redemption Date within the period between the close
of business on such record date and the opening of business on such Interest
Payment Date, or if such Security is surrendered for conversion on the Interest
Payment Date.  If the Company defaults in
the payment of interest (including Contingent Interest and Liquidated Damages,
if any) payable on the Interest Payment Date, the Conversion Agent shall
promptly repay such funds to the Holder.


 


(d)           Upon surrender of a
Security that is converted in part, the Company shall execute, and the Trustee
shall, upon receipt of a Company Order, authenticate and deliver to the Holder,
a new Security equal in principal amount to the unconverted portion of the
Security surrendered.


 


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Section 10.03.  Taxes on Conversion.  If a Holder converts a Security, the
Company shall pay any documentary, stamp or similar issue or transfer tax due
on the issue of shares of Common Stock upon such conversion.  However, the Holder shall pay any tax which
is due because the Holder requests the shares to be issued in a name other than
the Holder’s name.  The Conversion Agent
may refuse to deliver the certificates representing the Common Stock being
issued in a name other than the Holder’s name until the Conversion Agent
receives a sum sufficient to pay any tax which will be due because the shares
are to be issued in a name other than the Holder’s name.  Nothing herein shall preclude any tax
withholding required by law or regulations.


 


Section 10.04.  Company to Provide Stock.  The Company shall, prior to issuance of
any Securities hereunder, and from time to time as may be necessary, reserve,
out of its authorized but unissued Common Stock, a sufficient number of shares
of Common Stock to permit the conversion of all outstanding Securities into
shares of Common Stock.  The certificates
representing the shares of Common Stock issued upon conversion of Transfer
Restricted Securities shall bear a legend substantially in the following form:


 


“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE ‘‘SECURITIES ACT’’), OR ANY STATE OR OTHER SECURITIES
LAWS.  NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT IT IS A ‘‘QUALIFIED
INSTITUTIONAL BUYER’’ (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (‘‘RULE
144A’’)) AND IS PURCHASING IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (2) AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO
THE DATE WHICH IS THE LATER OF (X) TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS
PERMITTED BY RULE 144(k) OF THE SECURITIES ACT) AFTER THE LATER OF THE LAST
DATE OF ORIGINAL ISSUANCE OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
SECURITY) AND THE LAST DATE ON WHICH AMERICAN EQUITY INVESTMENT LIFE


 


60





















 


HOLDING COMPANY OR ANY AFFILIATE OF AMERICAN EQUITY INVESTMENT LIFE
HOLDING COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW
(THE ‘‘RESALE RESTRICTION TERMINATION DATE’’) EXCEPT (A) TO AMERICAN EQUITY
INVESTMENT LIFE HOLDING COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER, (C)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (D) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A ‘‘QUALIFIED INSTITUTIONAL BUYER’’ AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND; AND, IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO AMERICAN EQUITY INVESTMENT LIFE HOLDING
COMPANY AND THE TRUSTEE (WITH RESPECT TO TRANSFERS OF SECURITIES) OR THE
TRANSFER AGENT (WITH RESPECT TO TRANSFERS OF COMMON STOCK). THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.”


 


The Company covenants that all shares of Common Stock delivered upon
conversion of the Securities shall be newly issued shares or treasury shares,
shall be duly authorized, validly issued, fully paid and non-assessable and
shall be free from preemptive rights and free of any lien or adverse claim.


 


The Company will endeavor promptly to comply with all federal and state
securities laws regulating the offer and delivery of shares of Common Stock
upon conversion of Securities, if any, and will list or cause to have quoted
such shares


 


61





















 


of Common
Stock on each national securities exchange or in the over-the-counter market or
such other market on which the Common Stock is then listed or quoted.


 


Section 10.05.  Adjustment of Conversion Price.  The Conversion Price shall be adjusted
(without duplication) from time to time by the Company as follows:


 


(a)           In case the Company
shall (i) pay a dividend or
other distribution in shares of Common Stock to all holders of Common Stock, (ii) subdivide its outstanding Common
Stock into a greater number of shares or (iii) combine its outstanding Common Stock into a smaller number
of shares, the Conversion Price shall be adjusted so that the Holder of any
Security thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock which it would have owned or been entitled to
receive had such Security been converted immediately prior to the happening of
such event.  For the purposes of
calculating the Conversion Price adjustment pursuant to this Section 10.05(a),
Holders of a Security shall be treated as if they had the right to convert the
Security solely into Common Stock at the then applicable Conversion Price.  An adjustment made pursuant to this Section 10.05(a)
shall become effective immediately after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of subdivision, combination or reclassification.


 


(b)           In case the Company
shall issue to all holders of Common Stock rights, warrants or options
entitling such holders (for a period commencing no earlier than the date of
distribution and expiring not more than 60 days after the date of distribution)
to subscribe for or purchase shares of Common Stock (or securities convertible
into Common Stock) at a price per share less than the average Common Stock
Price for the 10 Trading Days immediately preceding the date the distribution
of such rights, warrants or options was first publicly announced by the
Company, the Conversion Price shall be decreased so that the Conversion Price
shall equal the price determined by multiplying the Conversion Price in effect
immediately prior to the record date for such issue by a fraction,


 


(i)    the
numerator of which shall be the number of shares of Common Stock outstanding on
such date of public announcement, plus the number of shares which the aggregate
subscription or purchase price for the total number of shares of Common Stock
offered by the rights, warrants or options so issued (or the aggregate
conversion price of the convertible securities offered by such rights, warrants
or options) would purchase at such average Common Stock Price, and


 


(ii)   the
denominator of which shall be the number of shares of Common Stock outstanding
on such date of public announcement plus the number of additional shares of Common
Stock offered by such rights,


 


62





















 


warrants or options (or into which the convertible securities so
offered by such rights, warrants or options are convertible).


 


provided that no adjustment will be made if
Holders of the notes are entitled to participate in the distribution on
substantially the same terms as holders of our Common Stock as if such Holders
had converted their Securities solely into Common Stock immediately prior to
such distribution at the then applicable Conversion Price.  Such adjustment shall be made successively
whenever any such rights, warrants or options are issued, and shall become
effective immediately after such record date. 
If at the end of the period during which such rights, warrants or
options are exercisable not all rights, warrants or options shall have been
exercised, the adjusted Conversion Price shall be immediately readjusted to
what it would have been upon application of the foregoing adjustment
substituting the number of additional shares of Common Stock actually issued
(or the number of shares of Common Stock issuable upon conversion of
convertible securities actually issued) for the total number of shares of
Common Stock offered (or convertible securities offered).


 


(c)           In case the Company
shall distribute to all holders of Common Stock any shares of Capital Stock of
the Company (other than Common Stock) or evidences of its indebtedness, other
securities or other assets, or shall distribute to all holders of Common Stock,
rights, warrants or options to subscribe for or purchase any of its securities
(excluding (i) those rights, options and warrants referred to in Section 10.05(b);
(ii) those dividends, distributions, subdivisions and combinations referred to
in Section 10.05(a); and (iii) those dividends and distributions paid in
cash referred to in Section 10.05(e)), then in each such case the
Conversion Price shall be decreased so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the date of such distribution by a fraction,


 


(i)    the
numerator of which shall be the Market Price on the record date for the
determination of holders of Common Stock entitled to receive such distribution
less the fair market value on such record date (as determined by the Board of
Directors, whose determination shall be conclusive evidence of such fair market
value) of the portion of the Capital Stock or evidences of indebtedness,
securities or assets so distributed or of such rights, warrants or options, in
each case  applicable to one share of
Common Stock, and


 


(ii)   the
denominator of which shall be the Market Price on such record date,


 


such
adjustment to become effective immediately after the record date for such
distribution; provided that if
the numerator of the foregoing fraction is less than $1.00 (including a
negative amount), then in lieu of the foregoing adjustment,


 


63





















 


adequate
provision shall be made so that each Holder shall have the right to receive
upon conversion, in addition to the cash and Common Stock issuable upon such
conversion, the distribution such Holder would have received had such Holder
converted its Security solely into Common Stock at the then applicable
Conversion Price immediately prior to the record date for such distribution; provided that no adjustment will be made
if Holders of the notes are entitled to participate in the distribution on
substantially the same terms as holders of our Common Stock as if such Holders
had converted their Securities solely into Common Stock immediately prior to
such distribution at the then applicable Conversion Price;


 


Notwithstanding the foregoing, if the distribution by the Company to
all holders of its Common Stock consists of Capital Stock of, or similar equity
interests in, a Subsidiary or other business unit of the Company (unless such
Capital Stock or similar equity interests are distributed to holders in such
distribution as if such holders had converted their Securities into Common
Stock), the Conversion Price shall be decreased so that the same shall be equal
to the rate determined by multiplying the Conversion Price in effect on the
record date with respect to such distribution by a fraction:


 


(i)    the
numerator of which shall be the average Common Stock Price over the Spinoff
Valuation Period; and


 


(ii)   the
denominator of which shall be the sum of (x) the average Common Stock Price
over the ten (10) consecutive Trading Day period (the “Spinoff Valuation Period”) commencing on
and including the fifth Trading Day after the date on which “ex-dividend
trading” commences for such dividend or distribution on the New York Stock
Exchange or such other national or regional exchange or market on which the
Common Shares are then listed or quoted plus (y) the average fair market value
(as determined by the Board of Directors and described in a resolution of the
Board of Directors) over the Spinoff Valuation Period of the portion of the
assets so distributed applicable to one share of Common Stock,


 


such adjustment to become effective immediately prior to the opening of
business on the day following such record date; provided that the Company may
in lieu of the foregoing adjustment make adequate provision so that each Holder
shall have the right to receive upon conversion the amount of the distribution
such holder would have received had such holder converted each Note on the
record date with respect to such distribution. 
If any dividend or distribution of the type described in this Section 10.05(c)
is declared but not so paid or made, such adjustment to the Conversion Price
shall be reversed.  In any case in which
this paragraph is applicable, Section 10.05(a), Section 10.05(b) and
the first paragraph of this Section 10.05(c) shall not be applicable.


 


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(d)           In case the Company or
any Subsidiary of the Company makes a payment in respect of a tender or
exchange offer, other than an odd-lot offer, to holders of our Common Stock to
the extent that, together with any cash and the fair market value of any other
consideration in respect of any tender or exchange offer by us or any of our
subsidiaries for shares of our Common Stock consummated within the preceding 12
months not triggering a Conversion Price adjustment, exceeds an amount equal to
12.5% of the market capitalization of our Common Stock on the expiration date
of the tender offer, the Conversion Price shall be decreased so that the same
shall equal the price determined by multiplying the Conversion Price in effect
immediately prior to the Expiration Time by a fraction,


 


(i)    the
numerator of which shall be the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) at the last time (the “Offer Expiration Time”) tenders or
exchanges may be made pursuant to such tender or exchange offer (as it may be
amended) multiplied by the Common Stock Price on the Trading Day next
succeeding the Offer Expiration Time, and


 


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


 


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


 


(e)           In case the Company
shall declare a cash dividend or cash distribution to all of the holders of
Common Stock such that the aggregate cash dividends or cash distributions per
share of Common Stock in any fiscal year exceeds $0.02 (the “Dividend Threshold Amount”), the Conversion
Price shall be decreased so that the Conversion Price shall equal the price
determined by


 


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multiplying
the Conversion Price in effect immediately prior to the record date for such
dividend or distribution by a fraction,


 


(i)    the
numerator of which shall be the average of the Common Stock Price for the three
consecutive Trading Days ending on the Trading Day immediately preceding the
record date for such dividend or distribution (the “Pre-Dividend Sale Price”), minus the difference between the
full amount of the dividend or distribution to the extent payable in cash
applicable to one share of our Common Stock and the Dividend Threshold Amount,
and


 


(ii)   the
denominator of which shall be the Pre-Dividend Sale Price,


 


such
adjustment to become effective immediately after the record date for such
dividend or distribution; provided
that if the numerator of the foregoing fraction is less than $1.00 (including a
negative amount), then in lieu of the foregoing adjustment, adequate provision
shall be made so that each Holder shall have the right to receive upon conversion,
in addition to the cash and Common Stock issuable upon such conversion, the
amount of cash such Holder would have received had such Holder converted its
Security solely into Common Stock at the then applicable Conversion Price
immediately prior to the record date for such cash dividend or cash
distribution.  If such cash dividend or
cash distribution is not so paid or made, the Conversion Price shall again be
adjusted to be the Conversion Price that would then be in effect if such
dividend or distribution had not been declared.


 


(f)            In case of a tender or
exchange offer made by a Person other than the Company or any Subsidiary of the
Company for an amount that increases the offeror’s ownership of Common Stock to
more than twenty-five percent (25%) of the Common Stock outstanding and shall
involve the payment by such Person of consideration per share of Common Stock
having a fair market value (as determined by the Board of Directors, whose
determination shall be conclusive, and described in a resolution of the Board
of Directors) that as of the Offer Expiration Time exceeds the Common Stock
Price on the Trading Day next succeeding the Offer Expiration Time, and in
which, as of the Offer Expiration Time the Board of Directors is not
recommending rejection of the offer, the Conversion Price shall be decreased so
that the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the Offer Expiration Time by a fraction,


 


(i)    the
numerator of which shall be the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) at the Offer Expiration Time
multiplied by the Common Stock Price on the Trading Day next succeeding the
Offer Expiration Time, and


 


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


 


such
adjustment to become effective immediately prior to the opening of business on
the day following the Offer Expiration Time. 
If such Person is obligated to purchase shares pursuant to any such
tender or exchange offer, but such Person is permanently prevented by applicable
law from effecting any such purchases or all such purchases are rescinded, the
Conversion Price shall again be adjusted to be the Conversion Price that would
then be in effect if such tender or exchange offer had not been made.  Notwithstanding the foregoing, the adjustment
described in this Section 10.05(f) shall not be made if, as of the Offer
Expiration Time, the offering documents with respect to such offer disclose a
plan or intention to cause the Company to engage in any transaction described
in Article 5.


 


(g)           In any case in which
this Section 10.05 shall require that an adjustment be made immediately
following a record date established for purposes of this Section 10.05,
the Company may elect to defer (but only until five Business Days following the
filing by the Company with the Trustee of the certificate described in Section 10.09)
issuing to the holder of any Security converted after such record date the
cash, shares of Common Stock and other Capital Stock of the Company issuable
upon such conversion over and above the cash, shares of Common Stock and other
Capital Stock of the Company issuable upon such conversion only on the basis of
the Conversion Price prior to adjustment; and, in lieu of the cash and shares
the issuance of which is so deferred, the Company shall issue or cause its
transfer agents to issue due bills or other appropriate evidence of the right
to receive such shares.


 


(h)           Before taking any
action which would cause an adjustment decreasing the Conversion Price so that
the shares of Common Stock issuable upon conversion of the Securities would be
issued for less than the par value of such Common Stock, the Company will take
all corporate action which may be necessary in order that the Company may
validly and legally issue fully paid and non-assessable shares of such Common
Stock at such adjusted Conversion Price.


 


Section 10.06.  No Adjustment.  No adjustment in the Conversion Price
shall be required unless the adjustment would require an increase or decrease
of at


 


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least 1% in
the Conversion Price as last adjusted; provided
that any adjustments which by reason of this Section 10.06 are
not required to be made shall be carried forward and taken into account in any
subsequent adjustment.  All calculations
under this Article 10 shall be made to the nearest cent, with one-half
cent rounded up, or to the nearest ten thousandth (0.0001) of a share, with
each five hundred thousandth (0.00005) of a share being rounded up, as the case
may be..


 


No adjustment need be made upon the issuance of Common Stock under any
present or future employee benefits plan or program of the Company.


 


No adjustment need be made upon the issuance of Common Stock pursuant
to (i) the exercise of any options, warrants or rights to purchase such Common
Stock, (ii) the exchange of any exchangeable securities for such Common Stock
or (iii) the conversion of any convertible securities into such Common Stock,
in each case so long as such options, warrants, rights to purchase,
exchangeable securities or convertible securities are outstanding as of the
date on which the Securities are first issued.


 


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


 


To the extent that the Securities become convertible into cash, no
adjustment need be made thereafter as to the cash.  Interest will not accrue on the cash.


 


Section 10.07.  Equivalent Adjustments.  If, as a result of an adjustment made
pursuant to Section 10.05 above, the Holder of any Security thereafter surrendered
for conversion shall become entitled to receive any shares of Capital Stock of
the Company other than shares of Common Stock, thereafter the Conversion Price
of such other shares so receivable upon conversion of any Securities shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to Common Stock
contained in this Article 10.


 


Section 10.08.  Adjustment for Tax Purposes.  The Company shall be entitled to make
such reductions in the Conversion Price, in addition to those required by Section 10.05,
as the Board of Directors in its discretion shall determine to be advisable in
order that any stock dividends, subdivisions of shares, distributions of rights
to purchase stock or other securities, or distributions of securities
convertible into or exchangeable for stock hereafter made by the Company to its
holders of Common Stock shall not be taxable to such holders.


 


Section 10.09.  Notice of Adjustment.  Whenever the Conversion Price is
adjusted, or Holders become entitled to other securities or due bills, the
Company shall promptly mail to Holders a notice of the adjustment and file with
the Trustee


 


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an Officers’
Certificate briefly stating the facts requiring the adjustment and the manner
of computing it.  The certificate shall
be conclusive evidence of the correctness of such adjustment, absent manifest
error, and the Trustee may conclusively assume that, unless and until such
certificate is received by it, no such adjustment is required.


 


Section 10.10.  Notice of
Certain Transactions.  In case:


 


(a)           the Company shall
declare a dividend (or any other distribution) on the Common Stock; or


 


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


 


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


 


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


 


the Company
shall cause to be filed with the Trustee and the Conversion Agent and to be
mailed to each Holder of Securities at its address appearing on the list
provided for in Section 2.05, as promptly as possible but in any event at
least ten days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution or rights, warrants or options, or, if a record is not
to be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution or rights are to be determined, or (y)
the date on which such reclassification, consolidation, merger, share exchange,
sale, transfer, dissolution, liquidation or winding-up is expected to become
effective or occur, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, share exchange, sale, transfer, dissolution, liquidation
or winding-up.  Failure to give such
notice, or any defect therein, shall not affect the legality or validity of
such dividend, distribution, reclassification, consolidation, merger, sale,
share exchange, transfer, dissolution, liquidation or winding-up.


 


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Section 10.11.  Effect of Reclassification, Consolidation, Merger,
Share Exchange or Sale on Conversion Privilege.  If any of the following shall occur,
namely:  (i) any reclassification or
change of 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 subdivision or combination); (ii) any consolidation, combination,
merger or share exchange to which the Company is a party other than a merger in
which the Company is the resulting or surviving corporation and which does not
result in any reclassification of, or change (other than a change in name, or
par value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination) in, outstanding shares
of Common Stock; or (iii) any sale or conveyance of all or substantially all of
the properties and assets of the Company, then the Company, or such successor
or purchasing corporation, as the case may be, shall, as a condition precedent
to such reclassification, change, consolidation, merger, share exchange, sale
or conveyance, execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then outstanding shall have the
right to convert such Security into the kind and amount of cash, securities or
other property receivable upon such reclassification, change, consolidation, merger,
share exchange, sale or conveyance by a holder of the number of shares of
Common Stock deliverable upon conversion of such Security solely into Common
Stock at the then applicable Conversion Price immediately prior to such
reclassification, change, consolidation, merger, share exchange, sale or
conveyance.  Such supplemental indenture
shall provide for adjustments of the Conversion Price which shall be as nearly
equivalent as may be practicable to the adjustments of the Conversion Price
provided for in this Article 10. 
If, in the case of any such consolidation, merger, share exchange, sale
or conveyance, the stock or other securities and property (including cash)
receivable thereupon by a holder of Common Stock includes shares of Capital
Stock or other securities and property of a corporation other than the
successor or purchasing corporation, as the case may be, in such consolidation,
merger, share exchange, sale or conveyance, then such supplemental indenture
shall also be executed by such other corporation and shall contain such
additional provisions to protect the interests of the Holders of the Securities
as the Board of Directors shall reasonably consider necessary by reason of the
foregoing.  The provision of this Section 10.11
shall similarly apply to successive consolidations, mergers, share exchanges,
sales or conveyances.  Notwithstanding
the foregoing, a distribution by the Company to all or substantially all
holders of Common Stock for which an adjustment to the Conversion Price or
provision for conversion of the Securities may be made pursuant to Section 10.05
shall not be deemed to be a sale or conveyance of all or substantially all of
the properties and assets of the Company for purposes of this Section 10.11.


 


In the event the Company shall execute a supplemental indenture
pursuant to this Section 10.11, the Company shall promptly file with the
Trustee an


 


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Opinion of
Counsel stating that such supplemental indenture is authorized or permitted by
this Indenture and an Officers’ Certificate briefly stating the reasons
therefor, the kind or amount of cash, securities or other property receivable
by Holders of the Securities upon the conversion of their Securities after any
such reclassification, change, consolidation, merger, share exchange, sale or
conveyance, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with.


 


Section 10.12.  Trustee’s
Disclaimer.  The Trustee has
no duty to determine when an adjustment under this Article 10 should be
made, how it should be made or what such adjustment should be made, but may
accept as conclusive evidence of the correctness of any such adjustment, and
shall be fully protected in relying upon, the Officers’ Certificate with
respect thereto which the Company is obligated to file with the Trustee
pursuant to Section 10.09.  The
Trustee shall not be accountable for and makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities, and the Trustee shall not be responsible for the Company’s failure
to comply with any provisions of this Article 10.  Each Conversion Agent (other than the Company
or an Affiliate of the Company) shall have the same protection under this Section 10.12
as the Trustee.


 


The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 10.11, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying upon, the Officers’
Certificate with respect thereto which the Company is obligated to file with
the Trustee pursuant to Section 10.11.


 


Section 10.13.  Voluntary Reduction.  The Company from time to time may
reduce the Conversion Price by any amount for any period of time if such period
is at least 20 Trading Days or such longer period as may be required by law and
if the reduction is irrevocable during such period; if the Board of Directors
determines, in good faith, that such decrease would be in the best interests of
the Company; provided that in no
event may the Conversion Price be less than the par value of a share of Common
Stock. Any such determination by the Board of Directors shall be conclusive.


 


Section 10.14.  Conversion Value of Securities Tendered.


 


(a)           Holders tendering the
Securities for conversion shall be entitled to receive, upon conversion of such
Securities, cash and shares of Common Stock, the value of which (the “Conversion Value”) shall be equal to the
product of:


 


71





















 


(i)    (A) the aggregate principal amount of
Securities to be converted divided by 1,000 multiplied by (B) the then applicable Conversion
Rate; and


 


(ii)   the
average of the Common Stock Prices for the ten consecutive Trading Days
(appropriately adjusted to take into account the occurrence during such period
of stock splits, stock dividends and similar events) beginning on the second
Trading Day immediately following the day the Securities are tendered for
conversion (the “Ten Day Average Closing
Stock Price”).


 


(b)           Subject to certain
exceptions described below and under Sections 10.01(b) and 10.01(a)(iii), the
Company shall deliver the Conversion Value to converting holders as follows:


 


(i)    an
amount in cash (the “Principal Return”)
equal to the lesser of (a) the Conversion Value of the Securities to be
converted and (b) the aggregate principal amount of the Securities to be
converted;


 


(ii)   if
the Conversion Value of the Securities to be converted is greater than the
Principal Return, an amount in whole shares (the “Net Shares”), determined as set forth below, equal to such
aggregate Conversion Value less the Principal Return (the “Net Share Amount”); and


 


(iii)  an
amount paid in cash, determined as set forth below, in lieu of any fractional
shares of Common Stock.


 


The number of Net Shares to be paid shall be determined by dividing the
Net Share Amount by the Ten Day Average Closing Stock Price, and rounding down
to the nearest whole share.  Holders of
Securities will not receive fractional shares upon conversion of
Securities.  In lieu of fractional
shares, Holders will receive cash for the value of the fractional shares, which
cash payment shall be based on the Ten Day Average Closing Stock Price.


 


The Conversion Value, Principal Return, number of Net Shares, Net Share
Amount and the cash payment for fractional shares shall be determined by the
Company at the end of the ten consecutive Trading Day period beginning on the
second Trading Day immediately following the day the Securities are tendered
for conversion (the “Determination Date”).


 


(c)           The Company shall pay
the Principal Return and cash for fractional shares and deliver the Net Shares,
if any, as promptly as practicable after the Conversion Date, but in no event
later than four Business Days thereafter. 
Except as provided in Section 10.02(c), delivery of the Principal
Return, Net Shares and


 


72





















 


cash in lieu
of fractional shares shall be deemed to satisfy the Company’s obligation to pay
the principal amount of a converted Security and accrued but unpaid interest
(including Contingent Interest and Liquidated Damages, if any) thereon.  Any accrued interest (including Contingent
Interest and Liquidated Damages, if any) payable on a converted Security shall
be deemed paid in full rather than canceled, extinguished or forfeited.


 


(d)           Neither the Trustee nor
the Conversion Agent has any duty to determine or calculate the Conversion
Value, Principal Return, number of Net Shares, the Net Share Amount or any
other computation required under this Article 10, all of which shall be
determined by the Company (or the Trustee, as the case may be) in accordance
with the provisions of this Indenture, and the Trustee and Conversion Agent
shall not be under any responsibility to determine the correctness of any such
determinations and/or calculations and may conclusively rely on the correctness
thereof.


 


Section 10.15.  Simultaneous Adjustments.  In the event that this Article 10
requires adjustments to the Conversion Price under more than one of Sections
10.05(a) and (c), and the record dates for the distributions giving rise to
such adjustments shall occur on the same date, then such adjustments shall be
made by applying, first, the provisions of Section 10.05(c), as
applicable, and, second, the provisions of Section 10.05(a).  If more than one event requiring adjustment
pursuant to Section 10.05 shall occur before completing the determination
of the Conversion Price for the first event requiring such adjustment, then the
Board of Directors (whose determination shall, if made in good faith, be
conclusive) shall make such adjustments to the Conversion Price (and the
calculation thereof) after giving effect to all such events as shall preserve
for Holders the Conversion Price protection provided in Section 10.05.


 


ARTICLE 11


MISCELLANEOUS


 


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


 


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


 


73





















 


if to the Company, to:


 


American Equity Investment Life Holding Company

5000 Westown Parkway, Suite 440 

West Des Moines, Iowa 50266


 


if to the Trustee, to:


 


U.S. Bank National Association


60 Livingston Avenue


EP-MN-WS3C


St. Paul, MN 55107-2292


 


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


 


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


 


Failure to mail a notice or communication to a 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 received by the
addressee.


 


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


 


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


 


Section 11.04.  Certificate and Opinion as to Conditions Precedent.  Upon any request or application by the
Company to the Trustee to take or refrain from taking any action under this
Indenture, the Company shall furnish to the Trustee:


 


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


 


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


 


In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such eligible and qualified Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.


 


Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous.  Any such certificate
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Company stating the information on which counsel is relying unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.


 


Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 11.08.  Legal Holidays.  A “Legal
Holiday” is any day other than a Business Day.  If any specified date (including a date for
giving notice) is a Legal Holiday, the action shall be taken on the next
succeeding day that is not a Legal Holiday, and, if the action to be taken on
such date is a payment in respect of the Securities, no interest (including
Contingent Interest and Liquidated Damages, if any), shall accrue for the
intervening period.


 


Section 11.09.  Governing Law.  THIS INDENTURE AND EACH SECURITY SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND
FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.


 


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


 


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


 


Section 11.12.  Multiple Originals.  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 11.13.  Table of Contents and Headings. The
Table of Contents and the headings of the Articles or Sections of this Indenture
have been inserted for convenience of reference only, are not to be considered
as part of this


 


76





















 


Indenture and
shall in no way modify or restrict any of the terms or provisions hereof.


 


Section 11.14.  Tax Treatment of The Securities.  The Company agrees, and by acceptance
of a beneficial interest in a Security each Holder and any Beneficial Owner of
a Security shall be deemed to agree, to treat, for United States federal income
tax purposes, the Securities as debt instruments that are subject to Treasury
regulation section 1.1275-4 or any successor provision (the “contingent
payment regulations”). For United States federal income tax purposes, the
Company further agrees, and by acceptance of a beneficial interest in a
Security each Holder and any Beneficial Owner of a Security shall be deemed to
agree (i) to treat the cash and the fair market value of any Common Stock
received upon the conversion of a Security as a contingent payment for purposes
of the contingent payment regulations, (ii) to accrue interest with respect to
outstanding Securities as original issue discount for United States federal
income tax purposes (i.e. Tax
Original Issue Discount) according to the “noncontingent bond method” set forth
in the contingent payment regulations, using the comparable yield of 8%
compounded semi-annually, and (iii) to be bound by the Company’s determination
of the “projected payment schedule,” within the meaning of the contingent
payment regulations, with respect to the Securities. Holders or Beneficial
Owners may obtain the issue price, amount of Tax Original Issue Discount ,
issue date, comparable yield and projected payment schedule, by submitting a
written request for it to the Company at the following address: 5000 Westown
Parkway #440, West Des Moines, IA 50266.


 


The Company acknowledges and agrees, and by acceptance of a beneficial
interest in a Security each Holder and any Beneficial Owner of a Security shall
be deemed to acknowledge and agree, that (i) the comparable yield means the
annual yield the Company would pay, as of the issue date, on a noncontingent,
nonconvertible, fixed-rate debt instrument with terms and conditions otherwise
similar to those of the Securities and (ii) the comparable yield and the
projected payment schedule that a Holder or Beneficial Owner may obtain as
described above do not constitute a representation by the Company regarding the
actual amounts that will be paid on the Securities or the value of the Common
Stock into which the Securities may be converted.


 


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


 


	
   

  	
  AMERICAN EQUITY INVESTMENT 

  LIFE HOLDING COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Wendy L Carlson

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Wendy L.
  Carlson

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Richard Prokosch

  	
   

  
	
   

  	
  Name:

  	
  Richard Prokosch

  
	
   

  	
  Title:

  	
  Vice
  President

  
						



 


78





















EXHIBIT A


 


[FORM OF FACE
OF GLOBAL SECURITY]


 


[Transfer Restricted Securities Legend –
Include only on Transfer Restricted Securities]


 


[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE ‘‘SECURITIES ACT’’), OR ANY STATE OR OTHER SECURITIES
LAWS.  NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT IT IS A ‘‘QUALIFIED
INSTITUTIONAL BUYER’’ (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (‘‘RULE
144A’’)) AND IS PURCHASING IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (2) AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO
THE DATE WHICH IS THE LATER OF (X) TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS
PERMITTED BY RULE 144(k) OF THE SECURITIES ACT) AFTER THE LATER OF THE LAST
DATE OF ORIGINAL ISSUANCE OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
SECURITY) AND THE LAST DATE ON WHICH AMERICAN EQUITY INVESTMENT LIFE HOLDING
COMPANY OR ANY AFFILIATE OF AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE ‘‘RESALE
RESTRICTION TERMINATION DATE’’) EXCEPT (A) TO AMERICAN EQUITY INVESTMENT LIFE
HOLDING COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER, (C) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR (D) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES
IS A ‘‘QUALIFIED INSTITUTIONAL BUYER’’ AS DEFINED IN RULE 144A THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE


 


A-1





















 


EFFECT OF THIS LEGEND; AND, IN EACH OF THE FOREGOING CASES, TO REQUIRE
THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO AMERICAN EQUITY
INVESTMENT LIFE HOLDING COMPANY AND THE TRUSTEE (WITH RESPECT TO TRANSFERS OF
SECURITIES) OR THE TRANSFER AGENT (WITH RESPECT TO TRANSFERS OF COMMON STOCK).
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.]


 


[FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE “CODE”), THIS SECURITY IS BEING ISSUED WITH TAX
ORIGINAL ISSUE DISCOUNT. THE ISSUE PRICE OF THIS SECURITY IS $1,000 PER $1,000
OF PRINCIPAL AMOUNT, AND THE ISSUE DATE OF THIS SECURITY IS DECEMBER 6,
2004. IN ADDITION, THIS SECURITY IS SUBJECT TO UNITED STATES FEDERAL INCOME TAX
REGULATIONS GOVERNING CONTINGENT PAYMENT DEBT INSTRUMENTS. FOR PURPOSES OF
SECTIONS 1272, 1273 AND 1275 OF THE CODE, THE COMPARABLE YIELD OF THIS SECURITY
IS 8% COMPOUNDED SEMI-ANNUALLY (WHICH WILL BE TREATED AS THE YIELD TO MATURITY
FOR UNITED STATES FEDERAL INCOME TAX PURPOSES).


 


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


 


AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY AGREES TO PROVIDE
PROMPTLY TO THE HOLDER OF THIS SECURITY, UPON WRITTEN REQUEST, THE ISSUE PRICE,
AMOUNT OF TAX ORIGINAL


 


A-2





















 


ISSUE DISCOUNT, ISSUE DATE, COMPARABLE YIELD AND PROJECTED PAYMENT
SCHEDULE. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO AMERICAN EQUITY INVESTMENT
LIFE HOLDING COMPANY AT THE FOLLOWING ADDRESS: 5000 WESTOWN PARKWAY, SUITE 440,
WEST DES MOINES, IOWA 50266, ATTENTION: WENDY L. CARLSON.]


 


[Global Securities Legend – Include only on
Global Securities]


 


[UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY 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
THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN. 
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.]


 


A-3





















 


AMERICAN
EQUITY INVESTMENT LIFE HOLDING COMPANY.


 


5.25%
Contingent Convertible Senior Note Due 2024


 


	
  No.:

  	
  CUSIP:  [                             ]*

  
	
   

  	
   

  	
   

  
	
  Issue Date:

  	
  Principal Amount:

  	
   

  



 


 


American Equity Investment Life Holding Company, a Delaware corporation, promises to
pay to [Cede & Co.]** or registered assigns, [the principal amount of
$           ] [the principal amount as
set forth on Schedule I hereto]**, on December 6, 2024, subject to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.  This Security is convertible as specified on
the other side of this Security.


 


Interest
Payment Dates:  June 6 and December 6, commencing June 6, 2005.


 


Record
Dates:  May 20 and November 20,
commencing May 20, 2005.


 


 


	
   

  	
  American Equity Investment Life Holding

  Company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 










*                 For Rule 144A
Global Security only


**          Include only on Global
Security


 


A-4





















 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


 


U.S. Bank
National Association, as Trustee, certifies that this is one of the Securities
referred to in the within-mentioned Indenture.


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  



 


 


Dated:


 


A-5





















 


[FORM OF
REVERSE SIDE OF NOTE]


 


AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY


 


5.25%
Contingent Convertible Senior Note Due 2024


 


(1)                                  Interest.


 


This Security
will bear interest from December 6,
2004 or from the most recent date to which interest has been paid or duly
provided for, quarterly in arrears on June 6
and December 6 of each year
(each, an “Interest Payment Date”), subject
to Section 11.08 of the Indenture, commencing June 6, 2005.  The
Company will pay interest on any overdue principal amount at the interest rate
borne by the Securities at the time such interest on the overdue principal
amount accrues, compounded quarterly, and it shall pay interest on overdue
installments of interest and Contingent Interest and Liquidated Damages, if any
(without regard to any applicable grace period), at the same interest rate, compounded
quarterly.  Interest (including
Contingent Interest and Liquidated Damages, if any) on the Securities will be
computed on the basis of a 360-day year comprised of twelve 30-day months.


 


The Company
shall pay additional interest (“Contingent Interest”)
to the Holders during any six-month period (a “Contingent
Interest Period”) from and including an Interest Payment Date to but
excluding the next Interest Payment Date, commencing with the six-month period
ending June 6, 2012, if the average Trading Price per Security for the
five Trading Days ending on the third Trading Day immediately preceding the
first day of the applicable Contingent Interest Period (the “Contingent Interest Average Trading Price”) equals 120% or
more of the principal amount of such Security. 
The amount of Contingent Interest payable per $1,000 principal amount of
Securities in respect of any Contingent Interest Period shall equal 0.50% per
annum on the Contingent Interest Average Trading Price.  The Company will pay Contingent Interest, if
any, in the same manner and at the same time as it will pay interest as
described above.


 


Upon
determination that Holders will be entitled to receive Contingent Interest for
a Contingent Interest Period, on or prior to the first day of such Contingent
Interest Period, the Company shall issue a press release and notify the Trustee
promptly in writing.


 


(2)                                  Method
of Payment.


 


The Company
will pay interest (including Contingent Interest and Liquidated Damages, if
any) on this Security to the Person who is the registered Holder of this
Security at the close of business on May
20 or November 20 (each, a “Record Date”), as the case may be,
immediately preceding the related Interest Payment Date.  Subject to the terms and conditions of the
Indenture, the Company


 


A-6





















 


will make all payments and deliveries in respect of the Redemption
Price, Repurchase Price, Change in Control Repurchase Price and the principal
amount at Stated Maturity, as the case may be, to the Holder who surrenders a
Security to a Paying Agent to collect such payments in respect of the
Security.  The Company will pay cash
amounts in money of the United States that at the time of payment is legal tender
for payment of public and private debts. 
However, the Company may pay interest (including Contingent Interest and
Liquidated Damages, if any), the Redemption Price, Repurchase Price, Change in
Control Repurchase Price and the principal amount at Stated Maturity, as the
case may be, to a Holder holding Securities in definitive form by check or wire
payable in such money; provided that a
Holder holding Securities in definitive form with an aggregate principal amount
in excess of $1,000,000 may request payment by wire transfer in immediately available
funds to an account in North America at the election of such Holder.  The Company may mail an interest check to the
Holder’s registered address. 
Notwithstanding the foregoing, so long as this Security is registered in
the name of a Depositary or its nominee, all payments hereon shall be made by
wire transfer of immediately available funds to the account of the Depositary
or its nominee.


 


(3)                                  Paying
Agent, Conversion Agent and Registrar.


 


Initially,
U.S. Bank National Association (the “Trustee”) will
act as Paying Agent, Conversion Agent and Registrar.  The Company may appoint and change any Paying
Agent, Conversion Agent or Registrar without notice, other than notice to the
Trustee; provided that the Company will maintain
at least one Paying Agent having an office or agency in the State of New York,
City of New York, Borough of Manhattan, which shall initially be an office or
agency of the Trustee.  The Company or
any of its Subsidiaries or any of their Affiliates may act as Paying Agent,
Conversion Agent or Registrar.


 


(4)                                  Indenture.


 


The Company
issued the Securities under an Indenture dated as of December 6, 2004 (the “Indenture”),
between the Company and the Trustee.  The
terms of the Securities include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939, as in effect
from time to time (the “TIA”).  Capitalized terms used herein and not defined
herein have the meanings ascribed thereto in the Indenture.  The Securities are subject to all such terms,
and Holders are referred to the Indenture and the TIA for a statement of those
terms.


 


The Securities
are senior unsecured obligations of the Company and may be issued in unlimited
principal amount under the Indenture. 
The Indenture does not limit other indebtedness of the Company, secured
or unsecured.


 


A-7





















 


(5)                                  Redemption
at the Option of the Company.


 


No sinking
fund is provided for the Securities. 
Beginning on December 15,
2011 and during the periods thereafter to maturity, the Securities are
redeemable as a whole at any time, or in part from time to time, in any
integral multiple of $1,000, at the option of the Company for cash at a
Redemption Price equal to 100% of the principal amount, together with accrued
but unpaid interest (including Contingent Interest and Liquidated Damages, if
any) thereon, up to but not including the Redemption Date; provided that,
if the Redemption Date is between the close of business on a Record Date and
the opening of business on the related Interest Payment Date, interest will be
payable to the Holders in whose names the Securities are registered at the
close of business on the relevant Record Date.


 


Notice of
redemption pursuant to paragraph 5 of this Security will be mailed at least 30
days but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at the Holder’s registered address.  If money sufficient to pay the Redemption
Price of all Securities (or portions thereof) to be redeemed on the Redemption
Date is deposited with the Paying Agent prior to 11:00 a.m., New York City
time, on the Redemption Date, immediately after such Redemption Date, interest
(including Contingent Interest and Liquidated Damages, if any) shall cease to
accrue on such Securities or portions thereof. 
Securities in denominations larger than $1,000 of principal amount may
be redeemed in part but only in integral multiples of $1,000 of principal
amount.


 


(6)                                  Repurchase
By the Company at the Option of the Holder on Specified Dates; Repurchase at
the Option of the Holder Upon a Change in Control.


 


Subject to the
terms and conditions of the Indenture, the Company shall become obligated to
repurchase, at the option of the Holder, on December 15, 2011, December 15,
2014 and December 15, 2019
(each, a “Repurchase Date”), all or a portion of
the Securities held by such Holder, in any integral multiple of $1,000, for
cash at a price per Security equal to 100% of the aggregate principal amount of
the Security (the “Repurchase Price”),
together with accrued but unpaid interest (including Contingent Interest and
Liquidated Damages, if any) thereon, up to but not including the Repurchase
Date upon delivery of a Repurchase Notice containing the information set forth in
the Indenture, together with the Securities subject thereto, at any time from
the opening of business on the date that is 30 Business Days prior to such
Repurchase Date until the close of business on the Business Day prior to such
Repurchase Date, and upon delivery of the Securities to the Paying Agent by the
Holder as set forth in the Indenture.


 


At the option
of the Holder and subject to the terms and conditions of the Indenture, the
Company shall become obligated to repurchase the Securities held by such Holder
after the occurrence of a Change in Control of the Company for a Change in
Control Repurchase Price equal to 100% of the principal amount thereof plus
accrued but unpaid interest (including Contingent Interest and


 


A-8





















 


Liquidated Damages, if any) thereon, up to but not including the Change
in Control Repurchase Date which Change in Control Repurchase Price shall be
paid in cash (provided that if the Change in
Control Repurchase Date is between the close of business on a Record Date and
the opening of business on the related Interest Payment Date, accrued but
unpaid interest will be payable to the Holders in whose names the Securities
are registered at the close of business on the relevant Record Date).  Holders have the right to withdraw any
Repurchase Notice or Change in Control Repurchase Notice, as the case may be,
by delivering to the Paying Agent a written notice of withdrawal in accordance
with the provisions of the Indenture.


 


If cash
sufficient to pay the Repurchase Price or Change in Control Repurchase Price,
as the case may be, and accrued but unpaid interest (including Contingent
Interest and Liquidated Damages, if any) on all Securities or portions thereof
to be repurchased as of the Repurchase Date or the Change in Control Repurchase
Date, as the case may be, is held by the Paying Agent by 11:00 a.m., New York
City time, on the Business Day immediately following the Repurchase Date or the
Change in Control Repurchase Date, interest (including Contingent Interest and
Liquidated Damages, if any) shall cease to accrue on such Securities (or
portions thereof) as of such Repurchase Date or Change in Control Repurchase
Date, and the Holder thereof shall have no other rights as such, other than the
right to receive the Repurchase Price or Change in Control Repurchase Price, as
the case may be, and interest (including Contingent Interest and Liquidated
Damages, if any) upon surrender of such Security.


 


(7)                                  Conversion.


 


Upon
satisfaction of the conditions set forth in Section 10.01(a) of the Indenture,
a Holder of a Security may convert any portion of the principal amount of any
Security that is an integral multiple of $1,000 into cash and fully paid and
non-assessable shares (calculated as to each conversion to the nearest
1/10000th of a share) of Common Stock in accordance with the provisions of Section 10.14
of the Indenture; provided that if such Security is
called for redemption, the conversion right will terminate at the close of
business on the second Business Day immediately preceding the Redemption Date
of such Security (unless the Company shall default in making the redemption
payment when due, in which case the conversion right shall terminate at the
close of business on the date such default is cured and such Security is
redeemed).  Such conversion right shall
commence on the initial issuance date of the Securities and expire at the close
of business on the date of maturity, subject, in the case of conversion of any
Global Security, to any Applicable Procedures. 
The Conversion Price shall, as of the date of the Indenture, initially
be $14.47 per share of Common
Stock.  The Conversion Rate shall, as of
the date of the Indenture, initially be approximately 69.1085.  The Conversion
Price and Conversion Rate will be adjusted under the circumstances specified in
the Indenture.  Upon conversion, no
adjustment for interest (including Contingent Interest and Liquidated Damages,
if any) or dividends will be made.  No


 


A-9





















 


fractional shares will be issued upon conversion; in lieu thereof, an
amount will be paid in cash based upon the Ten Day Average Closing Stock Price
(as defined in the Indenture).  Except as
provided in Section 10.02(c) of the Indenture, delivery of the Principal
Return, Net Shares and cash in lieu of fractional shares shall be deemed to
satisfy the Company’s obligation to pay the principal amount of a converted
Security and accrued but unpaid interest (including Contingent Interest and Liquidated
Damages, if any) thereon.  Any accrued
interest (including Contingent Interest and Liquidated Damages, if any) payable
on a converted Security will be deemed paid in full, rather than canceled,
extinguished or forfeited.


 


In addition,
following certain corporate transactions as set forth in Sections
10.01(a)(iii)(A) and 10.01(a)(iii)(B) that occur on or prior to December 15,
2011 and that constitute a Change in Control (other than relating to the
composition of the Board of Directors as described in clause (d) of the
definition of Change in Control in Section 1.01) and for which 10% or more
of the fair market value of the consideration for the Common Stock (as
determined by the Board of Directors) in the corporate transaction consists of
(i) cash, (ii) other property or (iii) securities that are not traded or
scheduled to be traded immediately following such transaction on a U.S.
national securities exchange or the Nasdaq National Market, a Holder who elects
to convert its Securities in connection with such corporate transaction will be
entitled to receive Additional Shares of Common Stock upon conversion in
certain circumstances.


 


To convert a
Security, a Holder must (a) complete and manually sign the conversion notice
set forth below and deliver such notice to the Conversion Agent, (b) surrender
the Security to the Conversion Agent, (c) furnish appropriate endorsements and
transfer documents if required by the Registrar or the Conversion Agent, (d)
pay any transfer or other tax, if required and (e) if the Security is held in
book-entry form, complete and deliver to the Depositary appropriate
instructions pursuant to the Applicable Procedures.  If a Holder surrenders a Security for
conversion between the close of business on the Record Date and the opening of
business on the related Interest Payment Date, the Security must be accompanied
by payment of an amount equal to the interest (including Contingent Interest
and Liquidated Damages, if any) payable on such Interest Payment Date on the
principal amount of the Security or portion thereof then converted; provided that no such payment shall be required if such
Security has been called for redemption on a Redemption Date within the period
between close of business on such Record Date and the opening of business on
such Interest Payment Date, or if such Security is surrendered for conversion
on the Interest Payment Date.  A Holder
may convert a portion of a Security equal to $1,000 or any integral multiple
thereof.


 


A Security in
respect of which a Holder has delivered a Repurchase Notice or a Change of
Control Repurchase Notice exercising the option of such Holder to require the
Company to repurchase such Security as provided in Section 3.08 or Section 3.09


 


A-10





















 


respectively, of the Indenture may be converted only if such notice of
exercise is withdrawn in accordance with the terms of the Indenture.


 


(8)                                  Denominations;
Transfer; Exchange.


 


The Securities
are in fully registered form, without coupons, in denominations of $1,000 of
principal amount and integral multiples of $1,000.  A Holder may transfer or exchange Securities
in accordance with the Indenture.  The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.  The
Registrar need not transfer or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed), or any Securities in respect of which a
Repurchase Notice or a Change in Control Repurchase Notice has been given and
not withdrawn (except, in the case of a Security to be repurchased in part, the
portion of the Security not to be repurchased), or any Securities for a period
of 15 days before the mailing of a notice of redemption of Securities to be
redeemed.


 


(9)                                  Persons
Deemed Owners.


 


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


 


(10)                            Amendment;
Waiver.


 


Subject to
certain exceptions set forth in the Indenture, (i) the Indenture or the
Securities may be amended with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities at the time
outstanding and (ii) certain defaults may be waived with the written consent of
the Holders of a majority in aggregate principal amount of the Securities at
the time outstanding.  Subject to certain
exceptions set forth in the Indenture, without the consent of any Holder, the
Company and the Trustee may amend the Indenture or the Securities (i) to cure
any ambiguity, omission, defect or inconsistency, or make any other change that
does not adversely affect the rights of any Holder in any material respect,
(ii) to comply with Article 5 or Section 10.11 of the Indenture, (iii) to make
provisions with respect to the conversion right of Holders pursuant to the
requirements of Section 10.01 of the Indenture, (iv) to evidence and provide
for the acceptance of appointment under the Indenture by a successor Trustee,
or (v) to comply with the provisions of the TIA or any requirement of the SEC
in connection with the qualification of the Indenture under the TIA.


 


(11)                            Defaults
and Remedies.


 


Except as set
forth in the Indenture, if an Event of Default occurs and is continuing, the
Trustee or the Holders of not less than 25% in principal amount of


 


A-11





















 


Securities then outstanding may declare all the Securities to be due
and payable in the manner, at the time and with the effect provided in the
Indenture.  Holders of Securities may not
enforce the Indenture or the Securities except as provided in the Indenture.  The Trustee is not obligated to enforce the
Indenture or the Securities unless it has received security or indemnity
reasonably satisfactory to it.  The
Indenture permits, subject to certain limitations therein provided, Holders of
a majority in aggregate principal amount of the Securities at the time outstanding
to direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders of
Securities notice of any continuing Default or Event of Default (except a
default in payment of principal or interest when due, for any reason) if it
determines in good faith that withholding notice is in the interests of
Holders.


 


(12)                            Trustee
Dealings with the Company.


 


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


 


(13)                            No
Recourse Against Others.


 


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


 


(14)                            Ranking.


 


The Securities
shall be unsecured senior obligations of the Company and shall rank equally in
right of payment with any other existing and future senior indebtedness of the
Company and senior to any future subordinated indebtedness of the Company.


 


(15)                            Authentication.


 


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


 


(16)                            Abbreviations.


 


Customary
abbreviations may be used in the name of a Holder or an assignee, such as TEN
COM (“Tenants In Common”), TEN ENT (“Tenants
By


 


A-12





















 


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”).


 


(17)                            Governing
Law.


 


THE LAWS OF
THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS SECURITY.


 


(18)                            CUSIP
Numbers.


 


Pursuant to a
recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the
Securities as a convenience to the Holders of the Securities.  No representation is made as to the accuracy
of such numbers as printed on the Securities and reliance may be placed only on
the other identification numbers printed hereon.


 


A-13





















 


	
  ASSIGNMENT
  FORM

  	
   

  	
  CONVERSION
  NOTICE

  
	
   

  	
   

  	
   

  
	
  To assign this Security, fill in the form
  below:

  	
   

  	
  To convert this Security into Cash and
  Common Stock of the Company, check the box o

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  I or we
  assign and transfer this Security to 

  	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

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

  	
   

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

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

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

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

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

  	
   

  	
   

  
	
   

  
	
   

  
	
   

  	
   

  	
   

  
	
  Date: 

  	
   

  	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

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

  
							



 


 


	
  Signature Guaranteed

  
	
   

  	
   

  
	
  Participant in a Recognized Signature

  Guarantee Medallion Program

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  



 


A-14





















 


FORM OF
REPURCHASE NOTICE


 


To:                              American
Equity Investment Life Holding Company


 


The
undersigned registered holder of this Security requests and instructs the
Company to repurchase this Security, or the portion hereof (which is $1,000
principal amount or a multiple thereof) designated below, on the date specified
below, in accordance with the terms and conditions specified in paragraph 6 of
this Security and the Indenture referred to in this Security and directs that
the check in payment for this Security or the portion thereof and any
Securities representing the portion of principal amount hereof not to be so
repurchased, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. 
If any portion of this Security not repurchased is to be issued in the
name of a Person other than the undersigned, the undersigned shall pay all
transfer taxes payable with respect thereto.


 


Dated:  


 


 


	
   

  	
   

  
	
   

  	
  Signature(s)

  



 


Fill in for registration of Securities not

repurchased if to be issued other than

to and in the name of registered holder:


 


 


	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Street Address)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (City, state and zip code)

  	
   

  



 


 


Please print
name and address


 


principal
amount to be repurchased (if less than all): 
$   ,000


 


date of
requested repurchase:  •,
20    

(specify either •, 2011, 2014 or 2019)


 


A-15





















 


FORM OF OPTION
TO ELECT REPURCHASE 

UPON A CHANGE IN CONTROL


 


To:  American Equity Investment Life Holding
Company


 


The
undersigned registered holder of this Security hereby acknowledges receipt of a
notice from American Equity Investment Life Holding Company (the “Company”) as
to the occurrence of a Change in Control with respect to the Company and
requests and instructs the Company to repurchase this Security, or the portion
hereof (which is $1,000 principal amount or a multiple thereof) designated
below, in accordance with the terms of the Indenture referred to in this
Security and directs that the check in payment for this Security or the portion
thereof and any Securities representing any unrepurchased principal amount
hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If any portion of this Security not
repurchased is to be issued in the name of a Person other than the undersigned,
the undersigned shall pay all transfer taxes payable with respect thereto.


 


Dated:  


 


 


	
   

  	
   

  
	
   

  	
  Signature(s)

  



 


Fill in for registration of Securities not

repurchased if to be issued other than

to and in the name of registered holder:


 


 


	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Street Address)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (City, state and zip code)

  	
   

  



 


 


Please print name and address


 


principal amount to be repurchased (if less than all):  $   ,000


 


A-16





















 


SCHEDULE I*


 


AMERICAN
EQUITY INVESTMENT LIFE HOLDING COMPANY

5.25% Contingent Convertible Senior Notes Due 2024


 


No:


 


	
  Date

  	
   

  	
  Principal Amount

  	
   

  	
  Notation

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 










* Include only on Global Security


 


A-17





















 


EXHIBIT B


 


Transfer
Certificate


 


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


 


o                                    The transfer of the
Surrendered Securities complies with Rule 144A under the U.S.  Securities Act of 1933, as amended (the “Securities Act”); or


 


o                                    The transfer of the
Surrendered Securities is pursuant to an exemption from the registration
requirement of the Securities Act
provided by Rule 144 thereunder; or


 


o                                    The transfer of the
Surrendered Securities is pursuant to an effective registration statement under
the Securities Act; or


 


o                                    A transfer of the
Surrendered Securities is made to the Company or any of its subsidiaries.


 


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


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  	
   

  
	
   

  	
   

  	
   

  
	
   

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

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature(s)e Guaranteed

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Participant in a Recognized Signature

  Guarantee Medallion Program

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  	
   

  	
   

  
								



 


B-1





















 


SCHEDULE A


 


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


 


 


	
   

  	
   

  	
  Stock
  Price

  	
   

  
	
  Effective Date

  	
   

  	
  $ 9.81

  	
   

  	
  $ 10.00

  	
   

  	
  $ 12.00

  	
   

  	
  $ 14.00

  	
   

  	
  $ 16.00

  	
   

  	
  $ 18.00

  	
   

  	
  $ 20.00

  	
   

  	
  $ 25.00

  	
   

  	
  $ 30.00

  	
   

  	
  $ 35.00

  	
   

  	
  $ 40.00

  	
   

  	
  $ 50.00

  	
   

  	
  $ 60.00

  	
   

  
	
  December 6, 2004

  	
   

  	
  32.8

  	
   

  	
  31.9

  	
   

  	
  24.2

  	
   

  	
  19.7

  	
   

  	
  16.7

  	
   

  	
  14.6

  	
   

  	
  12.9

  	
   

  	
  10.0

  	
   

  	
  8.2

  	
   

  	
  6.8

  	
   

  	
  5.8

  	
   

  	
  4.4

  	
   

  	
  3.4

  	
   

  
	
  December 15, 2005

  	
   

  	
  31.9

  	
   

  	
  30.7

  	
   

  	
  22.5

  	
   

  	
  17.9

  	
   

  	
  15.0

  	
   

  	
  13.1

  	
   

  	
  11.6

  	
   

  	
  9.0

  	
   

  	
  7.3

  	
   

  	
  6.1

  	
   

  	
  5.2

  	
   

  	
  3.9

  	
   

  	
  3.1

  	
   

  
	
  December 15, 2006

  	
   

  	
  30.8

  	
   

  	
  29.6

  	
   

  	
  20.6

  	
   

  	
  15.9

  	
   

  	
  13.2

  	
   

  	
  11.4

  	
   

  	
  10.0

  	
   

  	
  7.8

  	
   

  	
  6.3

  	
   

  	
  5.3

  	
   

  	
  4.5

  	
   

  	
  3.4

  	
   

  	
  2.7

  	
   

  
	
  December 15, 2007

  	
   

  	
  30.4

  	
   

  	
  29.0

  	
   

  	
  18.9

  	
   

  	
  13.9

  	
   

  	
  11.2

  	
   

  	
  9.5

  	
   

  	
  8.4

  	
   

  	
  6.5

  	
   

  	
  5.3

  	
   

  	
  4.4

  	
   

  	
  3.8

  	
   

  	
  2.9

  	
   

  	
  2.3

  	
   

  
	
  December 15, 2008

  	
   

  	
  30.3

  	
   

  	
  28.7

  	
   

  	
  17.2

  	
   

  	
  11.6

  	
   

  	
  8.9

  	
   

  	
  7.5

  	
   

  	
  6.5

  	
   

  	
  5.1

  	
   

  	
  4.1

  	
   

  	
  3.5

  	
   

  	
  3.0

  	
   

  	
  2.3

  	
   

  	
  1.8

  	
   

  
	
  December 15, 2009

  	
   

  	
  30.9

  	
   

  	
  29.1

  	
   

  	
  15.6

  	
   

  	
  9.1

  	
   

  	
  6.4

  	
   

  	
  5.2

  	
   

  	
  4.5

  	
   

  	
  3.5

  	
   

  	
  2.9

  	
   

  	
  2.4

  	
   

  	
  2.1

  	
   

  	
  1.6

  	
   

  	
  1.2

  	
   

  
	
  December 15, 2010

  	
   

  	
  32.2

  	
   

  	
  30.2

  	
   

  	
  14.5

  	
   

  	
  6.4

  	
   

  	
  3.5

  	
   

  	
  2.7

  	
   

  	
  2.3

  	
   

  	
  1.8

  	
   

  	
  1.5

  	
   

  	
  1.3

  	
   

  	
  1.1

  	
   

  	
  0.8

  	
   

  	
  0.7

  	
   

  
	
  December 15, 2011

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0