Exhibit 4.1


 


	
  EXECUTION COPY

  
	
   

  
	
   

  
	
   

  



 


AMERICAN EQUITY INVESTMENT LIFE HOLDING
COMPANY


 


 


AND


 


 


U.S. BANK NATIONAL ASSOCIATION,


 


 


as Trustee


 


 


INDENTURE


 


 


Dated as of September 22, 2010


 


 


3.50% Convertible Senior Notes due 2015


 


	
   

  



 


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  1

  
	
  DEFINITIONS

  
	
   

  	
   

  	
   

  
	
  Section 1.01.  Definitions

  	
   

  	
  1

  
	
  Section 1.02.  References to Interest

  	
   

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2

  
	
  ISSUE, DESCRIPTION,
  EXECUTION, REGISTRATION AND EXCHANGE OF NOTES

  
	
   

  	
   

  	
   

  
	
  Section 2.01.  Designation and Amount

  	
   

  	
  12

  
	
  Section 2.02.  Form of Notes

  	
   

  	
  12

  
	
  Section 2.03.  Date and Denomination of Notes; Payments of
  Interest and Defaulted Amounts

  	
   

  	
  13

  
	
  Section 2.04.  Execution, Authentication and Delivery of
  Notes

  	
   

  	
  14

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

  	
   

  	
  15

  
	
  Section 2.06.  Mutilated, Destroyed, Lost or Stolen Notes

  	
   

  	
  20

  
	
  Section 2.07.  Temporary Notes

  	
   

  	
  21

  
	
  Section 2.08.  Cancellation of Notes Paid, Converted, Etc

  	
   

  	
  22

  
	
  Section 2.09.  CUSIP Numbers

  	
   

  	
  22

  
	
  Section 2.10.  Additional Notes; Repurchases

  	
   

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3

  
	
  SATISFACTION AND
  DISCHARGE

  
	
   

  	
   

  	
   

  
	
  Section 3.01.  Satisfaction and Discharge

  	
   

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4

  
	
  PARTICULAR COVENANTS OF
  THE COMPANY

  
	
   

  	
   

  	
   

  
	
  Section 4.01.  Payment of Principal and Interest

  	
   

  	
  23

  
	
  Section 4.02.  Maintenance of Office or Agency

  	
   

  	
  23

  
	
  Section 4.03.  Appointments to Fill Vacancies in Trustee’s
  Office

  	
   

  	
  24

  
	
  Section 4.04.  Provisions as to Paying Agent

  	
   

  	
  24

  
	
  Section 4.05.  Existence

  	
   

  	
  25

  
	
  Section 4.06.  Rule 144A Information Requirement and
  Annual Reports

  	
   

  	
  25

  
	
  Section 4.07.  Stay, Extension and Usury Laws

  	
   

  	
  27

  
	
  Section 4.08.  Compliance Certificate; Statements as to
  Defaults

  	
   

  	
  27

  
	
  Section 4.09.  Further Instruments and Acts

  	
   

  	
  27

  



 


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  ARTICLE
  5

  
	
  LISTS OF HOLDERS AND
  REPORTS BY THE COMPANY AND THE TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 5.01.  Lists of Holders

  	
   

  	
  28

  
	
  Section 5.02.  Preservation and Disclosure of Lists

  	
   

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 6.01.  Events of Default

  	
   

  	
  28

  
	
  Section 6.02.  Acceleration; Rescission
  and Annulment

  	
   

  	
  29

  
	
  Section 6.03.  Additional Interest

  	
   

  	
  30

  
	
  Section 6.04.  Payments of Notes on Default; Suit Therefor

  	
   

  	
  31

  
	
  Section 6.05.  Application of Monies Collected by Trustee

  	
   

  	
  33

  
	
  Section 6.06.  Proceedings by Holders

  	
   

  	
  33

  
	
  Section 6.07.  Proceedings by Trustee

  	
   

  	
  34

  
	
  Section 6.08.  Remedies Cumulative and Continuing

  	
   

  	
  34

  
	
  Section 6.09.  Direction of Proceedings and Waiver of
  Defaults by Majority of Holders

  	
   

  	
  35

  
	
  Section 6.10.  Notice of Defaults

  	
   

  	
  35

  
	
  Section 6.11.  Undertaking to Pay Costs

  	
   

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7

  
	
  CONCERNING THE TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 7.01.  Duties and Responsibilities of Trustee

  	
   

  	
  36

  
	
  Section 7.02.  Reliance on Documents, Opinions, Rights of
  the Trustee

  	
   

  	
  38

  
	
  Section 7.03.  No Responsibility for Recitals, Etc

  	
   

  	
  39

  
	
  Section 7.04.  Trustee, Paying Agents, Conversion Agents,
  Bid Solicitation Agent or Note Registrar May Own Notes

  	
   

  	
  39

  
	
  Section 7.05.  Monies and Shares of Common Stock to Be
  Held in Trust

  	
   

  	
  39

  
	
  Section 7.06.  Compensation and Expenses of Trustee

  	
   

  	
  39

  
	
  Section 7.07.  Officers’ Certificate as Evidence

  	
   

  	
  40

  
	
  Section 7.08.  Eligibility of Trustee

  	
   

  	
  40

  
	
  Section 7.09.  Conflicting Interests of the Trustee

  	
   

  	
  41

  
	
  Section 7.10.  Resignation or Removal of Trustee

  	
   

  	
  41

  
	
  Section 7.11.  Acceptance by Successor Trustee

  	
   

  	
  42

  
	
  Section 7.12.  Succession by Merger, Etc

  	
   

  	
  42

  
	
  Section 7.13.  Trustee’s Application for Instructions from
  the Company

  	
   

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8

  
	
  CONCERNING THE HOLDERS

  
	
   

  	
   

  	
   

  
	
  Section 8.01.  Action by Holders

  	
   

  	
  43

  
	
  Section 8.02.  Proof of Execution by Holders

  	
   

  	
  44

  
	
  Section 8.03.  Who Are Deemed Absolute Owners

  	
   

  	
  44

  
	
  Section 8.04.  Company-Owned Notes Disregarded

  	
   

  	
  44

  
	
  Section 8.05.  Revocation of Consents; Future Holders
  Bound

  	
   

  	
  44

  



 


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  ARTICLE
  9

  
	
  HOLDERS’ MEETINGS

  
	
   

  	
   

  	
   

  
	
  Section 9.01.  Purpose of Meetings

  	
   

  	
  45

  
	
  Section 9.02.  Call of Meetings by Trustee

  	
   

  	
  45

  
	
  Section 9.03.  Call of Meetings by Company or Holders

  	
   

  	
  46

  
	
  Section 9.04.  Qualifications for Voting

  	
   

  	
  46

  
	
  Section 9.05.  Regulations

  	
   

  	
  46

  
	
  Section 9.06.  Voting

  	
   

  	
  46

  
	
  Section 9.07.  No Delay of Rights by Meeting

  	
   

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10

  
	
  SUPPLEMENTAL INDENTURES

  
	
   

  	
   

  	
   

  
	
  Section 10.01.  Supplemental Indentures
  Without Consent of Holders

  	
   

  	
  47

  
	
  Section 10.02.  Supplemental Indentures with
  Consent of Holders

  	
   

  	
  48

  
	
  Section 10.03.  Effect of Supplemental
  Indentures

  	
   

  	
  49

  
	
  Section 10.04.  Notation on Notes

  	
   

  	
  49

  
	
  Section 10.05.  Evidence of Compliance of
  Supplemental Indenture to Be Furnished Trustee

  	
   

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  11

  
	
  CONSOLIDATION, MERGER,
  SALE, CONVEYANCE AND LEASE

  
	
   

  	
   

  	
   

  
	
  Section 11.01.  Company May Consolidate,
  Etc. on Certain Terms

  	
   

  	
  49

  
	
  Section 11.02.  Successor Corporation to Be
  Substituted

  	
   

  	
  50

  
	
  Section 11.03.  Opinion of Counsel to Be
  Given to Trustee

  	
   

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  12

  
	
  IMMUNITY OF
  INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  
	
   

  	
   

  	
   

  
	
  Section 12.01.  Indenture and Notes Solely
  Corporate Obligations

  	
   

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  13

  
	
  [INTENTIONALLY OMITTED]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  14

  
	
  CONVERSION OF NOTES

  
	
   

  	
   

  	
   

  
	
  Section 14.01.  Conversion Privilege

  	
   

  	
  51

  
	
  Section 14.02.  Conversion Procedure;
  Settlement Upon Conversion

  	
   

  	
  54

  
	
  Section
  14.03. 
  Increased Conversion Rate Applicable to Certain Notes Surrendered in
  Connection with Make-Whole Fundamental Changes

  	
   

  	
  59

  
	
  Section 14.04.  Adjustment of Conversion
  Rate

  	
   

  	
  61

  
	
  Section 14.05.  Adjustments of Prices

  	
   

  	
  70

  
	
  Section 14.06.  Shares to Be Fully Paid

  	
   

  	
  70

  
	
  Section 14.07.  Effect of Recapitalizations,
  Reclassifications and Changes of the Common Stock

  	
   

  	
  70

  



 


iii

















 


	
  Section 14.08.  Certain Covenants

  	
   

  	
  72

  
	
  Section 14.09.  Responsibility of Trustee

  	
   

  	
  73

  
	
  Section 14.10.  Notice to Holders Prior to
  Certain Actions

  	
   

  	
  73

  
	
  Section 14.11.  Stockholder Rights Plans

  	
   

  	
  74

  
	
  Section 14.12.  Limit on Issuance of Shares
  of Common Stock Upon Conversion

  	
   

  	
  74

  
	
  Section 14.13.  Exchange in Lieu of
  Conversion

  	
   

  	
  74

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  15

  
	
  REPURCHASE OF NOTES AT
  OPTION OF HOLDERS

  
	
   

  	
   

  	
   

  
	
  Section 15.01.  Intentionally Omitted

  	
   

  	
  76

  
	
  Section 15.02.  Repurchase  at Option of Holders Upon a Fundamental Change

  	
   

  	
  76

  
	
  Section 15.03.  Withdrawal of Fundamental
  Change Repurchase Notice

  	
   

  	
  78

  
	
  Section 15.04.  Deposit of Fundamental
  Change Repurchase Price

  	
   

  	
  78

  
	
  Section 15.05.  Covenant to Comply with
  Applicable Laws Upon Repurchase of Notes

  	
   

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  16

  
	
  NO REDEMPTION

  
	
   

  	
   

  	
   

  
	
  Section 16.01.  No Redemption

  	
   

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  17

  
	
  MISCELLANEOUS PROVISIONS

  
	
   

  	
   

  	
   

  
	
  Section 17.01.  Provisions Binding on Company’s
  Successors

  	
   

  	
  80

  
	
  Section 17.02.  Official Acts by Successor
  Corporation

  	
   

  	
  80

  
	
  Section 17.03.  Addresses for Notices, Etc

  	
   

  	
  80

  
	
  Section 17.04.  Governing Law

  	
   

  	
  80

  
	
  Section 17.05.  Evidence of Compliance with
  Conditions Precedent; Certificates and Opinions of Counsel to Trustee

  	
   

  	
  81

  
	
  Section 17.06.  Legal Holidays

  	
   

  	
  81

  
	
  Section 17.07.  No Security Interest Created

  	
   

  	
  81

  
	
  Section 17.08.  Benefits of Indenture

  	
   

  	
  81

  
	
  Section 17.09.  Table of Contents, Headings,
  Etc

  	
   

  	
  81

  
	
  Section 17.10.  Authenticating Agent

  	
   

  	
  81

  
	
  Section 17.11.  Execution in Counterparts

  	
   

  	
  83

  
	
  Section 17.12.  Severability

  	
   

  	
  83

  
	
  Section 17.13.  Waiver of Jury Trial

  	
   

  	
  83

  
	
  Section 17.14.  Force Majeure

  	
   

  	
  83

  
	
  Section 17.15.  Calculations

  	
   

  	
  83

  
	
   

  	
   

  	
   

  
	
  EXHIBIT

  
	
   

  	
   

  	
   

  
	
  Exhibit A         
  Form of Note

  	
   

  	
  A-1

  



 


iv






 












 


INDENTURE dated as of September 22, 2010
between AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY, an Iowa corporation,
as issuer (the “Company”, as more fully set forth
in Section 1.01) and U.S. BANK NATIONAL ASSOCIATION, as trustee (the “Trustee”, as more fully set forth in Section 1.01).


 


W I T N E S S E T H:


 


WHEREAS, for its lawful corporate purposes, the
Company has duly authorized the issuance of its 3.50% Convertible Senior Notes
due 2015 (the “Notes”), initially in an aggregate
principal amount not to exceed $200,000,000, and in order to provide the terms
and conditions upon which the Notes are to be authenticated, issued and
delivered, the Company has duly authorized the execution and delivery of this
Indenture; and


 


WHEREAS, the Form of Note, the certificate of
authentication to be borne by each Note, the Form of Notice of Conversion,
the Form of Fundamental Change Repurchase Notice and the Form of
Assignment and Transfer to be borne by the Notes are to be substantially in the
forms hereinafter provided; and


 


WHEREAS, all acts and things necessary to make the
Notes, when executed by the Company and authenticated and delivered by the
Trustee or a duly authorized authenticating agent, as in this Indenture
provided, the valid, binding and legal obligations of the Company, and this
Indenture a valid agreement according to its terms, have been done and
performed, and the execution of this Indenture and the issue hereunder of the
Notes have in all respects been duly authorized.


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


That in order to declare the terms and conditions
upon which the Notes are, and are to be, authenticated, issued and delivered,
and in consideration of the premises and of the purchase and acceptance of the
Notes by the Holders thereof, the Company covenants and agrees with the Trustee
for the equal and proportionate benefit of the respective Holders from time to
time of the Notes (except as otherwise provided below), as follows:


 


ARTICLE 1

DEFINITIONS


 


Section 1.01.  Definitions.  The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01.  The words “herein,” “hereof,” “hereunder,”
and words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.  The terms defined in this Article include
the plural as well as the singular.


 

















 


“Additional Interest”
means all amounts, if any, payable pursuant to Section 4.06(d), Section 4.06(e) and
Section 6.03, as applicable.


 


“Additional Shares”
shall have the meaning specified in Section 14.03(a).


 


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


 


“Bid Solicitation Agent”
means the Person appointed by the Company to solicit bids for the Trading Price
of the Notes in accordance with Section 14.01(b)(i)(A).  The Trustee shall initially act as the Bid
Solicitation Agent.


 


“Board of Directors”
means the board of directors of the Company or a committee of such board duly
authorized to act for it hereunder.


 


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


 


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


 


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


 


“Cash Settlement”
shall have the meaning specified in Section 14.02(a).


 


“Clause A Distribution”
shall have the meaning specified in Section 14.04(c).


 


“Clause B Distribution”
shall have the meaning specified in Section 14.04(c).


 


“Clause C Distribution”
shall have the meaning specified in Section 14.04(c).


 


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


 


“Combination Settlement”
shall have the meaning specified in Section 14.02(a).


 


“Commission”
means the U.S. Securities and Exchange Commission.


 


“Common Equity”
of any Person means Capital Stock of such Person that is generally entitled (a) to
vote in the election of directors of such Person or (b) if such Person is
not a 


 


2

















 


corporation, to vote or otherwise participate in
the selection of the governing body, partners, managers or others that will
control the management or policies of such Person.


 


“Common Stock”
means the common stock of the Company, par value $1.00 per share, at the date
of this Indenture, subject to Section 14.07.


 


“Company” shall
have the meaning specified in the first paragraph of this Indenture, and
subject to the provisions of Article 11, shall include its successors and
assigns.


 


“Company Order”
means a written order of the Company, signed by (a) the Company’s Chief
Executive Officer, President, Executive or Senior Vice President or any Vice
President (whether or not designated by a number or numbers or word or words
added before or after the title “Vice President”) and (b) any such other
Officer designated in clause (a) of this definition or the Company’s
Treasurer or Assistant Treasurer or Secretary or any Assistant Secretary, and
delivered to the Trustee.


 


“Conversion Agent”
shall have the meaning specified in Section 4.02.


 


“Conversion Date”
shall have the meaning specified in Section 14.02(c).


 


“Conversion Obligation”
shall have the meaning specified in Section 14.01(a).


 


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


 


“Conversion Rate”
shall have the meaning specified in Section 14.01(a).


 


“Corporate Trust Office”
means the principal office of the Trustee at which at any time its corporate
trust business shall be administered, which office at the date hereof is
located at 60 Livingston Avenue EP-MN-WS3C, St. Paul, MN 55107-2292, Attention:
Corporate Trust Services, American Equity Investment Life Holding Company
Administrator, 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 such successor
Trustee may designate from time to time by notice to the Holders and the Company).


 


“Custodian”
means the Trustee, as custodian for The Depository Trust Company, with respect
to the Global Notes, or any successor entity thereto.


 


“Daily Conversion Value”
means, for each of the 40 consecutive Trading Days during the Observation Period,
2.5% of the product of (a) the Conversion Rate
on such Trading Day and (b) the Daily VWAP on such Trading Day.


 


“Daily Measurement Value”
means the Specified Dollar Amount (if any), divided by 40.


 


“Daily Settlement Amount,”
for each of the 40 consecutive Trading Days during the Observation Period,
shall consist of:


 


3

















 


(a)           cash
equal to the lesser of (i) the Daily Measurement Value and (ii) the
Daily Conversion Value; and


 


(b)           if
the Daily Conversion Value exceeds the Daily Measurement Value, a number of
shares of Common Stock equal to (i) the difference between the Daily
Conversion Value and the Daily Measurement Value, divided by
(ii) the Daily VWAP for such Trading Day.


 


“Daily VWAP”
means, for each of the 40 consecutive Trading days during the applicable
Observation Period, the per share volume-weighted average price as displayed
under the heading “Bloomberg VWAP” on Bloomberg page “AEL <equity>
AQR” (or its equivalent successor if such page is not available) in
respect of the period from the scheduled open of trading until the scheduled
close of trading of the primary trading session on such Trading Day (or if such
volume-weighted average price is unavailable, the market value of one share of
the Common Stock on such Trading Day determined, using a volume-weighted
average method, by a nationally recognized independent investment banking firm
retained for this purpose by the Company). 
The “Daily VWAP” shall be determined
without regard to after hours trading or any other trading outside of the
regular trading session trading hours.


 


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


 


“Defaulted Amounts”
means any amounts on any Note (including, without limitation, the Fundamental
Change Repurchase Price, principal and interest) that are payable but are not
punctually paid or duly provided for.


 


“Depositary”
means, with respect to each Global Note, the Person specified in Section 2.05(c) as
the Depositary with respect to such Notes, until a successor shall have been
appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter, “Depositary”
shall mean or include such successor.


 


“Distributed Property”
shall have the meaning specified in Section 14.04(c).


 


“Effective Date”
shall have the meaning specified in Section 14.03(c).


 


“Event of Default”
shall have the meaning specified in Section 6.01.


 


“Ex-Dividend Date”
means the first date on which shares of the Common Stock trade on the
applicable exchange or in the applicable market, regular way, without the right
to receive the issuance or distribution in question, from the Company or, if
applicable, from the seller of Common Stock on such exchange or market (in the
form of due bills or otherwise) as determined by such exchange or market.


 


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


 


“Financial Institution”
shall have the meaning specified in Section 14.13(a).


 


4

















 


“Form of Assignment
and Transfer” shall mean the “Form of Assignment and Transfer”
attached as Attachment 3 to the Form of Note attached hereto as Exhibit A.


 


“Form of Fundamental
Change Repurchase Notice” shall mean the “Form of Fundamental
Change Repurchase Notice” attached as Attachment 2 to the Form of Note
attached hereto as Exhibit A.


 


“Form of Notice of
Conversion” shall mean the “Form of Notice of Conversion”
attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.


 


“Fundamental Change”
shall be deemed to have occurred at the time after the Notes are originally
issued if any of the following occurs:


 


(a)           a
“person” or “group” within the meaning of Section 13(d) of the
Exchange Act, other than the Company, its Subsidiaries and the employee benefit
plans of the Company and its Subsidiaries, has become the direct or indirect “beneficial
owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s
Common Equity representing more than 50% of the voting power of the Company’s
Common Equity;


 


(b)           the
consummation of (A) any recapitalization, reclassification or change of
the Common Stock (other than changes resulting from a subdivision or
combination) as a result of which the Common Stock would be converted into, or
exchanged for, stock, other securities, other property or assets; (B) any
share exchange, consolidation or merger of the Company pursuant to which the
Common Stock will be converted into cash, securities or other property; or (C) any
sale, lease or other transfer in one transaction or a series of transactions of
all or substantially all of the consolidated assets of the Company and its
Subsidiaries, taken as a whole, to any Person other than one of the Company’s
Subsidiaries (excluding a pledge of securities issued by any of the Company’s
Subsidiaries); provided, however,
that a transaction described in clause (B) in which the holders of all
classes of the Company’s Common Equity immediately prior to such transaction
own, directly or indirectly, more than 50% of all classes of Common Equity of
the continuing or surviving corporation immediately after such transaction in
substantially the same proportions as such ownership (subject to adjustment for
any such transaction in which the Company’s stockholders have the right to
elect to receive more than a single type of consideration) immediately prior to
such transaction shall not be a Fundamental Change pursuant to this clause (b);


 


(c)           the
stockholders of the Company approve any plan or proposal for the liquidation or
dissolution of the Company; or


 


(d)           the
Common Stock (or other common stock underlying the Notes) ceases to be listed
or quoted on any of The New York Stock Exchange, The NASDAQ Global Select
Market or The NASDAQ Global Market (or any of their respective successors);


 


provided,
however, that a transaction or
transactions described in clauses (a) or (b) above shall not
constitute a Fundamental Change, if at least 90% of the consideration received
or to be 


 


5

















 


received by the common stockholders of the Company,
excluding cash payments for fractional shares and cash payments made pursuant
to dissenters’ appraisal rights, in connection with such transaction or
transactions consists of shares of Publicly Traded Securities, and as a result
of this transaction or transactions the Notes become convertible (pursuant to
the provisions set forth in Section 14.01(a)(ii), Section 14.01(b)(i)(A),
Section 14.01(b)(ii) or Section 14.01(b)(iv)) into such
consideration, excluding cash payments for fractional shares and cash payments
made pursuant to dissenters’ appraisal rights (subject to the provisions of Section 14.02).


 


For purposes of this definition, any transaction or
event that constitutes a Fundamental Change under both clause (a) and (b) above
will be deemed to be a Fundamental Change solely under clause (b) of this
definition.


 


“Fundamental Change Company
Notice” shall have the meaning specified in Section 15.02(c).


 


“Fundamental Change
Repurchase Date” shall have the meaning specified in Section 15.02(a).


 


“Fundamental Change
Repurchase Notice” shall have the meaning specified in Section 15.02(b)(i).


 


“Fundamental Change
Repurchase Price” shall have the meaning specified in Section 15.02(a).


 


“Global Note”
shall have the meaning specified in Section 2.05(b).


 


“Holder,” as
applied to any Note, or other similar terms (but excluding the term “beneficial
holder”), shall mean any person in whose name at the time a particular Note is
registered on the Note Register.


 


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


 


“Initial Dividend Threshold”
shall have the meaning specified in Section 14.04(d).


 


“Interest Payment Date”
means each March 15 and September 15 of each year, beginning on March 15,
2011.


 


“Last Reported Sale Price”
of the Common Stock 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 that date as reported in composite transactions for the
principal United States national securities exchange on which the Common Stock
is traded.  If the Common Stock is not
listed for trading on a United States national securities exchange on the
relevant date, the “Last Reported Sale Price”
shall be the last quoted bid price for the Common Stock in the over-the-counter
market on the relevant date as reported by Pink OTC Markets Inc. or a similar
organization.  If the Common Stock is not
so quoted, the “Last Reported Sale Price” shall be
the average of the mid-point of the last bid and ask prices for the Common
Stock on the relevant date from each of 


 


6

















 


at least three nationally recognized independent
investment banking firms selected by the Company for this purpose.


 


“Make-Whole Fundamental
Change” means any transaction or event that constitutes a
Fundamental Change described in clause (a), clause (b) or clause (d) of
the definition thereof (as defined above and determined after giving effect to
any exceptions to or exclusions from such definition, but without regard to the
proviso in clause (b) of the
definition thereof).


 


“Market Disruption Event”
means (a) a failure by the primary United States national securities
exchange or market on which the Common Stock is listed or admitted for trading
to open for trading during its regular trading session or (b) the
occurrence or existence prior to 1:00 p.m., New York City time, on any
Scheduled Trading Day for the Common Stock for more than one half-hour period
in the aggregate during regular trading hours of any suspension or limitation
imposed on trading (by reason of movements in price exceeding limits permitted
by the relevant stock exchange or otherwise) in the Common Stock or in any
options, contracts or future contracts relating to the Common Stock.


 


“Maturity Date”
means September 15, 2015.


 


“Measurement Period”
shall have the meaning specified in Section 14.01(b)(i)(A).


 


“Merger Common Stock”
shall have the meaning specified in Section 14.07(e)(i).


 


“Merger Event”
shall have the meaning specified in Section 14.07(a).


 


“Merger Valuation
Percentage” for any Merger Event shall be equal to (x) the
arithmetic average of the Last Reported Sale Prices of one share of such Merger
Common Stock over the relevant Merger Valuation Period (determined as if
references to “Common Stock” in the definition of “Last Reported Sale Price”
were references to the “Merger Common Stock” for such Merger Event), divided by (y) the arithmetic average
of the Last Reported Sale Prices of one share of Common Stock over the relevant
Merger Valuation Period.


 


“Merger Valuation
Period” for any Merger Event means the five consecutive Trading Day
period immediately preceding, but excluding, the effective date for such Merger
Event.


 


“Note” or “Notes” shall have the meaning specified in the first paragraph
of the recitals of this Indenture.


 


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


 


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


 


“Notice of Conversion”
shall have the meaning specified in Section 14.02(b).


 


“Observation Period”
with respect to any Note surrendered for conversion means: (i) if the
relevant Conversion Date occurs prior to March 15, 2015, the 40
consecutive Trading Day period beginning on, and including, the second Trading
Day after such Conversion Date; and (ii) if the relevant Conversion Date
occurs on or after March 15, 2015, the 40 consecutive Trading 


 


7

















 


Day period beginning on, and including, the 42nd
Scheduled Trading Day immediately preceding the Maturity Date.


 


“Offering Memorandum”
means the preliminary offering memorandum dated September 15, 2010, as
supplemented by the pricing term sheet dated September 16, 2010, relating
to the offering and sale of the Notes.


 


“Officer” means,
with respect to the Company, the President, the Chief Executive Officer, the
Treasurer, the Secretary, any Executive or Senior Vice President or any Vice
President (whether or not designated by a number or numbers or word or words
added before or after the title “Vice President”).


 


“Officers’ Certificate,”
when used with respect to the Company, means a certificate that is delivered to
the Trustee and that is signed by (a) two Officers of the Company or (b) one
Officer of the Company and one of the Treasurer, any Assistant Treasurer, the
Secretary, any Assistant Secretary or the Controller of the Company.  Each such certificate shall include the
statements provided for in Section 17.05 if and to the extent required by
the provisions of such Section.  One of
the Officers giving an Officers’ Certificate pursuant to Section 4.08
shall be the principal executive, financial or accounting officer of the
Company.


 


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


 


“Opinion of Counsel”
means an opinion in writing signed by legal counsel, who may be an employee of
or counsel to the Company, or other counsel acceptable to the Trustee, that is
delivered to the Trustee.  Each such
opinion shall include the statements provided for in Section 17.05 if and
to the extent required by the provisions of such Section 17.05.


 


“Option Counterparty”
shall have the meaning specified in Section 14.02(a).


 


“Option Counterparty
Reorganization Event” shall have the meaning specified in Section 14.02(a).


 


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


 


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


 


(b)           Notes,
or portions thereof, for the payment or repurchase of which monies in the
necessary amount shall have been deposited in trust with the Trustee or with
any Paying Agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own Paying
Agent); provided that, if any such Note is
repurchased, the Holder thereof shall have delivered a Fundamental Change
Repurchase Notice in accordance with Article 15;


 


(c)           Notes
that have been paid pursuant to Section 2.06 or Notes in lieu of which, or
in substitution for which, other Notes shall have been authenticated and 


 


8

















 


delivered pursuant to the terms of Section 2.06
unless proof satisfactory to the Trustee is presented that any such Notes are
held by protected purchasers in due course;


 


(d)           Notes
converted pursuant to Article 14 and required to be cancelled pursuant to Section 2.08;
and


 


(e)           Notes
repurchased by the Company pursuant to the penultimate sentence of Section 2.10.


 


“Paying Agent”
shall have the meaning specified in Section 4.02.


 


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


 


“Physical Notes”
means permanent certificated Notes in registered form issued in denominations
of $1,000 principal amount and multiples thereof.


 


“Physical Settlement”
shall have the meaning specified in Section 14.02(a).


 


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


 


“Publicly Traded Securities”
means shares of common stock or other certificates representing common equity
interests that are listed or quoted on any of The New York Stock Exchange, The
NASDAQ Global Select Market or The NASDAQ Global Market (or any of their
respective successors) or will be so listed or quoted when issued or exchanged
in connection with a Fundamental Change described in clause (a) or clause (b) of
the definition thereof.


 


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


 


“Reference Property”
shall have the meaning specified in Section 14.07(a).


 


“Regular Record Date,”
with respect to any Interest Payment Date, shall mean the March 1 or September 1
(whether or not such day is a Business Day) immediately preceding the applicable
March 15 or September 15 Interest Payment Date, respectively.


 


“Resale Restriction
Termination Date” shall have the meaning specified in Section 2.05(c).


 


9

















 


“Responsible Officer”
means, when used with respect to the Trustee, any officer within the corporate
trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, 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.


 


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


 


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


 


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


 


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


 


“Settlement Amount”
has the meaning specified in Section 14.02(a)(iv).


 


“Settlement Method”
means, with respect to any conversion of Notes, Physical Settlement, Cash
Settlement or Combination Settlement, as elected (or deemed to have been
elected) by the Company.


 


“Settlement Notice”
has the meaning specified in Section 14.02(a)(iii).


 


“Significant Subsidiary”
means a Subsidiary of the Company that meets the definition of “significant
subsidiary” in Article 1, Rule 1-02 of Regulation S-X under the
Exchange Act.


 


“Specified Dollar Amount”
means the maximum cash amount per $1,000 principal amount of Notes to be
received upon conversion as specified in the Settlement Notice related to any
converted Notes.


 


“Spin-Off” shall
have the meaning specified in Section 14.04(c).


 


“Stock Price”
shall have the meaning specified in Section 14.03(c).


 


“Subsidiary”
means, with respect to any Person, any corporation, association, partnership or
other business entity of which more than 50% of the total voting power of
shares of Capital Stock or other interests (including partnership interests)
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers, general partners or trustees thereof is at the
time owned or controlled, directly or indirectly, by (i) such Person; (ii) such
Person and one or more Subsidiaries of such Person; or (iii) one or more
Subsidiaries of such Person.


 


“Successor Company”
shall have the meaning specified in Section 11.01(a).


 


10






 












 


“Trading Day”
means a day on which (i) trading in the Common Stock generally occurs on
The New York Stock Exchange or, if the Common Stock is not then listed on The
New York Stock Exchange, on the principal other United States national
securities exchange on which the Common Stock is then listed or, if the Common
Stock is not then listed on a United States national securities exchange, on
the principal other market on which the Common Stock is then traded and (ii) a
Last Reported Sale Price for the Common Stock is available on such securities
exchange or market; provided that
if the Common Stock (or other security for which a closing sale price must be
determined) is not so listed or traded, “Trading Day”
means a Business Day; and provided,  further, that for purposes of determining amounts due upon
conversion only, “Trading Day”
means a day on which (x) there is no Market Disruption Event and (y) trading
in the Common Stock generally occurs on The New York Stock Exchange or, if the
Common Stock is not then listed on The New York Stock Exchange, on the
principal other United States national securities exchange on which the Common
Stock is then listed or, if the Common Stock is not then listed on a United
States national securities exchange, on the principal other market on which the
Common Stock is then listed or admitted for trading, except that if the Common
Stock (or other security for which a Daily VWAP must be determined) is not so
listed or admitted for trading, “Trading Day”
means a Business Day.


 


“Trading Price”
of the Notes on any date of determination means the average of the secondary
market bid quotations obtained by the Bid Solicitation Agent for $1 million
principal amount of Notes at approximately 3:30 p.m., New York City time,
on such determination date from three independent nationally recognized
securities dealers the Company selects; provided that,
if three such bids cannot reasonably be obtained by the Bid Solicitation Agent,
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 Bid Solicitation
Agent, that one bid shall be used. If the Bid Solicitation Agent cannot
reasonably obtain at least one bid for $1 million principal amount of Notes
from a nationally recognized securities dealer, then the Trading Price per
$1,000 principal amount of Notes shall be deemed to be less than 98% of the
product of the Last Reported Sale Price of the Common Stock and the applicable
Conversion Rate.


 


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


 


“Trigger Event”
shall have the meaning specified in Section 14.04(c).


 


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


 


“Trustee” means
the Person named as the “Trustee” in the
first paragraph of this Indenture until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a
Trustee hereunder.


 


“unit of Reference Property”
shall have the meaning specified in Section 14.07(a).


 


“Valuation Period”
shall have the meaning specified in Section 14.04(c).


 


11

















 


Section 1.02.  References to Interest.  Unless the context otherwise requires,
any reference to interest on, or in respect of, any Note in this Indenture
shall be deemed to include Additional Interest if, in such context, Additional
Interest is, was or would be payable pursuant to any of Section 4.06(d), Section 4.06(e) and
Section 6.03. Unless the context otherwise requires, any express mention
of Additional Interest in any provision hereof shall not be construed as
excluding Additional Interest in those provisions hereof where such express mention
is not made.


 


ARTICLE 2

ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES


 


Section 2.01.  Designation and Amount.  The Notes shall be designated as the “3.50%
Convertible Senior Notes due 2015.” The aggregate principal amount of Notes that
may be authenticated and delivered under this Indenture is initially limited to
$200,000,000, subject to Section 2.10 and except for Notes authenticated
and delivered upon registration or transfer of, or in exchange for, or in lieu
of other Notes pursuant to Section 2.05, Section 2.06, Section 10.04,
Section 14.02 and Section 15.04.


 


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


 


Any Global Note may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Indenture as may be required by the
Custodian or the Depositary, or as may be required to comply with any
applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange or automated quotation system upon which
the Notes may be listed or traded or designated for issuance or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Notes are subject.


 


Any of the Notes may have such letters, numbers or
other marks of identification and such notations, legends or endorsements as
the Officers executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be
listed or designated for issuance, or to conform to usage or to indicate any special
limitations or restrictions to which any particular Notes are subject.


 


Each Global Note shall represent such principal
amount of the outstanding Notes as shall be specified therein and shall provide
that it shall represent the aggregate principal amount of outstanding Notes
from time to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be increased or
reduced to reflect 


 


12

















 


repurchases, conversions, transfers or exchanges
permitted hereby.  Any endorsement of the
Global Note to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in such manner and upon
instructions given by the Holder of such Notes in accordance with this
Indenture.  Payment of principal
(including the Fundamental Change Repurchase Price, if applicable) of, and
accrued and unpaid interest on, the Global Note shall be made to the Holder of
such Note on the date of payment, unless a record date or other means of
determining Holders eligible to receive payment is provided for herein.


 


Section 2.03.  Date and Denomination of
Notes; Payments of Interest and Defaulted Amounts.  (a) The Notes shall be issuable in
registered form without coupons in denominations of $1,000 principal amount and
integral multiples thereof.  Each Note
shall be dated the date of its authentication and shall bear interest from the
date specified on the face of the form of Note attached as Exhibit A
hereto.  Accrued interest on the Notes
shall be computed on the basis of a 360-day year composed of twelve 30-day
months.


 


(b)        The
Person in whose name any Note (or its Predecessor Note) is registered on the
Note Register at the close of business on any Regular Record Date with respect
to any Interest Payment Date shall be entitled to receive the interest payable
on such Interest Payment Date.  Interest
shall be payable at the office or agency of the Company maintained by the
Company for such purposes, which shall initially be the Corporate Trust
Office.  The Company shall pay interest (i) on
any Physical Notes (A) to Holders having an aggregate principal amount of
$5,000,000 or less, by check mailed to the Holders of these Notes at their
address as it appears in the Note Register and (B) to Holders having an
aggregate principal amount of more than $5,000,000, either by check mailed to
the Holders of these Notes or upon application by a Holder to the Note
Registrar not later than the relevant Regular Record Date, by wire transfer in
immediately available funds to that Holder’s account within the United States,
which application shall remain in effect until the Holder notifies, in writing,
the Note Registrar to the contrary or (ii) on any Global Note by wire
transfer of immediately available funds to the account of the Depositary or its
nominee.


 


(c)        Any
Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant
payment date by virtue of its having been such Holder but shall accrue interest
per annum at the rate borne by the Notes, subject to the enforceability thereof
under applicable law, from, and including, such relevant payment date to, but
excluding, the date on which such Defaulted Amounts shall have been paid by the
Company, at its election in each case, as provided in clause (i) or (ii) below:


 


(i)            The
Company may elect to make payment of any Defaulted Amounts to the Persons in
whose names the Notes (or their respective Predecessor Notes) are registered at
the close of business on a special record date for the payment of such
Defaulted Amounts, which shall be fixed in the following manner.  The Company shall notify the Trustee in
writing of the amount of the Defaulted Amounts proposed to be paid on each Note
and the date of the proposed payment (which shall be not less than 25 days
after the receipt by the Trustee of such notice, unless the Trustee shall
consent to an earlier date), and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount to be paid in
respect of such Defaulted Amounts


 


13

















 


or
shall make arrangements satisfactory to the Trustee for such deposit on or
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Amounts as
in this clause provided.  Thereupon the Company
shall fix a special record date for the payment of such Defaulted Amounts which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment, and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. 
The Company shall promptly notify the Trustee of such special record
date and the Trustee, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Amounts and the special
record date therefor to be mailed, first-class postage prepaid, to each Holder
at its address as it appears in the Note Register, not less than 10 days prior
to such special record date.  Notice of
the proposed payment of such Defaulted Amounts and the special record date
therefor having been so mailed, such Defaulted Amounts shall be paid to the
Persons in whose names the Notes (or their respective Predecessor Notes) are
registered at the close of business on such special record date and shall no
longer be payable pursuant to the following clause (ii) of this Section 2.03(c).


 


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


 


Section 2.04.  Execution, Authentication and
Delivery of Notes.  The Notes
shall be signed in the name and on behalf of the Company by the manual or
facsimile signature of its Chief Executive Officer, President, Chief Financial
Officer, Treasurer, Secretary or any of its Executive or Senior Vice
Presidents.


 


At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Notes
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Notes, and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Notes, without any further action by the Company hereunder.


 


Only such Notes as shall bear thereon a certificate
of authentication substantially in the form set forth on the form of Note
attached as Exhibit A hereto, executed manually by a Responsible Officer
of the Trustee (or an authenticating agent appointed by the Trustee as provided
by Section 17.10), shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. 
Such certificate by the Trustee (or such an authenticating agent) upon
any Note executed by the Company shall be conclusive evidence that the Note so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.


 


In case any Officer of the Company who shall have
signed any of the Notes shall cease to be such Officer before the Notes so
signed shall have been authenticated and delivered by the 


 


14

















 


Trustee, or disposed of by the Company, such Notes
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed such Notes had not ceased to be such Officer of the Company;
and any Note may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Note, shall be the Officers of the
Company, although at the date of the execution of this Indenture any such
Person was not such an Officer.


 


Section 2.05.  Exchange and Registration of
Transfer of Notes; Restrictions on Transfer; Depositary.  (a) The Company shall cause to be kept
at the Corporate Trust Office a register (the register maintained in such
office or in any other office or agency of the Company designated pursuant to Section 4.02,
the “Note Register”) in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Notes and of transfers of Notes.  Such register shall be in written form or in
any form capable of being converted into written form within a reasonable
period of time.  The Trustee is hereby
appointed the “Note Registrar” for the purpose of
registering Notes and transfers of Notes as herein provided.  The Company may appoint one or more co-Note
Registrars in accordance with Section 4.02.


 


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


 


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


 


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


 


No service charge shall be charged to the Holder
for any exchange or registration of transfer of Notes, but the Company or the
Trustee may require a Holder to pay a sum sufficient to cover any tax or other
similar governmental charge required by law or permitted pursuant to Section 14.02(e).


 


None of the Company, the Trustee, the Note
Registrar or any co-registrar shall be required to exchange or register a
transfer of (i) any Notes surrendered for conversion or, if a portion of
any Note is surrendered for conversion, such portion thereof surrendered for
conversion or (ii) any Notes, or a portion of any Note, surrendered for
repurchase (and not withdrawn) in accordance with Article 15.


 


15

















 


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


 


(b)        So
long as the Notes are eligible for book-entry settlement with the Depositary,
unless otherwise required by law, all Notes shall be represented by one or more
Notes in global form (each, a “Global Note”)
registered in the name of the Depositary or the nominee of the Depositary.  The transfer and exchange of beneficial
interests in a Global Note that does not involve the issuance of a Physical
Note, shall be effected through the Depositary (but not the Trustee or the
Custodian) in accordance with this Indenture (including the restrictions on
transfer set forth herein) and the procedures of the Depositary therefor.


 


(c)        Every
Note that bears or is required under this Section 2.05(c) to bear the
legend set forth in this Section 2.05(c) (together with any Common
Stock issued upon conversion of the Notes and required to bear the legend set
forth in Section 2.05(d), collectively, the “Restricted
Securities”) shall be subject to the restrictions on transfer set forth
in this Section 2.05(c) (including the legend set forth below),
unless such restrictions on transfer shall be eliminated or otherwise waived by
written consent of the Company, and the Holder of each such Restricted
Security, by such Holder’s acceptance thereof, agrees to be bound by all such
restrictions on transfer.  As used in
this Section 2.05(c) and Section 2.05(d), the term “transfer” encompasses any sale, pledge, transfer or other
disposition whatsoever of any Restricted Security.


 


Until the date (the “Resale
Restriction Termination Date”) that is the later of (1) the
date that is one year after the last date of original issuance of the Notes, or
such shorter period of time as permitted by Rule 144 under the Securities
Act or any successor provision thereto, and (2) such later date, if any,
as may be required by applicable law, any certificate evidencing such Note (and
all securities issued in exchange therefor or substitution thereof, other than
Common Stock, if any, issued upon conversion thereof which shall bear the
legend set forth in Section 2.05(d), if applicable) shall bear a legend in
substantially the following form (unless such Notes have been transferred
pursuant to a registration statement that has become or been declared effective
under the Securities Act and that continues to be effective at the time of such
transfer, or sold pursuant to the exemption from registration provided by Rule 144
or any similar provision then in force under the Securities Act, or unless
otherwise agreed by the Company in writing, with notice thereof to the
Trustee):


 


THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE
UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE ACQUIRER:


 


(1)           REPRESENTS THAT IT AND
ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE
INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND


 


16

















 


(2)           AGREES FOR THE BENEFIT OF
THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS
SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER
OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY
SUCCESSOR PROVISION THERETO, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW, EXCEPT:


 


(A)          TO
AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY (THE “COMPANY”)
OR ANY SUBSIDIARY THEREOF, OR


 


(B)          PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT,
OR


 


(C)          TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, OR


 


(D)          PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.


 


PRIOR TO THE REGISTRATION OF ANY TRANSFER IN
ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE
RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER
EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE
PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE
AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.


 


NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE
SECURITIES ACT) OF THE COMPANY OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED
IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY DURING THE THREE
IMMEDIATELY PRECEDING MONTHS MAY PURCHASE OR OTHERWISE ACQUIRE THIS NOTE
OR A BENEFICIAL INTEREST HEREIN.


 


No transfer of any Note prior to the Resale
Restriction Termination Date will be registered by the Note Registrar unless
the applicable box on the Form of Assignment and Transfer has been
checked.


 


Any Note (or security issued in exchange or
substitution therefor) as to which such restrictions on transfer shall have
expired in accordance with their terms may, upon surrender of such Note for
exchange to the Note Registrar in accordance with the provisions of this Section 2.05,
be exchanged for a new Note or Notes, of like tenor and aggregate principal
amount, which shall not bear the restrictive legend required by this Section 2.05(c).  So long as the Notes are 


 


17

















 


represented by a Global Note that is held by or on
behalf of the Depositary only, the Company may accomplish any delegending of
such Notes by:  (i) instructing the
Trustee to remove the restrictive legend required by Section 2.05(d) from
the Notes and instructing the transfer agent for the Common Stock to remove
such legend from the Common Stock issued upon conversion of the Notes, if any,
(ii) notifying Holders of the Notes and Common Stock issued upon
conversion of the Notes that the restrictive legend required by this Section 2.05(c) or
Section 2.05(d) have been removed or deemed removed,
(iii) notifying the Trustee, the transfer agent for the Common Stock and
DTC to change the CUSIP number for the Notes and the Common Stock issued upon
conversion of the Notes, if any, to the applicable unrestricted CUSIP number,
and (iv) complying with the applicable procedures of the Depositary for
delegending.  In connection with any
request for delegending made by the Company to the Trustee pursuant to this Section 2.05(c),
the Trustee may request an Opinion of Counsel stating that the restrictions on
transfer are no longer applicable under the securities laws.  The Company shall promptly notify the Trustee
upon the occurrence of the Resale Restriction Termination Date and promptly
after a registration statement, if any, with respect to the Notes or any Common
Stock issued upon conversion of the Notes has been declared effective under the
Securities Act.


 


Notwithstanding any other provisions of this
Indenture (other than the provisions set forth in this Section 2.05(c)), a
Global Note may not be transferred as a whole or in part except (i) by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary and (ii) for transfers of portions of a Global Note in
certificated form made upon request of a member of, or a participant in, the
Depositary (for itself or on behalf of a beneficial owner) by written notice
given to the Trustee by or on behalf of the Depositary in accordance with
customary procedures of the Depositary and in compliance with this Section 2.05(c).


 


The Depositary shall be a clearing agency
registered under the Exchange Act.  The
Company initially appoints The Depository Trust Company to act as Depositary
with respect to each Global Note. 
Initially, each Global Note shall be issued to the Depositary,
registered in the name of Cede & Co., as the nominee of the
Depositary, and deposited with the Trustee as custodian for Cede & Co.


 


If (i) the Depositary notifies the Company at
any time that the Depositary is unwilling or unable to continue as depositary
for the Global Notes and a successor depositary is not appointed within 90
days, (ii) the Depositary ceases to be registered as a clearing agency
under the Exchange Act and a successor depositary is not appointed within 90
days or (iii) an Event of Default with respect to the Notes has occurred
and is continuing and a beneficial owner of the Notes requests that its Notes
be issued as Physical Notes, the Company will execute, and the Trustee, upon
receipt of an Officers’ Certificate and a Company Order for the authentication
and delivery of Notes, will authenticate and deliver Physical Notes to each
such beneficial owner of the related Notes (or a portion thereof) in an
aggregate principal amount equal to the principal amount of such Global Note,
in exchange for such Global Note, and upon delivery of the Global Note to the
Trustee such Global Note shall be canceled.


 


Physical Notes issued in exchange for all or a part
of the Global Note pursuant to this Section 2.05(c) shall be
registered in such names and in such authorized denominations as the 


 


18

















 


Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee.  Upon execution and authentication, the
Trustee shall deliver such Physical Notes to the Persons in whose names such
Physical Notes are so registered.


 


At such time as all interests in a Global Note have
been converted, canceled, repurchased or transferred, such Global Note shall
be, upon receipt thereof, canceled by the Trustee in accordance with standing
procedures and existing instructions between the Depositary and the
Custodian.  At any time prior to such
cancellation, if any interest in a Global Note is exchanged for Physical Notes,
converted, canceled, repurchased or transferred to a transferee who receives
Physical Notes therefor or any Physical Note is exchanged or transferred for
part of such Global Note, the principal amount of such Global Note shall, in
accordance with the standing procedures and instructions existing between the
Depositary and the Custodian, be appropriately reduced or increased, as the
case may be, and an endorsement shall be made on such Global Note, by the
Trustee or the Custodian, at the direction of the Trustee, to reflect such
reduction or increase.


 


Neither the Company, the Trustee nor any agent of
the Company or the Trustee shall have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Note or maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.


 


(d)        Until
the Resale Restriction Termination Date, any stock certificate representing
Common Stock issued upon conversion of such Note shall bear a legend in
substantially the following form (unless such Common Stock has been transferred
pursuant to a registration statement that has become or been declared effective
under the Securities Act and that continues to be effective at the time of such
transfer, or pursuant to the exemption from registration provided by Rule 144
or any similar provision then in force under the Securities Act, or such Common
Stock has been issued upon conversion of Notes that have been transferred
pursuant to a registration statement that has become or been declared effective
under the Securities Act and that continues to be effective at the time of such
transfer, or pursuant to the exemption from registration provided by Rule 144
or any similar provision then in force under the Securities Act, or unless
otherwise agreed by the Company with written notice thereof to the Trustee and
any transfer agent for the Common Stock):


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE ACQUIRER:


 


(1)           REPRESENTS THAT IT AND
ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE
INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND


 


(2)           AGREES FOR THE BENEFIT OF
THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS
SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE 


 


19

















 


LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL
ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER
THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:


 


(A)          TO
AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY (THE “COMPANY”)
OR ANY SUBSIDIARY THEREOF, OR


 


(B)          PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT,
OR


 


(C)          TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, OR


 


(D)          PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.


 


PRIOR TO THE REGISTRATION OF ANY TRANSFER IN
ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE
RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER
EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE
PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE
AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.


 


Any such Common Stock as to which such restrictions
on transfer shall have expired in accordance with their terms may, upon
surrender of the certificates representing such shares of Common Stock for
exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like aggregate
number of shares of Common Stock, which shall not bear the restrictive legend
required by this Section 2.05(d).


 


(e)        Any
Note or Common Stock issued upon the conversion or exchange of a Note that is
repurchased or owned by the Company, any Affiliate thereof or any Person that
was an Affiliate within the three immediately preceding months as of the last
date of original issuance of the Notes may not be resold by the Company or such
Affiliate unless registered under the Securities Act or resold pursuant to an
exemption from the registration requirements of the Securities Act in a
transaction that results in such Notes or Common Stock, as the case may be, no
longer being “restricted securities” (as defined under Rule 144 under the
Securities Act).


 


Section 2.06.  Mutilated, Destroyed, Lost or
Stolen Notes.  In case any
Note shall become mutilated or be destroyed, lost or stolen, the Company in its
discretion may execute, and upon its written request the Trustee or an
authenticating agent appointed by the Trustee shall authenticate


 


20






 


 


 












 


and deliver, a new Note, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Note, or in lieu of and in substitution for the Note so destroyed, lost or
stolen.  In every case the applicant for
a substituted Note shall furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent such security or indemnity as may be
required by them to save each of them harmless from any loss, liability, cost
or expense caused by or connected with such substitution, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company, to
the Trustee and, if applicable, to such authenticating agent evidence to their
satisfaction of the destruction, loss or theft of such Note and of the
ownership thereof.


 


The Trustee or such authenticating agent may
authenticate any such substituted Note and deliver the same upon the receipt of
such security or indemnity as the Trustee, the Company and, if applicable, such
authenticating agent may require.  Upon
the issuance of any substitute Note, the Company or the Trustee may require the
payment by the Holder of a sum sufficient to cover any tax, assessment or other
governmental charge that may be imposed in relation thereto and any other expenses
connected therewith.  In case any Note
that has matured or is about to mature or has been surrendered for required
repurchase or is about to be converted in accordance with Article 14 shall
become mutilated or be destroyed, lost or stolen, the Company may, in its sole
discretion, instead of issuing a substitute Note, pay or authorize the payment
of or convert or authorize the conversion of the same (without surrender
thereof except in the case of a mutilated Note), as the case may be, if the
applicant for such payment or conversion shall furnish to the Company, to the
Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any
loss, liability, cost or expense caused by or connected with such substitution,
and, in every case of destruction, loss or theft, evidence satisfactory to the
Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent
evidence of their satisfaction of the destruction, loss or theft of such Note
and of the ownership thereof.


 


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


 


Section 2.07.  Temporary Notes.  Pending the preparation of Physical Notes,
the Company may execute and the Trustee or an authenticating agent appointed by
the Trustee shall, upon written request of the Company, authenticate and
deliver temporary Notes (printed or lithographed).  Temporary Notes shall be issuable in any
authorized denomination, and substantially in the form of the Physical Notes
but with such omissions, insertions and variations as may be appropriate for
temporary Notes, all as may be determined by the Company.  Every such temporary Note shall be executed
by the Company and authenticated by the Trustee or such 


 


21

















 


authenticating agent upon the same conditions and
in substantially the same manner, and with the same effect, as the Physical
Notes.  Without unreasonable delay, the
Company will execute and deliver to the Trustee or such authenticating agent
Physical Notes (other than any Global Note) and thereupon any or all temporary
Notes (other than any Global Note) may be surrendered in exchange therefor, at
each office or agency maintained by the Company pursuant to Section 4.02
and the Trustee or such authenticating agent shall authenticate and deliver in
exchange for such temporary Notes an equal aggregate principal amount of
Physical Notes.  Such exchange shall be
made by the Company at its own expense and without any charge therefor.  Until so exchanged, the temporary Notes shall
in all respects be entitled to the same benefits and subject to the same
limitations under this Indenture as Physical Notes authenticated and delivered
hereunder.


 


Section 2.08.  Cancellation of Notes Paid,
Converted, Etc.  Subject
to Section 14.13, the Company shall cause all Notes surrendered for the
purpose of payment, repurchase, registration of transfer or exchange or
conversion, if surrendered to any Person other than the Trustee (including any
of the Company’s Agents, Subsidiaries or Affiliates), to be delivered to the
Trustee for cancellation.  All Notes
delivered to the Trustee shall be canceled promptly by it, and no Notes shall
be authenticated in exchange thereof except as expressly permitted by any of
the provisions of this Indenture.  The
Trustee shall dispose of canceled Notes in accordance with its customary
procedures and, after such disposition, shall deliver a certificate of such
disposition to the Company, at the Company’s written request in a Company
Order.


 


Section 2.09.  CUSIP Numbers.  The Company in issuing the Notes may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in all notices issued to Holders as a convenience to such Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or on such notice and that reliance may be placed only on the
other identification numbers printed on the Notes.  The Company will promptly notify the Trustee
in writing of any change in the “CUSIP” numbers.


 


Section 2.10.  Additional Notes; Repurchases.  The Company may, without the consent of the
Holders and notwithstanding Section 2.01, reopen this Indenture and issue
additional Notes hereunder with the same terms and with the same CUSIP number
as the Notes initially issued hereunder in an unlimited aggregate principal
amount; provided that such additional Notes must
be part of the same issue as the Notes initially issued hereunder for U.S.
federal income tax purposes.  Prior to
the issuance of any such additional Notes, the Company shall deliver to the
Trustee a Company Order, an Officers’ Certificate and an Opinion of Counsel,
such Officers’ Certificate and Opinion of Counsel to cover such matters, in
addition to those required by Section 17.05, as the Trustee shall
reasonably request.  In addition, the
Company may, to the extent permitted by law, directly or indirectly (regardless
of whether such Notes are surrendered to the Company), repurchase Notes in the
open market or otherwise, whether by the Company or its Subsidiaries or through
a private or public tender or exchange offer or through counterparties to
private agreements, including by cash-settled swaps or other derivatives.  The Company shall cause any Notes so
purchased to be surrendered to the Trustee for cancellation in accordance with Section 2.08.  For the avoidance of doubt, for the purpose
of the foregoing, Notes purchased pursuant to cash-settled swaps or other
derivatives shall not be considered “purchased.”


 


22

















 


ARTICLE 3

SATISFACTION AND DISCHARGE


 


Section 3.01.  Satisfaction and Discharge.  This Indenture shall upon request of the
Company contained in an Officers’ Certificate cease to be of further effect,
and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when (a) (i) all
Notes theretofore authenticated and delivered (other than (x) Notes which
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.06 and (y) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as provided
in Section 4.04(d)) have been delivered to the Trustee for cancellation;
or (ii) the Company has deposited with the Trustee or delivered to
Holders, as applicable, after the Notes have become due and payable, whether at
the Maturity Date, any Fundamental Change Repurchase Date, upon conversion or
otherwise, cash, shares of Common Stock or a combination thereof, as
applicable, solely to satisfy the Company’s Conversion Obligation, sufficient
to pay all of the outstanding Notes and all other sums due and payable under
this Indenture by the Company; and (b) the Company has delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.  Notwithstanding the satisfaction and
discharge of this Indenture, the obligations of the Company to the Trustee
under Section 7.06 shall survive.


 


ARTICLE 4

PARTICULAR COVENANTS OF THE COMPANY


 


Section 4.01.  Payment of Principal and
Interest.  The Company
covenants and agrees that it will cause to be paid the principal (including the
Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid
interest on, each of the Notes at the places, at the respective times and in
the manner provided herein and in the Notes.


 


Section 4.02.  Maintenance of Office or
Agency.  The Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where the Notes may be surrendered for registration of transfer or exchange or
for presentation for payment or repurchase (“Paying Agent”)
or for conversion (“Conversion Agent”)
and where notices and demands to or upon the Company in respect of the Notes
and this Indenture may be served.  The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. 
If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office or the office or agency of the Trustee in the
Borough of Manhattan, The City of New York.


 


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


 


23

















 


will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any
such other office or agency.  The terms “Paying Agent” and “Conversion Agent”
include any such additional or other offices or agencies, as applicable.


 


The Company hereby initially designates the Trustee
as the Paying Agent, Note Registrar, Custodian and Conversion Agent and the
Corporate Trust Office and the office or agency of the Trustee in the Borough
of Manhattan, The City of New York, each shall be considered as one such office
or agency of the Company for each of the aforesaid purposes.


 


Section 4.03.  Appointments to Fill Vacancies
in Trustee’s Office.  The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.09, a Trustee,
so that there shall at all times be a Trustee hereunder.


 


Section 4.04.  Provisions as to Paying Agent.  (a) If the Company shall appoint a
Paying Agent other than the Trustee, the Company will cause such Paying Agent
to execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section 4.04:


 


(i)            that it will hold all sums held by
it as such agent for the payment of the principal (including the Fundamental
Change Repurchase Price, if applicable) of, and accrued and unpaid interest on,
the Notes in trust for the benefit of the Holders of the Notes;


 


(ii)           that it will give the Trustee prompt
notice of any failure by the Company to make any payment of the principal
(including the Fundamental Change Repurchase Price, if applicable) of, and
accrued and unpaid interest on, the Notes when the same shall be due and
payable; and


 


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


 


The Company shall, on or before each due date of
the principal (including the Fundamental Change Repurchase Price, if
applicable) of, or accrued and unpaid interest on, the Notes, deposit with the
Paying Agent a sum sufficient to pay such principal (including the Fundamental
Change Repurchase Price, if applicable) or accrued and unpaid interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of any failure to take such action; provided that
if such deposit is made on the due date, such deposit must be received by the
Paying Agent by 11:00 a.m., New York City time, on such date.


 


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


 


24

















 


Repurchase Price, if
applicable) of, or accrued and unpaid interest on, the Notes when the same
shall become due and payable.


 


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


 


(d)        Any money and shares of Common Stock
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal (including the Fundamental Change
Repurchase Price, if applicable) of, and accrued and unpaid interest on, any
Note and remaining unclaimed for two years after such principal (including the
Fundamental Change Repurchase Price, if applicable) or interest has become due
and payable shall be paid to the Company on request of the Company contained in
an Officers’ Certificate, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Note shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money
and shares of Common Stock, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in The
Borough of Manhattan, The City of New York, notice that such money and shares
of Common Stock remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money and shares of Common Stock then remaining will
be repaid or delivered to the Company.


 


Section 4.05.  Existence.  Subject to Article 11, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence.


 


Section 4.06.  Rule 144A Information
Requirement and Annual Reports. 
(a)  At any time the Company is not subject to Sections 13 or 15(d) of
the Exchange Act, the Company shall, so long as any of the Notes or any shares
of Common Stock issuable upon conversion thereof shall, at such time,
constitute “restricted securities” within the meaning of Rule 144(a)(3) under
the Securities Act, promptly provide to the Trustee and shall, upon written
request, provide to any Holder, beneficial owner or prospective purchaser of
such Notes or any shares of Common Stock issued upon conversion of such Notes,
the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act to facilitate the resale of such Notes or shares of Common
Stock pursuant to Rule 144A under the Securities Act.  The Company shall take such further action as
any Holder or beneficial owner of such Notes or such Common Stock may
reasonably request to the extent required from time to time to enable such
Holder or beneficial owner to sell such Notes or shares of Common Stock in
accordance with Rule 144A under the Securities Act, as such rule may
be amended from time to time.


 


25

















 


(b)        The Company shall file with the Trustee
within 15 days after the same are required to be filed with the Commission,
copies of any documents or reports that the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act
(giving effect to any grace period provided by Rule 12b-25 under the
Exchange Act).  Any such document or
report that the Company files with the Commission via the Commission’s EDGAR
system shall be deemed to be filed with the Trustee for purposes of this Section 4.06(b) at
the time such documents are filed via the EDGAR system.


 


(c)        Delivery of the reports and documents
described in subsection (b) above to the Trustee is for informational purposes
only, and the Trustee’s receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information
contained therein, including the Company’s compliance with any of its covenants
hereunder (as to which the Trustee is entitled to conclusively rely on an
Officers’ Certificate).


 


(d)        If, at any time during the six-month
period beginning on, and including, the date that is six months after the last
date of original issuance of the Notes, the Company fails to timely file any
document or report that it is required to file with the Commission pursuant to Section 13
or 15(d) of the Exchange Act, as applicable (after giving effect to all
applicable grace periods thereunder (provided that in addition to any such
applicable grace periods thereunder, the Company shall have 14 days, in the
aggregate, to cure all such missed filings) and other than reports on Form 8-K),
or the Notes are not otherwise freely tradable by Holders other than the
Company’s Affiliates or Persons that were Affiliates within the three
immediately preceding months (as a result of restrictions pursuant to U.S.
securities law or the terms of this Indenture or the Notes), the Company shall
pay Additional Interest on the Notes for each day during such period on which
the Notes are not freely tradable.  Such
Additional Interest shall accrue on the Notes at a rate equal to 0.25% per
annum of the principal amount of the Notes then outstanding.  As used in this Section 4.06(d),
documents or reports that the Company is required to “file” with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act does not include
documents or reports that the Company furnishes to the Commission pursuant to Section 13
or 15(d) of the Exchange Act.


 


(e)        If, and for so long as, the restrictive
legend on the Notes specified in Section 2.05(c) has not been
removed, the Notes are assigned a restricted CUSIP number or the Notes are not
otherwise freely tradable by Holders other than the Company’s Affiliates or
Persons that were Affiliates within the three immediately preceding months
(without restrictions pursuant to U.S. securities law or the terms of this
Indenture or the Notes) as of the 365th day after the last date of original
issuance of the Notes (regardless of whether the Company has complied with the
actions to remove the restrictive legend on any Notes represented by a Global
Note as set forth in Section 2.05(c)), the Company shall either (i) pay
Additional Interest on the principal amount of Notes then outstanding until the
restrictive legend on the Notes has been removed in accordance with Section 2.05(c),
the Notes are assigned an unrestricted CUSIP number and the Notes are otherwise
freely tradable as described above or (ii) designate an effective shelf registration
statement useable at such time for the resale of such Notes and any Common
Stock issuable upon conversion of the Notes. 
Each time such Additional Interest accrues, it shall accrue at a rate
initially equal to 0.25% per annum of the principal amount of Notes.  If, after such Additional Interest has
accrued for 90 days, the restrictive legend on the Notes specified in Section 2.05(c) has
not been removed, the Notes are still assigned a restricted CUSIP number or the
Notes are 


 


26

















 


not otherwise freely
tradable as described above, the Company shall pay Additional Interest on the
Notes at a rate equal to 0.50% per annum until the restrictive legend on the
Notes has been removed in accordance with Section 2.05(c), the Notes are
assigned an unrestricted CUSIP number and the Notes are otherwise freely
tradable as described above.


 


(f)        Additional Interest will be payable in
arrears on each Interest Payment Date following accrual in the same manner as
regular interest on the Notes.


 


(g)        The Additional Interest that is payable
in accordance with Section 4.06(d) or Section 4.06(e) shall
be in addition to, and not in lieu of, any Additional Interest that may be
payable as a result of the Company’s election pursuant to Section 6.03.


 


(h)        If Additional Interest is payable by the
Company pursuant to Section 4.06(d) or Section 4.06(e), the
Company shall deliver to the Trustee an Officers’ Certificate to that effect
stating (i) the amount of such Additional Interest that is payable and (ii) the
date on which such Additional Interest is payable.  Unless and until a Responsible Officer of the
Trustee receives at the Corporate Trust Office such a certificate, the Trustee
may assume without inquiry that no such Additional Interest is payable.  If the Company has paid Additional Interest
directly to the Persons entitled to it, the Company shall deliver to the
Trustee an Officers’ Certificate setting forth the particulars of such payment.


 


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


 


Section 4.08.  Compliance Certificate;
Statements as to Defaults. 
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,
2010) an Officers’ Certificate stating whether or not the signers thereof have
knowledge of any failure by the Company to comply with all conditions and
covenants then required to be performed under this Indenture and, if so,
specifying each such failure and the nature thereof.


 


In addition, the Company shall deliver to the
Trustee, as soon as possible, and in any event within 30 days after the Company
becomes aware of the occurrence of any Event of Default or Default, an Officers’
Certificate setting forth the details of such Event of Default or Default, its
status and the action that the Company proposes to take with respect thereto.


 


Section 4.09.  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.


 


27

















 


ARTICLE 5

LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE


 


Section 5.01.  Lists of Holders.  The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee, semi-annually, not more than
15 days after each March 1 and September 1 in each year beginning
with March 1, 2011, and at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such request (or
such lesser time as the Trustee may reasonably request in order to enable it to
timely provide any notice to be provided by it hereunder), a list in such form
as the Trustee may reasonably require of the names and addresses of the Holders
as of a date not more than 15 days (or such other date as the Trustee may
reasonably request in order to so provide any such notices) prior to the time
such information is furnished, except that no such list need be furnished so
long as the Trustee is acting as Note Registrar.


 


Section 5.02.  Preservation and Disclosure of
Lists.  The Trustee shall
preserve, in as current a form as is reasonably practicable, all information as
to the names and addresses of the Holders contained in the most recent list
furnished to it as provided in Section 5.01 or maintained by the Trustee
in its capacity as Note Registrar, if so acting.  The Trustee may destroy any list furnished to
it as provided in Section 5.01 upon receipt of a new list so furnished.


 


ARTICLE 6

DEFAULTS AND REMEDIES


 


Section 6.01.  Events of Default.  The following events shall be “Events of Default” with respect to the Notes:


 


(a)        default in any payment of interest on
any Note when due and payable, and the default continues for a period of 30
days;


 


(b)        default in the payment of principal of
any Note when due and payable on the Maturity Date, upon any required
repurchase in connection with a Fundamental Change, upon declaration of
acceleration or otherwise;


 


(c)        failure by the Company to comply with
its obligation to convert the Notes in accordance with this Indenture upon
exercise of a Holder’s conversion right, and such failure continues for a
period of five days or more;


 


(d)        failure by the Company to issue a
Fundamental Change Company Notice in accordance with Section 15.02(c) for
a period of five Business Days after such Fundamental Change Company Notice
becomes due or notice of a specified corporate event in accordance with Section 14.01(b)(ii) or
14.01(b)(iii), in each case when due;


 


(e)        failure by the Company to comply with
its obligations under Article 11;


 


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(f)        failure by the Company for 60 days after
written notice from the Trustee or the Holders of at least 25% in principal
amount of the Notes then outstanding has been received by the Company to comply
with any of its other agreements contained in the Notes or this Indenture;


 


(g)        default by the Company or any Subsidiary
of the Company with respect to any mortgage, agreement or other instrument
under which there is outstanding, or by which there is secured or evidenced,
any indebtedness for money borrowed in excess of $10 million in the aggregate
of the Company and/or any such Subsidiary, whether such indebtedness now exists
or shall hereafter be created (i) resulting in such indebtedness becoming
or being declared due and payable or (ii) constituting a failure to pay
the principal or interest of any such indebtedness when due and payable at its
stated maturity, upon required repurchase, upon declaration of acceleration or
otherwise; provided that no Event of Default shall
be deemed to occur if (x) in the case of clause (i), such acceleration
ceases or shall have been cured, waived, rescinded or annulled or such
indebtedness for money borrowed shall have been paid or otherwise discharged,
in each case, within 30 days after the date of such acceleration, or (y) in
the case of clause (ii), such defaulted payment shall have been made or the
obligation to make such defaulted payment shall have been waived or extended,
in each case, within 30 days of such failure to pay;


 


(h)        a final judgment for the payment of $10
million or more (excluding any amounts covered by insurance) rendered against
the Company or any Significant Subsidiary, which judgment is not discharged or
stayed within 60 days after (i) the date on which the right to appeal
thereof has expired if no such appeal has commenced, or (ii) the date on
which all rights to appeal have been extinguished;


 


(i)         the Company or any Significant
Subsidiary shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to the Company or any such
Significant Subsidiary or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of the Company or any
such Significant Subsidiary or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due; or


 


(j)         an involuntary case or other proceeding
shall be commenced against the Company or any Significant Subsidiary seeking
liquidation, reorganization or other relief with respect to the Company or such
Significant Subsidiary or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of the Company or
such Significant Subsidiary or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for
a period of 30 consecutive days.


 


Section 6.02.  Acceleration; Rescission
and Annulment.  In case one or
more Events of Default shall have occurred and be continuing (whatever the
reason for such Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body), then, and in each and every such case (other than an Event
of Default 


 


29

















 


specified in Section 6.01(i) or Section 6.01(j)),
unless the principal of all of the Notes shall have already become due and
payable, either the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding determined in accordance with Section 8.04,
by notice in writing to the Company (and to the Trustee if given by Holders),
may declare 100% of the principal of, and accrued and unpaid interest on, all
the Notes to be due and payable immediately, and upon any such declaration the
same shall become and shall automatically be immediately due and payable,
anything in this Indenture or in the Notes contained to the contrary
notwithstanding.  If an Event of Default
specified in Section 6.01(i) or Section 6.01(j) occurs, the
principal of, and accrued and unpaid interest on, all Notes shall be
automatically and immediately due and payable.


 


This provision, however, is subject to the
conditions that if, at any time after the principal of the Notes shall have
been so declared due and payable, and before any judgment or decree for the
payment of the monies due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum sufficient
to pay installments of accrued and unpaid interest upon all Notes and the
principal of any and all Notes that shall have become due otherwise than by
acceleration (with interest on overdue installments of accrued and unpaid
interest to the extent that payment of such interest is enforceable under
applicable law, and on such principal at the rate borne by the Notes at such
time) and amounts due to the Trustee pursuant to Section 7.06, and if (1) rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction and (2) any and all existing Events of Default under this
Indenture, other than the nonpayment of the principal of and accrued and unpaid
interest, if any, on Notes that shall have become due solely by such
acceleration, shall have been cured or waived pursuant to Section 6.09,
then and in every such case (except as provided in the immediately succeeding
sentence) the Holders of a majority in aggregate principal amount of the Notes
then outstanding, by written notice to the Company and to the Trustee, may
waive all Defaults or Events of Default with respect to the Notes and rescind
and annul such declaration and its consequences and such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture; but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent Default or Event of
Default, or shall impair any right consequent thereon.  Notwithstanding anything to the contrary
herein, no such waiver or rescission and annulment shall extend to or shall
affect any Default or Event of Default resulting from (i) the nonpayment
of the principal of, or accrued and unpaid interest on, any Notes, (ii) a
failure to repurchase any Notes when required or (iii) a failure to pay or
deliver, as the case may be, the consideration due upon conversion of the
Notes.


 


Section 6.03.  Additional Interest.  Notwithstanding anything in this Indenture or
in the Notes to the contrary, to the extent the Company elects, the sole remedy
for Event of Default relating to the Company’s failure to comply with its
obligations as set forth in Section 4.06(b) shall for the first 180
days after the occurrence of such an Event of Default consist exclusively of
the right to receive Additional Interest on the Notes at a rate equal to (i) 0.25%
per annum of the principal amount of the Notes outstanding for each day during
the period beginning on, and including, the date on which such an Event of
Default first occurs and ending on the earlier of (x) the date on which
such Event of Default is cured or validly waived or (y) the 90th day
immediately following, and including, the date on which such Event of Default
first occurred; and (ii) if such Event of Default has not been cured or
validly waived prior to the 91st day


 


30






 


 












 


immediately following, and including, the date on
which such Event of Default first occurred, 0.50% per annum of the principal
amount of the Notes outstanding for each day during the period beginning on,
and including, the 91st day immediately following and including the date on
which such Event of Default first occurred and ending on the earlier of (x) the
date on which such Event of Default is cured or validly waived or (y) the
180th day immediately following, and including, the date on which such Event of
Default first occurred; provided, however, that in no event shall Additional Interest accrue
under the terms of this Indenture (taking any Additional Interest payable
pursuant to this Section 6.03 together with any Additional Interest
payable pursuant to Section 4.06(d) or Section 4.06(e)) at an
annual rate in excess of 0.50% in the aggregate for any violation or Event of
Default caused by the Company’s failure to be current in respect of its
Exchange Act reporting obligations.  If
the Company elects to pay Additional Interest pursuant to this Section 6.03,
such Additional Interest shall be payable in the same manner and on the same
dates as regular interest on the Notes. 
On the 181st day after such Event of Default (if the Event of Default
relating to the Company’s failure to file is not cured or waived prior to such
181st day), the Notes will be subject to acceleration as provided in Section 6.02.  In the event the Company does not elect to
pay Additional Interest following an Event of Default in accordance with this Section 6.03,
the Notes shall be subject to acceleration as provided in Section 6.02.


 


In order to elect to pay Additional Interest as the
sole remedy during the first 180 days after the occurrence of any Event of
Default described in the immediately preceding paragraph, the Company must
notify all Holders of the Notes, the Trustee and the Paying Agent of such
election prior to the beginning of such 180-day period.  Upon the failure to timely give such notice,
the Notes shall be immediately subject to acceleration as provided in Section 6.02.


 


Section 6.04.  Payments of Notes on Default;
Suit Therefor.  If an Event of
Default described in clause (a) or (b) of Section 6.01 shall
have occurred, the Company shall, upon demand of the Trustee, pay to it, for
the benefit of the Holders of the Notes, the whole amount then due and payable
on the Notes for principal and interest, if any, with interest on any overdue
principal and interest, if any, at the rate borne by the Notes at such time,
and, in addition thereto, such further amount as shall be sufficient to cover
any amounts due to the Trustee under Section 7.06.  If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor upon
the Notes and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon the Notes, wherever situated.


 


In the event there shall be pending proceedings for
the bankruptcy or for the reorganization of the Company or any other obligor on
the Notes under title 11 of the United States Code, or any other applicable
law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Company or such other obligor, the
property of the Company or such other obligor, or in the event of any other
judicial proceedings relative to the Company or such other obligor upon the
Notes, or to the creditors or property of the Company or such other obligor,
the Trustee, irrespective of whether the principal of the Notes shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the 


 


31

















 


Trustee shall have made any demand pursuant to the
provisions of this Section 6.04, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal and accrued and unpaid interest, if
any, in respect of the Notes, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents and to take such other
actions as it may deem 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) and of the
Holders allowed in such judicial proceedings relative to the Company or any
other obligor on the Notes, its or their creditors, or its or their property,
and to collect and receive any monies or other property payable or deliverable
on any such claims, and to distribute the same after the deduction of any
amounts due the Trustee under Section 7.06; and any receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, custodian or similar
official is hereby authorized by each of the Holders to make such payments to
the Trustee, as administrative expenses, and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for reasonable compensation, expenses, advances
and disbursements, including agents and counsel fees, and including any other
amounts due to the Trustee under Section 7.06, incurred by it up to the
date of such distribution.  To the extent
that such payment of reasonable compensation, expenses, advances and
disbursements out of the estate in any such proceedings shall be denied for any
reason, payment of the same shall be secured by a lien on, and shall be paid
out of, any and all distributions, dividends, monies, securities and other
property that the Holders of the Notes may be entitled to receive in such
proceedings, whether in liquidation or under any plan of reorganization or
arrangement or otherwise.


 


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 Holder 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.


 


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


 


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


 


In case the Trustee shall have proceeded to enforce
any right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such waiver or rescission and annulment or
for any other reason or shall have been determined adversely to the Trustee,
then and in every such case the Company, the Holders, and the Trustee shall,
subject to any determination in such proceeding, be restored respectively to their
several positions and 


 


32

















 


rights hereunder, and all rights, remedies and
powers of the Company, the Holders, and the Trustee shall continue as though no
such proceeding had been instituted.


 


Section 6.05.  Application of Monies
Collected by Trustee.  Any
monies collected by the Trustee pursuant to this Article 6 with respect to
the Notes shall be applied in the order following, at the date or dates fixed
by the Trustee for the distribution of such monies, upon presentation of the
several Notes, and stamping thereon the payment, if only partially paid, and
upon surrender thereof, if fully paid:


 


First, to the payment of all amounts due the
Trustee under Section 7.06;


 


Second, in case the principal of the outstanding
Notes shall not have become due and be unpaid, to the payment of interest on,
and any cash due upon conversion of, the Notes in default in the order of the
date due of the payments of such interest and cash due upon conversion, as the
case may be, with interest (to the extent that such interest has been collected
by the Trustee) upon such overdue payments at the rate borne by the Notes at
such time, such payments to be made ratably to the Persons entitled thereto;


 


Third, in case the principal of the outstanding
Notes shall have become due, by declaration or otherwise, and be unpaid to the
payment of the whole amount (including, if applicable, the payment of the
Fundamental Change Repurchase Price and any cash due upon conversion) then
owing and unpaid upon the Notes for principal and interest, if any, with
interest on the overdue principal and, to the extent that such interest has
been collected by the Trustee, upon overdue installments of interest at the
rate borne by the Notes at such time, and in case such monies shall be
insufficient to pay in full the whole amounts so due and unpaid upon the Notes,
then to the payment of such principal (including, if applicable, the
Fundamental Change Repurchase Price and the cash due upon conversion) and interest
without preference or priority of principal over interest, or of interest over
principal or of any installment of interest over any other installment of
interest, or of any Note over any other Note, ratably to the aggregate of such
principal (including, if applicable, the Fundamental Change Repurchase Price
and any cash due upon conversion) and accrued and unpaid interest; and


 


Fourth, to the payment of the remainder, if any, to
the Company.


 


Section 6.06.  Proceedings by Holders.  Except to enforce the right to receive
payment of principal (including, if applicable, the Fundamental Change
Repurchase Price) or interest when due, or the right to receive payment or
delivery of the consideration due upon conversion, no Holder of any Note shall
have any right by virtue of or by availing of any provision of this Indenture
to institute any suit, action or proceeding in equity or at law upon or under
or with respect to this Indenture, or for the appointment of a receiver,
trustee, liquidator, custodian or other similar official, or for any other
remedy hereunder, unless:


 


(a)        such Holder previously shall have given
to the Trustee written notice of an Event of Default and of the continuance
thereof, as hereinbefore provided;


 


33

















 


(b)        Holders of at least 25% in aggregate
principal amount of the Notes then outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name
as Trustee hereunder;


 


(c)        such Holders shall have offered to the
Trustee such security or indemnity reasonably satisfactory to it against any
costs, expenses and liabilities to be incurred therein or thereby;


 


(d)        the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding; and


 


(e)        no direction that, in the opinion of the
Trustee, is inconsistent with such written request shall have been given to the
Trustee by the Holders of a majority in principal amount of the Notes
outstanding within such 60-day period pursuant to Section 6.09, it being
understood and intended, and being expressly covenanted by the taker and Holder
of every Note with every other taker and Holder and the Trustee that no one or
more Holders shall have any right in any manner whatever by virtue of or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holder, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders (except as otherwise provided herein).  For the protection and enforcement of this Section 6.06,
each and every Holder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.


 


Notwithstanding any other provision of this
Indenture and any provision of any Note, the right of any Holder to receive
payment or delivery, as the case may be, of (x) the principal (including
the Fundamental Change Repurchase Price, if applicable) of, (y) accrued
and unpaid interest on, and (z) the consideration due upon conversion of,
such Note, on or after the respective due dates expressed or provided for in
such Note or in this Indenture, or to institute suit for the enforcement of any
such payment or deliver, as the case may be, on or after such respective dates
against the Company shall not be impaired or affected without the consent of
such Holder.


 


Section 6.07.  Proceedings by Trustee.  In case of an Event of Default the Trustee
may in its discretion proceed to protect and enforce the rights vested in it by
this Indenture by such appropriate judicial proceedings as are necessary to
protect and enforce any of such rights, either by suit in equity or by action
at law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.


 


Section 6.08.  Remedies Cumulative and
Continuing.  Except as
provided in the last paragraph of Section 2.06, all powers and remedies
given by this Article 6 to the Trustee or to the Holders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any thereof
or of any other powers and remedies available to the Trustee or the Holders of
the Notes, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants 


 


34

















 


and agreements contained in this Indenture, and no
delay or omission of the Trustee or of any Holder of any of the Notes to
exercise any right or power accruing upon any Default or Event of Default shall
impair any such right or power, or shall be construed to be a waiver of any
such Default or Event of Default or any acquiescence therein; and, subject to the
provisions of Section 6.06, every power and remedy given by this Article 6
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the Holders.


 


Section 6.09.  Direction of Proceedings and
Waiver of Defaults by Majority of Holders.  The Holders of a majority in aggregate
principal amount of the Notes at the time outstanding determined in accordance
with Section 8.04 shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to Notes; provided, however, that (a) such
direction shall not be in conflict with any rule of law or with this Indenture,
and (b) the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction. 
The Trustee may refuse to follow any direction that it determines is
unduly prejudicial to the rights of any other Holder or that would involve the
Trustee in personal liability.  The
Holders of a majority in aggregate principal amount of the Notes at the time
outstanding determined in accordance with Section 8.04 may on behalf of
the Holders of all of the Notes waive any past Default or Event of Default
hereunder and its consequences except (i) a default in the payment of
accrued and unpaid interest, if any, on, or the principal (including any
Fundamental Change Repurchase Price) of, the Notes when due that has not been
cured pursuant to the provisions of Section 6.01, (ii) a failure by
the Company to the consideration due upon conversion of the Notes or (iii) a
default in respect of a covenant or provision hereof which under Article 10
cannot be modified or amended without the consent of each Holder of an
outstanding Note affected.  Upon any such
waiver the Company, the Trustee and the Holders of the Notes shall be restored
to their former positions and rights hereunder; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereon.  Whenever any Default
or Event of Default hereunder shall have been waived as permitted by this Section 6.09,
said Default or Event of Default shall for all purposes of the Notes and this
Indenture be deemed to have been cured and to be not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.


 


Section 6.10.  Notice of Defaults.  The Trustee shall, within 90 days after the
occurrence and continuance of a Default of which a Responsible Officer has
actual knowledge, mail to all Holders as the names and addresses of such
Holders appear upon the Note Register, notice of all Defaults known to a
Responsible Officer, unless such Defaults shall have been cured or waived
before the giving of such notice; provided that,
except in the case of a Default in the payment of the principal of (including
the Fundamental Change Repurchase Price, if applicable), or accrued and unpaid
interest on, any of the Notes or a Default in the payment or delivery of the
consideration due upon conversion, the Trustee shall be protected in
withholding such notice if and so long as a committee of Responsible Officers
of the Trustee in good faith determine that the withholding of such notice is
in the interests of the Holders.


 


Section 6.11.  Undertaking to Pay Costs.  All parties to this Indenture agree, and each
Holder of any Note by its acceptance thereof shall be deemed to have agreed,
that any court may, 


 


35

















 


in its discretion, require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys’ fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; provided that
the provisions of this Section 6.11 (to the extent permitted by law) shall
not apply to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Notes at the time outstanding determined in accordance
with Section 8.04, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or accrued and unpaid interest,
if any, on any Note (including, but not limited to, the Fundamental Change
Repurchase Price with respect to the Notes being repurchased as provided in
this Indenture) on or after the due date expressed or provided for in such Note
or to any suit for the enforcement of the right to convert any Note in
accordance with the provisions of Article 14.


 


ARTICLE 7

CONCERNING THE TRUSTEE


 


Section 7.01.  Duties and Responsibilities of
Trustee.  The Trustee, prior
to the occurrence of an Event of Default and after the curing or waiver of all
Events of Default that may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture.  In case an Event of Default has occurred that
has not been cured or waived the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs; provided
that if an Event of Default occurs and is continuing, the Trustee will be under
no obligation to exercise any of the rights or powers under this Indenture at
the request or direction of any of the Holders unless such Holders have offered
to the Trustee reasonable indemnity or security satisfactory to the Trustee
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction.


 


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


 


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


 


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


 


36

















 


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


 


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


 


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


 


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


 


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


 


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


 


(g)        in the absence of written investment
direction from the Company, all cash received by the Trustee shall be placed in
a non-interest bearing trust account, and in no event shall the Trustee be
liable for the selection of investments or for investment losses incurred
thereon or for losses incurred as a result of the liquidation of any such
investment prior to its maturity date or the failure of the party directing
such investments prior to its maturity date or the failure of the party
directing such investment to provide timely written investment direction, and
the Trustee shall have no obligation to invest or reinvest any amounts held
hereunder in the absence of such written investment direction from the Company;
and


 


(h)        in the event that the Trustee is also
acting as Custodian, Note Registrar, Paying Agent, Conversion Agent, Bid
Solicitation Agent or transfer agent hereunder, the rights and protections
afforded to the Trustee pursuant to this Article 7 shall also be afforded
to such 


 


37

















 


Custodian, Note
Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent or transfer
agent.


 


None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.


 


Section 7.02.  Reliance on Documents,
Opinions, Rights of the Trustee. 
Except as otherwise provided in Section 7.01:


 


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


 


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


 


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


 


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


 


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


 


(f)        the permissive rights of the Trustee
enumerated herein shall not be construed as duties.


 


(g)        In no event shall the Trustee be liable
for any consequential loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Trustee has been advised 


 


38

















 


of the likelihood of such
loss or damage and regardless of the form of action other than any such loss or
damage caused by the Trustee’s willful misconduct or gross negligence.


 


(h)        The Trustee shall not be charged with
knowledge of any Default or Event of Default with respect to the Notes, unless
written notice of such Default or Event of Default shall have been received by
a Responsible Officer of the Trustee by the Company or by any Holder of the
Notes and such notice references the Notes and this Indenture.


 


(i)         The Trustee shall have no obligation or
duty to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Notes other than to require delivery of
such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.


 


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


 


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


 


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


 


Section 7.06.  Compensation and Expenses of
Trustee.  The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation for all services rendered by it
hereunder in any capacity (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) as mutually
agreed to in writing between the Trustee and the Company, and the Company will
pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the Trustee in
accordance with any of the provisions of this Indenture in any capacity thereunder
(including the reasonable compensation and the expenses and disbursements of
its agents and counsel and of all Persons not regularly in its employ) except
any such expense, disbursement or advance as shall have been caused by its 


 


39

















 


gross negligence, willful misconduct or bad
faith.  The Company also covenants to
indemnify the Trustee in any capacity under this Indenture and any other
document or transaction entered into in connection herewith and its agents and
any authenticating agent for, and to hold them harmless against, any loss,
claim, damage, liability or expense incurred without gross negligence, willful
misconduct or bad faith on the part of the Trustee, its officers, directors,
agents or employees, or such agent or authenticating agent, as the case may be,
and arising out of or in connection with the acceptance or administration of
this trust or in any other capacity hereunder, including the costs and expenses
of defending themselves against any claim of liability in the premises.  The obligations of the Company under this Section 7.06
to compensate or indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall be secured by a senior claim to
which the Notes are hereby made subordinate on all money or property held or
collected by the Trustee, except, subject to the effect of Section 6.05,
funds held in trust herewith for the benefit of the Holders of particular
Notes.  The Trustee’s right to receive
payment of any amounts due under this Section 7.06 shall not be
subordinate to any other liability or indebtedness of the Company.  The obligation of the Company under this Section 7.06
shall survive the satisfaction and discharge of this Indenture and the earlier
resignation or removal or the Trustee. 
The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.  The indemnification provided in this Section 7.06
shall extend to the officers, directors, agents and employees of the Trustee.


 


Without prejudice to any other rights available to
the Trustee under applicable law, when the Trustee and its agents and any
authenticating agent incur expenses or render services after an Event of
Default specified in Section 6.01(i) or Section 6.01(j) occurs,
the expenses and the compensation for the services are intended to constitute
expenses of administration under any bankruptcy, insolvency or similar laws.


 


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


 


Section 7.08.  Eligibility of Trustee.  There shall at all times be a Trustee
hereunder which shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least
$50,000,000.  If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of any supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published.  If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.


 


40






 












 


Section 7.09.  Conflicting Interests of the
Trustee.  If the Trustee has
or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture.


 


Section 7.10.  Resignation or Removal of
Trustee.  (a) The Trustee
may at any time resign by giving written notice of such resignation to the
Company and by mailing notice thereof to the Holders at their addresses as they
shall appear on the Note Register.  Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee.  If no successor trustee shall have been so
appointed and have accepted appointment within 60 days after the mailing of
such notice of resignation to the Holders, the resigning Trustee may, upon ten
Business Days’ notice to the Company and the Holders, petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Holder who has been a bona fide holder of a Note or Notes for at least six
months may, subject to the provisions of Section 6.11, on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee.  Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.


 


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


 


(i)      the Trustee shall fail to comply with Section 7.09
after written request thereof by the Company or by any Holder who has been a
bona fide Holder of a Note or Notes for at least six months; or


 


(ii)     the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.08 and shall fail to resign
after written request therefor by the Company or by any such Holder, or


 


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


 


then, in either case, the Company may by a Board
Resolution remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the Trustee so removed and one copy
to the successor trustee, or, subject to the provisions of Section 6.11,
any Holder who has been a bona fide holder of a Note or Notes for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee.  Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.


 


(c)           The Holders of a majority in
aggregate principal amount of the Notes at the time outstanding, as determined
in accordance with Section 8.04, may at any time remove the Trustee and
nominate a successor trustee that shall be deemed appointed as successor
trustee unless 


 


41

















 


within ten days after
notice to the Company of such nomination the Company objects thereto, in which
case the Trustee so removed or any Holder, upon the terms and conditions and
otherwise as in Section 7.10(a) provided, may petition any court of
competent jurisdiction for an appointment of a successor trustee.


 


(d)           Any resignation or removal of the Trustee
and appointment of a successor trustee pursuant to any of the provisions of
this Section 7.09 shall become effective upon acceptance of appointment by
the successor trustee as provided in Section 7.11.


 


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


 


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


 


Upon acceptance of appointment by a successor
trustee as provided in this Section 7.11, each of the Company and the
successor trustee, at the written direction and at the expense of the Company
shall mail or cause to be mailed notice of the succession of such trustee
hereunder to the Holders at their addresses as they shall appear on the Note
Register.  If the Company fails to mail
such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Company.


 


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


 


42

















 


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


 


Section 7.13.  Trustee’s Application for
Instructions from the Company. 
Any application by the Trustee for written instructions from the Company
(other than with regard to any action proposed to be taken or omitted to be
taken by the Trustee that affects the rights of the Holders of the Notes under
this Indenture) may, at the option of the Trustee, set forth in writing any
action proposed to be taken or omitted by the Trustee under this Indenture and
the date on and/or after which such action shall be taken or such omission
shall be effective.  The Trustee shall
not be liable for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any officer that the Company has indicated to the Trustee
should receive such application actually receives such application, unless any
such officer shall have consented in writing to any earlier date), unless,
prior to taking any such action (or the effective date in the case of any
omission), the Trustee shall have received written instructions in accordance with
this Indenture in response to such application specifying the action to be
taken or omitted.


 


ARTICLE 8

CONCERNING THE HOLDERS


 


Section 8.01.  Action by Holders.  Whenever in this Indenture it is provided
that the Holders of a specified percentage in aggregate principal amount of the
Notes may take any action (including the making of any demand or request, the
giving of any notice, consent or waiver or the taking of any other action), the
fact that at the time of taking any such action, the Holders of such specified
percentage have joined therein may be evidenced (a) by any instrument or
any number of instruments of similar tenor executed by Holders in person or by
agent or proxy appointed in writing, or (b) by the record of the Holders
voting in favor thereof at any meeting of Holders duly called and held in
accordance with the provisions of Article 9, or (c) by a combination
of such instrument or instruments and any such record of such a meeting of
Holders.  Whenever the Company or the
Trustee solicits the taking of any action by the Holders of the Notes, the
Company or the Trustee may fix, but shall not be required to, in advance of
such solicitation, a date as the record date for determining Holders entitled
to take such action.  The record date if
one is selected shall be not more than fifteen days prior to the date of
commencement of solicitation of such action.


 


43

















 


Section 8.02.  Proof of Execution by Holders.  Subject to the provisions of Section 7.01,
Section 7.02 and Section 9.05, proof of the execution of any
instrument by a Holder or its agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed
by the Trustee or in such manner as shall be satisfactory to the Trustee.  The holding of Notes shall be proved by the
Note Register or by a certificate of the Note Registrar.  The record of any Holders’ meeting shall be
proved in the manner provided in Section 9.06.


 


Section 8.03.  Who Are Deemed Absolute
Owners.  The Company, the
Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and
any Note Registrar may deem the Person in whose name a Note shall be registered
upon the Note Register to be, and may treat it as, the absolute owner of such
Note (whether or not such Note shall be overdue and notwithstanding any
notation of ownership or other writing thereon made by any Person other than
the Company or any Note Registrar) for the purpose of receiving payment of or
on account of the principal of and (subject to Section 2.03) accrued and
unpaid interest on such Note, for conversion of such Note and for all other
purposes; and neither the Company nor the Trustee nor any Paying Agent nor any
Conversion Agent nor any Note Registrar shall be affected by any notice to the
contrary.  All such payments so made to
any Holder for the time being, or upon its order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for monies payable upon any such Note.  Notwithstanding anything to the contrary in
this Indenture or the Notes following an Event of Default, any Holder of a
beneficial interest in a Global Note may directly enforce against the Company,
without the consent, solicitation, proxy, authorization or any other action of
the Depositary or any other Person, such Holder’s right to exchange such
beneficial interest for a Note in certificated form in accordance with the
provisions of this Indenture.


 


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


 


Section 8.05.  Revocation of Consents; Future
Holders Bound.  At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01,
of the taking of any action 


 


44

















 


by the Holders of the percentage in aggregate
principal amount of the Notes specified in this Indenture in connection with
such action, any Holder of a Note that is shown by the evidence to be included
in the Notes the Holders of which have consented to such action may, by filing
written notice with the Trustee at its Corporate Trust Office and upon proof of
holding as provided in Section 8.02, revoke such action so far as concerns
such Note.  Except as aforesaid, any such
action taken by the Holder of any Note shall be conclusive and binding upon
such Holder and upon all future Holders and owners of such Note and of any
Notes issued in exchange or substitution therefor or upon registration of
transfer thereof, irrespective of whether any notation in regard thereto is
made upon such Note or any Note issued in exchange or substitution therefor or
upon registration of transfer thereof.


 


ARTICLE 9

HOLDERS’ MEETINGS


 


Section 9.01.  Purpose of Meetings.  A meeting of Holders may be called at any
time and from time to time pursuant to the provisions of this Article 9
for any of the following purposes:


 


(a)        to give any notice to the Company or to
the Trustee or to give any directions to the Trustee permitted under this
Indenture, or to consent to the waiving of any Default or Event of Default
hereunder and its consequences, or to take any other action authorized to be
taken by Holders pursuant to any of the provisions of Article 6;


 


(b)        to remove the Trustee and nominate a
successor trustee pursuant to the provisions of Article 7;


 


(c)        to consent to the execution of an
indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02;
or


 


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


 


Section 9.02.  Call of Meetings by Trustee.  The Trustee may at any time call a meeting of
Holders to take any action specified in Section 9.01, to be held at such
time and at such place as the Trustee shall determine.  Notice of every meeting of the Holders,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting and the establishment of any record
date pursuant to Section 8.01, shall be mailed to Holders of such Notes at
their addresses as they shall appear on the Note Register.  Such notice shall also be mailed to the
Company.  Such notices shall be mailed
not less than twenty nor more than ninety days prior to the date fixed for the
meeting.


 


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


 


45

















 


Section 9.03.  Call of Meetings by Company or
Holders.  In case at any time
the Company, pursuant to a Board Resolution, or the Holders of at least 10% in
aggregate principal amount of the Notes then outstanding, shall have requested
the Trustee to call a meeting of Holders, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Holders may determine the
time and the place for such meeting and may call such meeting to take any
action authorized in Section 9.01, by mailing notice thereof as provided
in Section 9.02.


 


Section 9.04.  Qualifications for Voting.  To be entitled to vote at any meeting of
Holders a Person shall (a) be a Holder of one or more Notes on the record
date pertaining to such meeting or (b) be a Person appointed by an
instrument in writing as proxy by a Holder of one or more Notes on the record
date pertaining to such meeting.  The
only Persons who shall be entitled to be present or to speak at any meeting of
Holders shall be the Persons entitled to vote at such meeting and their counsel
and any representatives of the Trustee and its counsel and any representatives
of the Company and its counsel.


 


Section 9.05.  Regulations.  Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders, in regard to proof of the holding of
Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.


 


The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders as provided in Section 9.03, in which
case the Company or the Holders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. 
A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Holders of a majority in principal amount of the Notes
represented at the meeting and entitled to vote at the meeting.


 


Subject to the provisions of Section 8.04, at
any meeting of Holders each Holder or proxyholder shall be entitled to one vote
for each $1,000 principal amount of Notes held or represented by him; provided, however, that
no vote shall be cast or counted at any meeting in respect of any Note
challenged as not outstanding and ruled by the chairman of the meeting to be
not outstanding.  The chairman of the
meeting shall have no right to vote other than by virtue of Notes held by it or
instruments in writing as aforesaid duly designating it as the proxy to vote on
behalf of other Holders.  Any meeting of
Holders duly called pursuant to the provisions of Section 9.02 or Section 9.03
may be adjourned from time to time by the Holders of a majority of the
aggregate principal amount of Notes represented at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.


 


Section 9.06.  Voting.  The vote upon any resolution submitted to any
meeting of Holders shall be by written ballot on which shall be subscribed the
signatures of the Holders or of their representatives by proxy and the
outstanding principal amount of the Notes held or represented by them.  The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file 


 


46

















 


with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting.  A record in duplicate of the proceedings of
each meeting of Holders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
Persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was mailed as provided in Section 9.02.  The record shall show the principal amount of
the Notes voting in favor of or against any resolution.  The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one
of the duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting.


 


Any record so signed and verified shall be
conclusive evidence of the matters therein stated.


 


Section 9.07.  No Delay of Rights by Meeting.  Nothing contained in this Article 9
shall be deemed or construed to authorize or permit, by reason of any call of a
meeting of Holders or any rights expressly or impliedly conferred hereunder to
make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Holders under any of the
provisions of this Indenture or of the Notes.


 


ARTICLE 10

SUPPLEMENTAL INDENTURES


 


Section 10.01.  Supplemental Indentures
Without Consent of Holders. 
The Company, when authorized by the resolutions of the Board of
Directors and the Trustee, at the Company’s expense, may from time to time and
at any time enter into an indenture or indentures supplemental hereto for one
or more of the following purposes:


 


(a)        to cure any ambiguity, mistake, omission,
defect or inconsistency;


 


(b)        to provide for the assumption by a
Successor Company of the obligations of the Company under this Indenture
pursuant to Article 11;


 


(c)        to add guarantees with respect to the
Notes;


 


(d)        to secure the Notes;


 


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


 


(f)         to make any change that does not
adversely affect the rights of any Holder; or


 


(g)        to conform the provisions of this
Indenture or the Notes to the “Description of notes” section of the Offering
Memorandum.


 


47

















 


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


 


Any supplemental indenture authorized by the
provisions of this Section 10.01 may be executed by the Company and the
Trustee without the consent of the Holders of any of the Notes at the time
outstanding, notwithstanding any of the provisions of Section 10.02.


 


Section 10.02.  Supplemental Indentures with
Consent of Holders.  With the
consent (evidenced as provided in Article 8) of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding
(determined in accordance with Article 8 and including, without
limitation, consents obtained in connection with a repurchase of, or tender
offer or exchange offer for, Notes), the Company, when authorized by the
resolutions of the Board of Directors and the Trustee, at the Company’s
expense, may from time to time and at any time enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or any supplemental indenture or of modifying in any manner the rights of the
Holders; provided, however,
that, without the consent of each Holder of an outstanding Note affected, no
such supplemental indenture shall:


 


(a)        reduce the principal amount of Notes
whose Holders must consent to an amendment;


 


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


 


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


 


(d)        make any change that adversely affects
the conversion rights of any Notes;


 


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


 


(f)         make any Note payable in money other
than that stated in the Note;


 


(g)        change the ranking of the Notes;


 


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


 


(i)         make any change in this Article 10
that requires each Holder’s consent or in the waiver provisions in Section 6.01
or Section 6.09.


 


Upon the written request of the Company, and upon
the filing with the Trustee of evidence of the consent of Holders as aforesaid
and subject to Section 10.05, the Trustee shall 


 


48

















 


join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.


 


Holders do not need under this Section 10.02
to approve the particular form of any proposed supplemental indenture.  It shall be sufficient if such Holders
approve the substance thereof.  After any
such supplemental indenture becomes effective, the Company shall mail to the
Holders a notice briefly describing such supplemental indenture. However, the
failure to give such notice to all the Holders, or any defect in the notice,
will not impair or affect the validity of the supplemental indenture.


 


Section 10.03.  Effect of Supplemental
Indentures.  Upon the
execution of any supplemental indenture pursuant to the provisions of this Article 10,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitation of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.


 


Section 10.04.  Notation on Notes.  Notes authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this Article 10
may, at the Company’s expense, bear a notation in form approved by the Trustee
as to any matter provided for in such supplemental indenture.  If the Company or the Trustee shall so
determine, new Notes so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this Indenture contained in
any such supplemental indenture may, at the Company’s expense, be prepared and
executed by the Company, authenticated by the Trustee (or an authenticating
agent duly appointed by the Trustee pursuant to Section 17.10) and
delivered in exchange for the Notes then outstanding, upon surrender of such
Notes then outstanding.


 


Section 10.05.  Evidence of Compliance of
Supplemental Indenture to Be Furnished Trustee.  In addition to the documents required by Section 17.05,
the Trustee shall receive an Officers’ Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article 10 and is permitted or
authorized by the Indenture.


 


ARTICLE 11

CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE


 


Section 11.01.  Company May Consolidate, Etc.
on Certain Terms.  Subject to
the provisions of Section 11.02, the Company shall not consolidate with,
merge with or into, or sell, convey, transfer or lease all or substantially all
of its properties and assets to another Person, unless:


 


49

















 


(a)        the resulting, surviving or transferee
Person (the “Successor Company”), if not the
Company, shall be a corporation organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia, and
the Successor Company (if not the Company) shall expressly assume, by
supplemental indenture all of the obligations of the Company under the Notes
and this Indenture; and


 


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


 


For purposes of this Section 11.01, the sale,
conveyance, transfer or lease of all or substantially all of the properties and
assets of one or more Subsidiaries of the Company to another Person, which
properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the
Company on a consolidated basis, shall be deemed to be the sale, conveyance,
transfer or lease of all or substantially all of the properties and assets of
the Company to another Person.


 


Section 11.02.  Successor Corporation to Be
Substituted.  In case of any
such consolidation, merger, sale, conveyance, transfer or lease and upon the
assumption by the Successor Company, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due
and punctual payment of the principal of and accrued and unpaid interest on all
of the Notes, the due and punctual delivery or payment, as the case may be, of
any consideration due upon conversion of the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Company, such Successor Company shall succeed to and be
substituted for the Company, with the same effect as if it had been named
herein as the party of the first part, except in the case of a lease of all or
substantially all of the Company’s properties and assets.  Such Successor Company thereupon may cause to
be signed, and may issue either in its own name or in the name of the Company
any or all of the Notes issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee; and, upon the order of
such Successor Company instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver, or cause to be authenticated and delivered, any
Notes that previously shall have been signed and delivered by the Officers of
the Company to the Trustee for authentication, and any Notes that such
Successor Company thereafter shall cause to be signed and delivered to the Trustee
for that purpose.  All the Notes so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Notes theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Notes had been issued at the date
of the execution hereof.  In the event of
any such consolidation, merger, sale, conveyance or transfer (but not in the
case of a lease), upon compliance with this Article 11, the Person named
as the “Company” in the first paragraph of this Indenture (or any successor
that shall thereafter have become such in the manner prescribed in this Article 11)
may be dissolved, wound up and liquidated at any time thereafter and, except in
the case of a lease, such Person shall be released from its liabilities as
obligor and maker of the Notes and from its obligations under this Indenture.


 


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


 


50
















 


Section 11.03.  Opinion of Counsel to Be Given
to Trustee.  No consolidation,
merger, sale, conveyance, transfer or lease shall be effective unless the
Trustee shall receive an Officers’ Certificate and an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale, conveyance,
transfer or lease and any such assumption and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
complies with the provisions of this Article 11.


 


ARTICLE 12

IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


 


Section 12.01.  Indenture and Notes Solely
Corporate Obligations.  No
recourse for the payment of the principal of or accrued and unpaid interest on
any Note, nor for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
in this Indenture or in any supplemental indenture or in any Note, nor because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, employee, agent, Officer or director or
Subsidiary, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Notes.


 


ARTICLE 13

[INTENTIONALLY OMITTED]


 


ARTICLE 14

CONVERSION OF NOTES


 


Section 14.01.  Conversion Privilege.  (a) Subject to and upon compliance with
the provisions of this Article 14, each Holder of a Note shall have the
right, at such Holder’s option, to convert all or any portion (if the portion
to be converted is $1,000 principal amount or an integral multiple thereof) of
such Note (i) subject to satisfaction of the conditions described in
subsections (i)-(iv) of Section 14.01(b), at any time prior to the
close of business on the Business Day immediately preceding June 15, 2015
under the circumstances and during the periods set forth in Section 14.01(b),
and (ii) irrespective of the conditions described in subsections (i)-(iv) of
Section 14.01(b), on or after June 15, 2015 and prior to the close of
business on the second Scheduled Trading Day immediately preceding the Maturity
Date, in each case, at an initial conversion rate of 80.0000 shares of Common
Stock (subject to adjustment as provided in Section 14.03 and Section 14.04,
the “Conversion Rate”) per $1,000 principal
amount of Notes (subject to the settlement provisions of Section 14.02,
the “Conversion Obligation”).


 


(b)           (i)(A) Prior to the close of
business on the Business Day immediately preceding June 15, 2015, the
Notes may be surrendered for conversion during the five 


 


51

















 


Business
Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000
principal amount of Notes, as determined following a request by a Holder of
Notes in accordance with this subsection (b)(i)(A), for each Trading Day of the
Measurement Period was less than 98% of the product of the Last Reported Sale
Price of the Common Stock and the Conversion Rate on each such Trading
Day.  The Trading Price per $1,000
principal amount of Notes shall be determined by the Bid Solicitation Agent
pursuant to this subsection (b)(i)(A) and the definition of Trading Price
set forth in this Indenture.  The Company
shall provide written notice to the Bid Solicitation Agent of the three
independent nationally recognized securities dealers selected by the Company
pursuant to the definition of Trading Price, along with appropriate contact
information for each.  The Bid
Solicitation Agent shall have no obligation to determine the Trading Price of
the Notes unless the Company has requested such determination, and the Company
shall have no obligation to make such request unless a Holder provides the
Company with reasonable evidence that the Trading Price per $1,000 principal
amount of Notes would be less than 98% of the product of the Last Reported Sale
Price of the Common Stock and the Conversion Rate, at which time the Company
shall instruct the Bid Solicitation Agent in writing to determine the Trading
Price per $1,000 principal amount of Notes beginning on the next Trading Day
and on each successive Trading Day until the Trading Price per $1,000 principal
amount of Notes is greater than or equal to 98% of the product of the Last
Reported Sale Price of the Common Stock and the Conversion Rate.  If the Company does not so instruct the Bid
Solicitation Agent to determine the Trading Price per $1,000 principal amount
of Notes when required as provided in the preceding sentence, or if the Company
instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation
Agent fails to obtain such bids when required, then, in either case, the
Trading Price per $1,000 principal amount of Notes shall be deemed to be less
than 98% of the product of the Last Reported Sale Price of the Common Stock and
the Conversion Rate on each day of such failure.  If the Trading Price condition set forth
above has been met, the Company shall so notify the Holders, the Trustee and
the Conversion Agent (if other than the Trustee).  If, at any time after the Trading Price
condition set forth above has been met, the Trading Price per $1,000 principal
amount of Notes is greater than or equal to 98% of the product of the Last
Reported Sale Price of the Common Stock and the applicable Conversion Rate, the
Company shall so notify the Holders of the Notes, the Trustee and the
Conversion Agent (if other than the Trustee).


 


(B)          In connection with any conversion of
Notes that occurs both prior to March 15, 2015 and at a time when the
Notes are convertible pursuant to subsection (b)(i)(A) of this Section 14.01,
notwithstanding anything to the contrary herein, the Company may, at its
option, satisfy the resulting Conversion Obligation through Physical
Settlement, Cash Settlement or Combination Settlement, each as described in Section 14.02.


 


(ii)           If, prior to the close of business on
the Business Day immediately preceding June 15, 2015, the Company elects
to:


 


(A)              issue to all or substantially all
holders of its Common Stock any rights, options or warrants (other than
pursuant to a rights plan) entitling them for 


 


52

















 


a
period of not more than 60 calendar days after the record date for such
issuance, to subscribe for or purchase shares of its Common Stock, at a price
per share less than the average of the Last Reported Sale Prices of the Common
Stock for the 10 consecutive Trading Day period ending on, and including, the
Trading Day immediately preceding the declaration date for such issuance; or


 


(B)              distribute to all or substantially
all holders of its Common Stock the Company’s assets, debt securities or rights
to purchase securities of the Company (other than pursuant to a rights plan),
which distribution has a per share value, as reasonably determined by the Board
of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock
on the Trading Day preceding the declaration date for such distribution,


 


then, in either case, the Company shall notify all
Holders of the Notes, the Trustee and the Conversion Agent (if other than the
Trustee) at least 45 Scheduled Trading Days prior to the Ex-Dividend Date for
such issuance or distribution.  Once the
Company has given such notice, the Notes may be surrendered for conversion at
any time until the earlier of (1) the close of business on the Business
Day immediately preceding the Ex-Dividend Date for such issuance or
distribution and (2) the Company’s announcement that such issuance or
distribution will not take place, even if the Notes are not otherwise
convertible at such time.  Holders of the
Notes may not exercise this right (and need not be given advance notice of the
issuance or distribution) if they may participate (as a result of holding the
Notes, and at the same time as Holders of Common Stock participate) in any of
the transactions described above as if such Holders of the Notes held a number
of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount of Notes (expressed in
thousands) held by such Holders, without having to convert their Notes.  Subject to subsection (b)(i)(B) of this Section 14.01,
and unless as of the close of business on the Trading Day immediately following
the related Conversion Date, an Option Counterparty Reorganization Event has
occurred, upon any conversion of Notes prior to March 15, 2015 pursuant to
this clause (ii), the Company shall satisfy the resulting Conversion Obligation
through Cash Settlement as described in Section 14.02.


 


(iii)          If a transaction or event that
constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs
prior to the close of business on the Business Day immediately preceding June 15,
2015, regardless of whether a Holder has the right to require the Company to
repurchase the Notes pursuant to Section 15.02, or if the Company is a
party to a consolidation, merger, binding share exchange, or transfer or lease
of all or substantially all of its assets (excluding a pledge of securities
issued by any of the Company’s Subsidiaries), pursuant to which the Common
Stock would be converted into cash, securities or other assets, the Notes may
be surrendered for conversion at any time from and after the effective date of
such transaction until 30 Trading Days after such effective date or, if such
transaction also constitutes a Fundamental Change, until the Scheduled Trading
Day immediately prior to the related Fundamental Change Repurchase Date.  The Company shall notify Holders and the
Trustee (i) as promptly as practicable following the date the Company
publicly announces such transaction but in no event less than 20 Scheduled
Trading Days prior to 


 


53

















 


the
anticipated effective date of such transaction or (ii) if the Company does
not have knowledge of such transaction at least 20 Scheduled Trading Days prior
to the anticipated effective date of such transaction, within one Business Day
of the date upon which the Company receives notice, or otherwise becomes aware,
of such transaction but in no event later than the actual effective date of
such transaction.  Subject to subsection
(b)(i)(B) of this Section 14.01, and unless as of the close of
business on the Trading Day immediately following the related Conversion Date,
an Option Counterparty Reorganization Event has occurred, upon any conversion
of Notes prior to March 15, 2015 pursuant to this clause (iii), the
Company shall satisfy the resulting Conversion Obligation through Cash
Settlement as described in Section 14.02.


 


(iv)          Prior to the close of business on the
Business Day immediately preceding June 15, 2015, the Notes may be
surrendered for conversion during any calendar quarter commencing after the
calendar quarter ending on December 31, 2010 (and only during such
calendar quarter), if the Last Reported Sale Price of the Common Stock for at
least 20 Trading Days (whether or not consecutive) during the period of 30
consecutive Trading Days ending on the last Trading Day of the immediately
preceding calendar quarter is greater than or equal to 130% of the Conversion
Price on each applicable Trading Day. 
The Company shall determine at the beginning of each calendar quarter
commencing after December 31, 2010 whether the Notes may be surrendered
for conversion in accordance with this clause (iv) and shall notify the
Trustee and the Conversion Agent (if other than the Trustee) if the Notes
become convertible in accordance with this clause (iv).  Subject to subsection (b)(i)(B) of this Section 14.01,
and unless as of the close of business on the Trading Day immediately following
the related Conversion Date, an Option Counterparty Reorganization Event has
occurred, upon any conversion of Notes prior to March 15, 2015 pursuant to
this clause (iv), the Company shall satisfy the resulting Conversion Obligation
through Cash Settlement as described in Section 14.02.


 


(v)           In connection with any conversion of
Notes that occurs on or after June 15, 2015, unless as of the close of
business on March 15, 2015, an Option Counterparty Reorganization Event
has occurred, the Company shall satisfy the resulting Conversion Obligation
through Cash Settlement as described in Section 14.02.


 


Section 14.02.  Conversion Procedure;
Settlement Upon Conversion.


 


(a)        Subject to Section 14.01(b), this Section 14.02,
Section 14.03(b) and Section 14.07(a), upon conversion of any
Note, the Company shall pay or deliver, as the case may be, to the converting
Holder, in respect of each $1,000 principal amount of Notes being converted,
cash (“Cash Settlement”), shares of Common
Stock, together with cash, if applicable, in lieu of any fractional share of
Common Stock in accordance with subsection (j) of this Section 14.02
(“Physical Settlement”) or a combination
of cash and shares of Common Stock, together with cash, if applicable, in lieu
of any fractional share of Common Stock in accordance with subsection (j) of
this Section 14.02 (“Combination Settlement”),
at its election, as set forth in this Section 14.02.  Unless as of the close of business on March 15,
2015, (x) one or more of JPMorgan Chase Bank, National Association, London
Branch and Deutsche Bank AG, London Branch or one or more “significant
subsidiaries” (as such term is defined in Article 1, Rule 1-02 


 


54

















 


of Regulation S-X under
the Exchange Act) of one or more of the foregoing (each such named party or any
such significant subsidiary, an “Option Counterparty”)
shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to such Option Counterparty or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of such Option Counterparty or any substantial part
of its property, or shall consent to any such relief or to the appointment of
or taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due, or (y) an involuntary case or other proceeding shall be commenced
against one or more of the Option Counterparties seeking liquidation,
reorganization or other relief with respect to such Option Counterparty or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of such Option Counterparty or any substantial part
of its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 30 consecutive days (either such
voluntary or involuntary case, an “Option  Counterparty Reorganization Event”), then all conversions
occurring on or after March 15, 2015 shall be settled through Cash
Settlement. Prior to March 15, 2015, unless as of the close of business on
the Trading Day immediately following the related Conversion Date, an Option
Counterparty Reorganization Event has occurred, all conversions other than
those occurring at a time when the Notes are convertible pursuant to Section 14.01(b)(i)(A) and
for which the Company timely elects Physical Settlement or Combination
Settlement in accordance with clause (iii) of this subsection (a) shall
be settled through Cash Settlement.  In
connection with any conversion of the Notes, if, as of the close of business on
the Trading Day immediately following the related Conversion Date (if such
Conversion Date occurs prior to March 15, 2015), or as of the close of
business on March 15, 2015 (if such Conversion Date occurs on or after March 15,
2015), as applicable, an Option Counterparty Reorganization Event has occurred,
the Company shall have the right to elect Cash Settlement, Physical Settlement
or Combination Settlement, subject to compliance with the notice provisions set
forth in this Section 14.02.


 


(i)            All conversions occurring on or
after March 15, 2015 shall be settled using the same Settlement Method.


 


(ii)           Prior to March 15, 2015, the
Company shall use the same Settlement Method for all conversions occurring on
the same Conversion Date, but the Company shall not have any obligation to use
the same Settlement Method with respect to conversions that occur on different
Trading Days.


 


(iii)          If, in respect of any Conversion Date
(or the period beginning on, but excluding, March 15, 2015 and ending on,
and including, the Business Day immediately preceding the Maturity Date, as the
case may be), the Company elects to deliver a notice (the “Settlement
Notice”) of the relevant Settlement Method in respect of such
Conversion Date (or such period, as the case may be), the Company, through the
Trustee, shall deliver such Settlement Notice to converting Holders no later
than the close of business on the Trading Day immediately following the
relevant Conversion Date (or, in the case of any conversions occurring on or
after March 15, 2015, no later than March 15, 2015).  If the Company does not elect a Settlement
Method prior to the deadline set forth 


 


55

















 


in
the immediately preceding sentence, the Company shall no longer have the right
to elect Physical Settlement or Combination Settlement and the Company shall be
deemed to have elected Cash Settlement in respect of its Conversion
Obligation.  Such Settlement Notice shall
specify the relevant Settlement Method and in the case of an election of
Combination Settlement, the relevant Settlement Notice shall indicate the
Specified Dollar Amount.  If the Company
delivers a Settlement Notice electing Combination Settlement in respect of its
Conversion Obligation but does not indicate a Specified Dollar Amount in such
Settlement Notice, the Specified Dollar Amount shall be deemed to be $1,000.


 


(iv)          The cash, shares of Common Stock or
combination of cash and shares of Common Stock in respect of any conversion of
Notes (the “Settlement Amount”) shall be
computed as follows:


 


(A)              if the Company elects to satisfy
its Conversion Obligation in respect of such conversion by Physical Settlement,
the Company shall deliver to the converting Holder a number of shares of Common
Stock equal to the product of (1) the aggregate principal amount of Notes
to be converted, divided by $1,000, and (2) the Conversion Rate in effect on the Conversion
Date;


 


(B)              if the Company elects (or is
deemed to have elected) to satisfy its Conversion Obligation in respect of such
conversion by Cash Settlement, the Company shall pay to the converting Holder
in respect of each $1,000 principal amount of Notes being converted cash in an
amount equal to the sum of the Daily Conversion Values for each of the 40
consecutive Trading Days during the related Observation Period; and


 


(C)              if the Company elects to satisfy
its Conversion Obligation in respect of such conversion by Combination
Settlement, the Company shall pay or deliver, as the case may be, in respect of
each $1,000 principal amount of Notes being converted, a Settlement Amount
equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive
Trading Days during the related Observation Period.


 


(v)           The Daily Settlement Amounts (if applicable)
and the Daily Conversion Values (if applicable) shall be determined by the
Company promptly following the last day of the Observation Period.  Promptly after such determination of the
Daily Settlement Amounts or the Daily Conversion Values, as the case may be,
and the amount of cash payable in lieu of any fractional share, the Company
shall notify the Trustee in writing and the Conversion Agent (if other than the
Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the
case may be, and the amount of cash payable in lieu of fractional shares of
Common Stock.  The Trustee and the
Conversion Agent (if other than the Trustee) shall have no responsibility for
any such determination.


 


(b)        Subject to Section 14.02(e), before
any Holder of a Note shall be entitled to convert a Note as set forth above,
such Holder shall (i) in the case of a Global Note, comply with the
procedures of the Depositary in effect at that time and, if required, pay funds
equal to interest 


 


56

















 


payable on the next
Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and
(ii) in the case of a Physical Note (1) complete, manually sign and
deliver an irrevocable notice to the Conversion Agent as set forth in the Form of
Notice of Conversion (or a facsimile thereof) (a “Notice of
Conversion”) at the office of the Conversion Agent and state in
writing therein the principal amount of Notes to be converted and the name or
names (with addresses) in which such Holder wishes the certificate or
certificates for any shares of Common Stock to be delivered upon settlement of
the Conversion Obligation to be registered, (2) surrender such Notes, duly
endorsed to the Company or in blank (and accompanied by appropriate endorsement
and transfer documents), at the office of the Conversion Agent, (3) if
required, furnish appropriate endorsements and transfer documents and (4) if
required, pay funds equal to interest payable on the next Interest Payment Date
to which such Holder is not entitled as set forth in Section 14.02(h).  The Trustee (and if different, the Conversion
Agent) shall notify the Company of any conversion pursuant to this Article 14
on the Conversion Date for such conversion. 
No Notice of Conversion with respect to any Notes may be surrendered by
a Holder thereof if such Holder has also delivered a Fundamental Change
Repurchase Notice to the Company in respect of such Notes and not validly
withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03.


 


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


 


(c)        A Note shall be deemed to have been
converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the
requirements set forth in subsection (b) above.  Subject to Section 14.03(b), the Company
shall pay or deliver, as the case may be, the consideration due in respect of
the Conversion Obligation on the third Business Day immediately following the
relevant Conversion Date, if the Company elects Physical Settlement, or on the
third Business Day immediately following the last Trading Day of the
Observation Period, in the case of any other Settlement Method.  If any shares of Common Stock are due to
converting Holders, the Company shall issue or cause to be issued, and deliver
to the Conversion Agent or to such Holder, or such Holder’s nominee or
nominees, certificates or a book-entry transfer through the Depositary for the
full number of shares of Common Stock to which such Holder shall be entitled in
satisfaction of the Company’s Conversion Obligation.


 


(d)        In case any Note shall be surrendered
for partial conversion, the Company shall execute and the Trustee shall
authenticate and deliver to or upon the written order of the Holder of the Note
so surrendered a new Note or Notes in authorized denominations in an aggregate
principal amount equal to the unconverted portion of the surrendered Note,
without payment of any service charge by the converting Holder but, if required
by the Company or Trustee, with payment of a sum sufficient to cover any
transfer tax or similar governmental charge required by law or that may be
imposed in connection therewith as a result of the name of the Holder of the
new Notes issued upon such conversion being different from the name of the
Holder of the old Notes surrendered for such conversion.


 


57

















 


(e)        If a Holder submits a Note for
conversion, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of any shares of Common Stock upon conversion,
unless the tax is due because the Holder requests such shares to be issued in a
name other than the Holder’s name, in which case the Holder shall pay that tax.  The Conversion Agent may refuse, without
liability, to deliver the certificates representing the shares of Common Stock
being issued in a name other than the Holder’s name until the Trustee receives
a sum sufficient to pay any tax that is due by such Holder in accordance with
the immediately preceding sentence.


 


(f)        Except as provided in Section 14.04,
no adjustment shall be made for dividends on any shares issued upon the
conversion of any Note as provided in this Article 14.


 


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


 


(h)        Upon conversion, a Holder shall not
receive any separate cash payment for accrued and unpaid interest, if any,
except as set forth below.  The Company’s
settlement of the Conversion Obligation shall be deemed to satisfy in full its
obligation to pay the principal amount of the Note and accrued and unpaid
interest, if any, to, but not including, the Conversion Date. As a result,
accrued and unpaid interest, if any, to, but not including, the Conversion Date
shall be deemed to be paid in full rather than cancelled, extinguished or
forfeited.  Upon a conversion of Notes
into a combination of cash and shares of Common Stock, accrued and unpaid
interest will be deemed to be paid first out of the cash paid upon such
conversion.  Notwithstanding the
foregoing, if Notes are converted after the close of business on a Regular
Record Date, Holders of such Notes as of the close of business on such Regular
Record Date will receive the full amount of interest payable on such Notes on
the corresponding Interest Payment Date notwithstanding the conversion.  Notes surrendered for conversion during the
period from the close of business on any Regular Record Date to the open of
business on the immediately following Interest Payment Date must be accompanied
by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for
conversions following the Regular Record Date immediately preceding the
Maturity Date; (2) if the Company has specified a Fundamental Change
Repurchase Date that is after a Regular Record Date and on or prior to the
Business Day immediately following the corresponding Interest Payment Date; or (3) to
the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the
time of conversion with respect to such Note.


 


(i)         The Person in whose name the
certificate for any shares of Common Stock delivered upon conversion is
registered shall be treated as a stockholder of record as of the close of
business on the relevant Conversion Date (if the Company elects to satisfy the
related Conversion Obligation by Physical Settlement) or the last Trading Day
of the relevant Observation Period (if the Company elects to satisfy the
related Conversion Obligation by Combination Settlement), as the case may
be.  Upon a conversion of Notes, such
Person shall no longer be a Holder of such Notes surrendered for conversion.


 


58

















 


(j)         The Company shall not issue any
fractional share of Common Stock upon conversion of the Notes and shall instead
pay cash in lieu of any fractional share of Common Stock issuable upon
conversion based on the Daily VWAP on the relevant Conversion Date (in the case
of Physical Settlement) or based on the Daily VWAP on the last Trading Day of
the relevant Observation Period (in the case of Combination Settlement).  For each Note surrendered for conversion, if
the Company has elected Combination Settlement, the full number of shares that
shall be issued upon conversion thereof shall be computed on the basis of the
aggregate Daily Settlement Amounts for the applicable Observation Period, and
any fractional shares remaining after such computation shall be paid in cash.


 


Section 14.03.  Increased Conversion Rate
Applicable to Certain Notes Surrendered in Connection with Make-Whole
Fundamental Changes.  (a) 
If a Make-Whole Fundamental Change occurs and a Holder elects to convert its
Notes in connection with such Make-Whole Fundamental Change, the Company shall,
under the circumstances described below, increase the Conversion Rate for the
Notes so surrendered for conversion by a number of additional shares of Common
Stock (the “Additional Shares”),
as described below.  A conversion of
Notes shall be deemed for these purposes to be “in connection with” such
Make-Whole Fundamental Change if the relevant Notice of Conversion is received
by the Conversion Agent from, and including, the Effective Date of the
Make-Whole Fundamental Change up to, and including, the Business Day
immediately prior to the related Fundamental Change Repurchase Date (or, in the
case of a Make-Whole Fundamental Change that would have been a Fundamental
Change but for the proviso in
clause (b) of the definition thereof, the 35th Trading Day immediately
following the Effective Date of such Make-Whole Fundamental Change).


 


(b)        Subject to any limitations set forth in Section 14.01
or Section 14.02, upon surrender of Notes for conversion in connection with
a Make-Whole Fundamental Change pursuant to Section 14.01(b)(iii), the
Company shall, at its option, satisfy the related Conversion Obligation by
Physical Settlement, Cash Settlement or Combination Settlement in accordance
with Section 14.02; provided, however, that if, at the effective time of a Make-Whole
Fundamental Change described in clause (b) of the definition of
Fundamental Change, the Reference Property is composed entirely of cash, for
any conversion of Notes following the Effective Date of such Make-Whole
Fundamental Change, the Conversion Obligation shall be calculated based solely
on the Stock Price for the transaction and shall be deemed to be an amount of
cash per $1,000 principal amount of converted Notes equal to the Conversion
Rate (including any adjustment for Additional Shares), multiplied
by such Stock Price.  In such
event, the Conversion Obligation shall be paid to Holders in cash on the third
Business Day following the Conversion Date. 
The Company shall notify the Holders of Notes of the Effective Date of
any Make-Whole Fundamental Change and issue a press release announcing such
Effective Date no later than five Business Days after such Effective Date.


 


(c)        The number of Additional Shares, if any,
by which the Conversion Rate shall be increased shall be determined by
reference to the table below, based on the date on which the Make-Whole
Fundamental Change occurs or becomes effective (the “Effective Date”) and the price (the “Stock Price”) paid (or deemed to be paid)
per share of the Common Stock in the Make-Whole Fundamental Change.  If the holders of the Common Stock receive
only cash in a Make-Whole Fundamental Change described in clause (b) of
the definition of Fundamental Change, the Stock Price shall be the cash amount
paid per share.  Otherwise, the Stock
Price 


 


59

















 


shall be the average of
the Last Reported Sale Prices of the Common Stock over the five Trading Day
period ending on, and including, the Trading Day immediately preceding the
Effective Date of the Make-Whole Fundamental Change.  The Board of Directors shall make appropriate
adjustments to the Stock Price, in its good faith determination, to account for
any adjustment to the Conversion Rate that becomes effective, or any event
requiring an adjustment to the Conversion Rate where the Ex-Dividend Date of
the event occurs, during such five consecutive Trading Day period.


 


(d)        The Stock Prices set forth in the column
headings of the table below shall be adjusted as of any date on which the
Conversion Rate of the Notes is otherwise adjusted.  The adjusted Stock Prices shall equal the
Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the
Conversion Rate immediately prior to such adjustment giving rise to the Stock
Price adjustment and the denominator of which is the Conversion Rate as so
adjusted.  The number of Additional
Shares set forth in the table below shall be adjusted in the same manner and at
the same time as the Conversion Rate as set forth in Section 14.04.


 


(e)        The following table sets forth the
number of Additional Shares to be received per $1,000 principal amount of Notes
pursuant to this Section 14.03 for each Stock Price and Effective Date set
forth below:


 


	
   

  	
   

  	
  Stock Price

  	
   

  
	
  Effective date

  	
   

  	
  $10.00

  	
   

  	
  $15.00

  	
   

  	
  $20.00

  	
   

  	
  $25.00

  	
   

  	
  $30.00

  	
   

  	
  $35.00

  	
   

  	
  $40.00

  	
   

  	
  $45.00

  	
   

  	
  $50.00

  	
   

  	
  $55.00

  	
   

  
	
  September 22, 2010

  	
   

  	
  20.0000

  	
   

  	
  9.0889

  	
   

  	
  4.7998

  	
   

  	
  2.9181

  	
   

  	
  1.9220

  	
   

  	
  1.3208

  	
   

  	
  0.9243

  	
   

  	
  0.6471

  	
   

  	
  0.4459

  	
   

  	
  0.2964

  	
   

  
	
  September 15, 2011

  	
   

  	
  20.0000

  	
   

  	
  8.3571

  	
   

  	
  4.1275

  	
   

  	
  2.4125

  	
   

  	
  1.5591

  	
   

  	
  1.0624

  	
   

  	
  0.7402

  	
   

  	
  0.5159

  	
   

  	
  0.3529

  	
   

  	
  0.2308

  	
   

  
	
  September 15, 2012

  	
   

  	
  20.0000

  	
   

  	
  7.2731

  	
   

  	
  3.2248

  	
   

  	
  1.7767

  	
   

  	
  1.1203

  	
   

  	
  0.7582

  	
   

  	
  0.5280

  	
   

  	
  0.3679

  	
   

  	
  0.2502

  	
   

  	
  0.1609

  	
   

  
	
  September 15, 2013

  	
   

  	
  20.0000

  	
   

  	
  5.5960

  	
   

  	
  2.0145

  	
   

  	
  0.9906

  	
   

  	
  0.5967

  	
   

  	
  0.3976

  	
   

  	
  0.2755

  	
   

  	
  0.1909

  	
   

  	
  0.1273

  	
   

  	
  0.0769

  	
   

  
	
  September 15, 2014

  	
   

  	
  20.0000

  	
   

  	
  2.9818

  	
   

  	
  0.5342

  	
   

  	
  0.1586

  	
   

  	
  0.0322

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  September 15, 2015

  	
   

  	
  20.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  



 


The exact Stock Prices and Effective Dates may not
be set forth in the table above, in which case:


 


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


 


(ii)           if the Stock Price is greater than
$55.00 per share (subject to adjustment in the same manner as the Stock Prices
set forth in the column headings of the table above pursuant to subsection (d) above),
no Additional Shares shall be added to the Conversion Rate; and


 


(iii)          if the Stock Price is less than $10.00
per share (subject to adjustment in the same manner as the Stock Prices set
forth in the column headings of the table above


 


60






 












 


pursuant
to subsection (d) above), no Additional Shares shall be added to the Conversion
Rate.


 


Notwithstanding the foregoing, in no event shall
the total number of shares of Common Stock issuable upon conversion exceed
100.0000 per $1,000 principal amount of Notes, subject to adjustment in the
same manner as the Conversion Rate pursuant to Section 14.04.


 


(f)         Nothing in this Section 14.03 shall prevent an adjustment to the
Conversion Rate pursuant to Section 14.04 in respect of a Make-Whole
Fundamental Change.


 


Section 14.04.  Adjustment of Conversion Rate.  The Conversion Rate shall be adjusted from
time to time by the Company if any of the following events occurs, except that
the Company shall not make any adjustments to the Conversion Rate if Holders of
the Notes participate (other than in the case of a share split or share
combination), at the same time and upon the same terms as holders of the Common
Stock and solely as a result of holding the Notes, in any of the transactions
described in this Section 14.04, without having to convert their Notes, as if
they held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands)
of Notes held by such Holder.


 


(a)        If
the Company exclusively issues shares of Common Stock as a dividend or
distribution on shares of its Common Stock, or if the Company effects a share
split or share combination, the Conversion Rate shall be adjusted based on the
following formula:


 





 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately prior
  to the open of business on the Ex-Dividend Date of such dividend or
  distribution, or immediately prior to the open of business on the effective
  date of such share split or share combination, as applicable;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR’

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately after
  the open of business on such Ex-Dividend Date or effective date;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS0

  	
   

  	
  =

  	
   

  	
  the number of shares of Common Stock outstanding
  immediately prior to the open of business on such Ex-Dividend Date or
  effective date; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS’

  	
   

  	
  =

  	
   

  	
  the number of shares of Common Stock outstanding
  immediately after giving effect to such dividend, distribution, share split
  or share combination.

  



 


Any adjustment made under this Section 14.04(a)
shall become effective immediately after the open of business on the
Ex-Dividend Date for such dividend or distribution, or immediately after the
open of business on the effective date for such share split or share
combination, as applicable.  If any dividend
or distribution of the type described in this Section 14.04(a) is declared but
not so paid or made, the Conversion Rate shall be immediately readjusted,
effective as of the date the 


 


61

















 


Board of Directors determines not to pay such dividend
or distribution, to the Conversion Rate that would then be in effect if such
dividend or distribution had not been declared.


 


(b)        If
the Company issues to all or substantially all holders of its Common Stock any
rights, options or warrants entitling them, for a period of not more than 60
calendar days after the record date for such issuance, to subscribe for or
purchase shares of the Common Stock at a price per share less than the average
of the Last Reported Sale Prices of the Common Stock for the 10 consecutive
Trading Day period ending on, and including, the Trading Day immediately
preceding the declaration date for such issuance, the Conversion Rate shall be
increased based on the following formula:


 





 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately prior
  to the open of business on the Ex-Dividend Date for such issuance;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR’

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately after
  the open of business on such Ex-Dividend Date;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS0

  	
   

  	
  =

  	
   

  	
  the number of shares of Common Stock outstanding
  immediately prior to the open of business on such Ex-Dividend Date;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  X

  	
   

  	
  =

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Y

  	
   

  	
  =

  	
   

  	
  the number of shares of Common Stock equal to the
  aggregate price payable to exercise such rights, options or warrants divided by the average of the Last Reported Sale Prices of
  the Common Stock over the 10 consecutive Trading Day period ending on the
  Trading Day immediately preceding the declaration date for the issuance of
  such rights, options or warrants.

  



 


Any increase made under this Section 14.04(b) shall
be made successively whenever any such rights, options or warrants are issued
and shall become effective immediately after the open of business on the Ex-Dividend
Date for such issuance.  To the extent
that shares of the Common Stock are not delivered after the expiration or
termination of such rights, options or warrants, the Conversion Rate shall be
decreased to the Conversion Rate that would then be in effect had the increase
with respect to the issuance of such rights, options or warrants been made on
the basis of delivery of only the number of shares of Common Stock actually
delivered.  If such rights, options or warrants
are not so issued, the Conversion Rate shall be decreased to the Conversion
Rate that would then be in effect if such Ex-Dividend Date for such issuance
had not occurred.


 


For purposes of this Section 14.04(b), in
determining whether any rights, options or warrants entitle the holders to
subscribe for or purchase shares of the Common Stock at less than such average
of the Last Reported Sale Prices of the Common Stock for the 10 consecutive 


 


62

















 


Trading Day period ending on the Trading Day
immediately preceding the declaration date for such issuance, and in
determining the aggregate offering price of such shares of Common Stock, there
shall be taken into account any consideration received by the Company for such
rights, options or warrants and any amount payable on exercise or conversion
thereof, the value of such consideration, if other than cash, to be determined
by the Board of Directors.


 


(c)        If
the Company distributes shares of its Capital Stock, evidences of its
indebtedness, other assets or property or rights, options or warrants to
acquire its Capital Stock or other securities, to all or substantially all
holders of the Common Stock, excluding (i) dividends, distributions or
issuances as to which an adjustment was effected pursuant to Section 14.04(a)
or Section 14.04(b), (ii) dividends or distributions paid exclusively in cash
as to which an adjustment was effected pursuant to Section 14.04(d), and (iii)
Spin-Offs as to which the provisions set forth below in this Section 14.04(c) shall
apply (any of such shares of Capital Stock, evidences of indebtedness, other
assets or property or rights, options or warrants to acquire Capital Stock or
other securities of the Company, the “Distributed Property”),
then the Conversion Rate shall be increased based on the following formula:


 





 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately prior
  to the open of business on the Ex-Dividend Date for such distribution;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR’

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately after
  the open of business on such Ex-Dividend Date;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SP0

  	
   

  	
  =

  	
   

  	
  the average of the Last Reported Sale Prices of
  the Common Stock over the 10 consecutive Trading Day period ending on the
  Trading Day immediately preceding the Ex-Dividend Date for such distribution;
  and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FMV

  	
   

  	
  =

  	
   

  	
  the fair market value (as determined by the Board
  of Directors) of the Distributed Property with respect to each outstanding
  share of the Common Stock on the Ex-Dividend Date for such distribution.

  



 


Any increase made under the portion of this Section
14.04(c) above shall become effective immediately after the open of business on
the Ex-Dividend Date for such distribution. 
If such distribution is not so paid or made, the Conversion Rate shall
be decreased to the Conversion Rate that would then be in effect if such
dividend or distribution had not been declared. 
Notwithstanding the foregoing, if “FMV” (as defined above) is equal to
or greater than “SP0” (as defined
above), in lieu of the foregoing increase, each Holder of a Note shall receive,
in respect of each $1,000 principal amount thereof, at the same time and upon
the same terms as holders of the Common Stock receive the Distributed Property,
the amount of Distributed Property such Holder would have received if such
Holder owned a number of shares of Common Stock equal to the Conversion Rate in
effect immediately prior to the open of business on the Ex-Dividend Date for
the distribution.  If the Board of
Directors determines the “FMV” (as defined above) of 


 


63

















 


any distribution for purposes of this Section
14.04(c) by reference to the actual or when-issued trading market for any
securities, it shall in doing so consider the prices in such market over the
same period used in computing the Last Reported Sale Prices of the Common Stock
over the 10 consecutive Trading Day period ending on the Trading Day
immediately preceding the Ex-Dividend Date for such distribution.


 


With respect to an adjustment pursuant to this
Section 14.04(c) where there has been a payment of a dividend or other
distribution on the Common Stock of shares of Capital Stock of any class or
series, or similar equity interest, of or relating to a Subsidiary or other
business unit of the Company, that are, or, when issued, will be, listed or
admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on
the following formula:


 





 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately prior
  to the end of the Valuation Period;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR’

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately after
  the end of the Valuation Period;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FMV0

  	
   

  	
  =

  	
   

  	
  the average of the Last Reported Sale Prices of
  the Capital Stock or similar equity interest distributed to holders of the
  Common Stock applicable to one share of the Common Stock (determined by
  reference to the definition of Last Reported Sale Price as set forth in
  Section 1.01 as if references therein to Common Stock were to such Capital
  Stock or similar equity interest) over the first 10 consecutive Trading Day
  period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MP0

  	
   

  	
  =

  	
   

  	
  the average of the Last Reported Sale Prices of
  the Common Stock over the Valuation Period.

  



 


The adjustment to the Conversion Rate under the
preceding paragraph shall occur on the last Trading Day of the Valuation
Period; provided that in respect of any
conversion during the Valuation Period, references in the portion of this
Section 14.04(c) related to Spin-Offs to 10 Trading Days shall be deemed to be
replaced with such lesser number of Trading Days as have elapsed between the
Ex-Dividend Date of such Spin-Off and the Conversion Date in determining the
Conversion Rate.  If the Ex-Dividend Date
of such Spin-Off is less than 10 Trading Days prior to, and including, the end
of the Observation Period in respect of any conversion, references with respect
to 10 Trading Days shall be deemed replaced, for purposes of calculating the
affected daily Conversion Rates in respect of that conversion, with such lesser
number of Trading Days as have elapsed from, and including, the Ex-Dividend
Date of such Spin-Off to, and including, the last Trading Day of such
Observation Period.


 


For purposes of this Section 14.04(c) (and subject
in all respect to Section 14.11), rights, options or warrants distributed by
the Company to all holders of its Common Stock entitling 


 


64

















 


them to subscribe for or purchase shares of the
Company’s Capital Stock, including Common Stock (either initially or under
certain circumstances), which rights, options or warrants, until the occurrence
of a specified event or events (“Trigger Event”):
(i) are deemed to be transferred with such shares of the Common Stock; (ii) are
not exercisable; and (iii) are also issued in respect of future issuances of
the Common Stock, shall be deemed not to have been distributed for purposes of
this Section 14.04(c) (and no adjustment to the Conversion Rate under this
Section 14.04(c) will be required) until the occurrence of the earliest Trigger
Event, whereupon such rights, options or warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the
Conversion Rate shall be made under this Section 14.04(c).  If any such right, option or warrant,
including any such existing rights, options or warrants distributed prior to
the date of this Indenture, are subject to events, upon the occurrence of which
such rights, options or warrants become exercisable to purchase different
securities, evidences of indebtedness or other assets, then the date of the
occurrence of any and each such event shall be deemed to be the date of
distribution and Ex-Dividend Date with respect to new rights, options or
warrants with such rights (in which case the existing rights, options or
warrants shall be deemed to terminate and expire on such date without exercise
by any of the holders thereof).  In
addition, in the event of any distribution (or deemed distribution) of rights,
options or warrants, or any Trigger Event or other event (of the type described
in the immediately preceding sentence) with respect thereto that was counted
for purposes of calculating a distribution amount for which an adjustment to
the Conversion Rate under this Section 14.04(c) was made, (1) in the case of
any such rights, options or warrants that shall all have been redeemed or
purchased without exercise by any holders thereof, upon such final redemption
or purchase (x) the Conversion Rate shall be readjusted as if such rights,
options or warrants had not been issued and (y) the Conversion Rate shall then
again be readjusted to give effect to such distribution, deemed distribution or
Trigger Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or purchase price received by a holder or holders
of Common Stock with respect to such rights, options or warrants (assuming such
holder had retained such rights, options or warrants), made to all holders of
Common Stock as of the date of such redemption or purchase, and (2) in the case
of such rights, options or warrants that shall have expired or been terminated
without exercise by any holders thereof, the Conversion Rate shall be
readjusted as if such rights, options and warrants had not been issued.


 


For purposes of Section 14.04(a), Section 14.04(b)
and this Section 14.04(c), any dividend or distribution to which this Section
14.04(c) is applicable that also includes one or both of:


 


(A)         a
dividend or distribution of shares of Common Stock to which Section 14.04(a) is
applicable (the “Clause A Distribution”); or


 


(B)           a
dividend or distribution of rights, options or warrants to which Section
14.04(b) is applicable (the “Clause B Distribution”),


 


then (1) such dividend or distribution, other than
the Clause A Distribution and the Clause B Distribution, shall be deemed to be
a dividend or distribution to which this Section 14.04(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment
required by this Section 14.04(c) with respect to such Clause C Distribution
shall then be made, and (2) the Clause A Distribution and Clause B Distribution
shall be deemed to immediately follow the 


 


65

















 


Clause C Distribution and any Conversion Rate
adjustment required by Section 14.04(a) and Section 14.04(b) with respect
thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend
Date” of the Clause A Distribution and the Clause B Distribution shall be
deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any
shares of Common Stock included in the Clause A Distribution or Clause B
Distribution shall be deemed not to be “outstanding immediately prior to the
open of business on such Ex-Dividend Date or effective date” within the meaning
of Section 14.04(a) or “outstanding immediately prior to the open of business
on such Ex-Dividend Date” within the meaning of Section 14.04(b).


 


(d)        If
any cash dividend or distribution is made to all or substantially all holders
of the Common Stock, other than a regular, annual cash dividend that does not
exceed $0.08 per share (the “Initial Dividend Threshold”),
the Conversion Rate shall be adjusted based on the following formula:


 





 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately prior
  to the open of business on the Ex-Dividend Date for such dividend or
  distribution;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR’

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately after
  the open of business on the Ex-Dividend Date for such dividend or
  distribution;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SP0

  	
   

  	
  =

  	
   

  	
  the Last Reported Sale Price of the Common Stock
  on the Trading Day immediately preceding the Ex-Dividend Date for such
  dividend or distribution;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  T

  	
   

  	
  =

  	
   

  	
  the Initial Dividend Threshold; provided that if the dividend or distribution is not a
  regular annual cash dividend, the Initial Dividend Threshold shall be deemed
  to be zero; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C

  	
   

  	
  =

  	
   

  	
  the amount in cash per share the Company
  distributes to holders of its Common Stock.

  



 


The Initial Dividend Threshold shall be subject to
adjustment in a manner inversely proportional to adjustments to the Conversion
Rate; provided that no adjustment shall be
made to the Initial Dividend Threshold for any adjustment to the Conversion
Rate pursuant to this Section 14.04(d).


 


Any increase pursuant to this Section 14.04(d)
shall become effective immediately after the open of business on the
Ex-Dividend Date for such dividend or distribution.  If such dividend or distribution is not so
paid, the Conversion Rate shall be decreased, effective as of the date the
Board of Directors determines not to make or pay such dividend or distribution,
to the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared. 
Notwithstanding the foregoing, if “C” (as defined above) is equal to or
greater than “SP0” (as defined
above), in lieu of the foregoing increase, each Holder of a Note shall receive,
for each $1,000 principal amount of Notes, at the same time and upon the same
terms as holders 


 


66

















 


of shares of the Common Stock, the amount of cash
that such Holder would have received if such Holder owned a number of shares of
Common Stock equal to the Conversion Rate in effect immediately prior to the
open of business on the Ex-Dividend Date for such cash dividend or
distribution.


 


(e)        If
the Company or any of its Subsidiaries make a payment in respect of a tender
offer or exchange offer for the Common Stock, to the extent that the cash and
value of any other consideration included in the payment per share of the
Common Stock exceeds the Last Reported Sale Price of the Common Stock on the
Trading Day next succeeding the last date on which tenders or exchanges may be
made pursuant to such tender or exchange offer, the Conversion Rate shall be
increased based on the following formula:


 





 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately prior
  to the close of business on the 10th Trading Day immediately following, and
  including, the Trading Day next succeeding the date such tender or exchange
  offer expires;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR’

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately after
  the close of business on the 10th Trading Day immediately following, and
  including, the Trading Day next succeeding the date such tender or exchange
  offer expires;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AC

  	
   

  	
  =

  	
   

  	
  the aggregate value of all cash and any other
  consideration (as determined by the Board of Directors) paid or payable for
  shares of Common Stock purchased in such tender or exchange offer;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS0

  	
   

  	
  =

  	
   

  	
  the number of shares of Common Stock outstanding
  immediately prior to the date such tender or exchange offer expires (prior to
  giving effect to the purchase of all shares of Common Stock accepted for
  purchase or exchange in such tender offer or exchange offer);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS’

  	
   

  	
  =

  	
   

  	
  the number of shares of Common Stock outstanding
  immediately after the date such tender or exchange offer expires (after
  giving effect to the purchase of all shares of Common Stock accepted for
  purchase or exchange in such tender offer or exchange offer); and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SP’

  	
   

  	
  =

  	
   

  	
  the average of the Last Reported Sale Prices of
  the Common Stock over the 10 consecutive Trading Day period commencing on the
  Trading Day next succeeding the date such tender or exchange offer expires.

  



 


The adjustment to the Conversion Rate under this
Section 14.04(e) shall occur at the close of business on the 10th Trading Day
immediately following, and including, the Trading Day next succeeding the date
such tender or exchange offer expires; provided that
in respect of any conversion within the 10 Trading Days immediately following,
and including, the expiration date 


 


67

















 


of any tender or exchange offer, references in this
Section 14.04(e) with respect to 10 Trading Days shall be deemed replaced with
such lesser number of Trading Days as have elapsed between the date that such
tender or exchange offer expires and the Conversion Date in determining the
Conversion Rate.  If the Trading Day
immediately following the expiration date is less than 10 Trading Days prior
to, and including, the end of the Observation Period in respect of any
conversion, references to 10 Trading Days shall be deemed replaced, for
purposes of calculating the affected daily Conversion Rates in respect of that conversion,
with such lesser number of Trading Days as have elapsed from, and including,
the Trading Day immediately following the expiration date to, and including,
the last Trading Day of such Observation Period.


 


(f)         Notwithstanding this Section 14.04 or any other provision of this
Indenture or the Notes, if a Conversion Rate adjustment becomes effective on
any Ex-Dividend Date, and a Holder that has converted its Notes on or after
such Ex-Dividend Date and on or prior to the related Record Date would be treated
as the record holder of the shares of Common Stock as of the related Conversion
Date as described under Section 14.02(i) based on an adjusted Conversion Rate
for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment
provisions in this Section 14.04, the Conversion Rate adjustment relating to
such Ex-Dividend Date shall not be made for such converting Holder. Instead,
such Holder shall be treated as if such Holder were the record owner of the
shares of Common Stock on an unadjusted basis and participate in the related
dividend, distribution or other event giving rise to such adjustment.


 


(g)        In
addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of
this Section 14.04, and to the extent permitted by applicable law and subject
to the applicable rules of The New York Stock Exchange, the Company from time
to time may increase the Conversion Rate by any amount if the Board of
Directors determines that such increase would be in the Company’s best
interest.  In addition, the Company may
(but is not required to) increase the Conversion Rate to avoid or diminish any
income tax to holders of Common Stock or rights to purchase Common Stock in
connection with a dividend or distribution of shares (or rights to acquire shares)
or similar event.  Whenever the
Conversion Rate is increased pursuant to either of the preceding two sentences,
the Company shall mail to the Holder of each Note at its last address appearing
on the Note Register a notice of the increase at least 15 days prior to the
date the increased Conversion Rate takes effect, and such notice shall state
the increased Conversion Rate and the period during which it will be in effect.


 


(h)        Notwithstanding
anything to the contrary in this Article 14, the Conversion Rate shall not be
adjusted:


 


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


 


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


 


68

















 


(iii)          upon the issuance of any shares of the Common Stock pursuant to any
option, warrant, right or exercisable, exchangeable or convertible security not
described in clause (ii) of this subsection and outstanding as of the date the
Notes were first issued;


 


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


 


(v)           except as described in clauses (a), (b), (c), (d) and (e) of this
Section 14.04, for ordinary course of business stock repurchases, including,
but not limited to, structured or derivative transactions, pursuant to a stock
repurchase program approved by the Board of Directors; or


 


(vi)          for accrued and unpaid interest, if any.


 


(i)         If the application of any of the formulas in clauses (a), (b), (c), (d)
and (e) of this Section 14.04 (other than in respect of a share combination)
would result in a decrease in the Conversion Rate, no adjustment to the
Conversion Rate shall be made.


 


(j)         All calculations and other determinations under this Article 14 shall be
made by the Company and shall be made to the nearest one-ten thousandth
(1/10,000) of a share.


 


(k)        No
adjustment in the Conversion Rate shall be required unless the adjustment would
require an increase or decrease of at least 1% of the Conversion Rate. If the
adjustment is not made because the adjustment does not change the Conversion
Rate by 1% or more, then the adjustment that is not made shall be carried
forward and taken into account in any future adjustment. Notwithstanding the
foregoing, all such carried-forward adjustments shall be made with respect to
the Notes (i) in connection with any subsequent adjustment to the Conversion
Rate of at least 1% of the Conversion Rate, (ii) on the Conversion Date for any
Notes and (iii) on each Trading Day of any Observation Period.


 


(l)         Except as set forth in this Section 14.04, the Conversion Rate shall not
be adjusted for the issuance of Common Stock or any securities convertible into
or exchangeable for Common Stock or carrying the right to purchase Common Stock
or any such security or for any other event.


 


(m)       Whenever
the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee (and the Conversion Agent if not the Trustee) an Officers’
Certificate setting forth the Conversion Rate after such adjustment and setting
forth a brief statement of the facts requiring such adjustment.  Unless and until a Responsible Officer of the
Trustee shall have received such Officers’ Certificate, the Trustee shall not
be deemed to have knowledge of any adjustment of the Conversion Rate and may
assume without inquiry that the last Conversion Rate of which it has knowledge
is still in effect.  Promptly after
delivery of such certificate, the Company shall prepare a notice of such
adjustment of the Conversion Rate setting forth the adjusted Conversion Rate
and the date on which each adjustment becomes effective and shall mail such
notice of such adjustment of the Conversion Rate to each Holder at its last
address appearing on the Note Register of this Indenture.  Failure to deliver such notice shall not
affect the legality or validity of any such adjustment.


 


69

















 


(n)        For
purposes of this Section 14.04, the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the Company
so long as the Company does not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Company, but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock.


 


Section 14.05. Adjustments of Prices.  Whenever
any provision of this Indenture requires the Company to calculate the Last
Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or the Daily
Settlement Amounts over a span of multiple days (including an Observation
Period and the period for determining the Stock Price for purposes of a
Make-Whole Fundamental Change), the Board of Directors shall make appropriate
adjustments to each to account for any adjustment to the Conversion Rate that
becomes effective, or any event requiring an adjustment to the Conversion Rate
where the Ex-Dividend Date of the event occurs, at any time during the period
when the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion
Values or the Daily Settlement Amounts are to be calculated.


 


Section 14.06.  Shares to Be Fully Paid.  The Company shall provide, free from preemptive
rights, out of its authorized but unissued shares or shares held in treasury,
sufficient shares of Common Stock to provide for conversion of the Notes from
time to time as such Notes are presented for conversion (assuming that at the
time of computation of such number of shares, all such Notes would be converted
by a single Holder and that Physical Settlement is applicable).


 


Section 14.07.  Effect of Recapitalizations,
Reclassifications and Changes of the Common Stock.


 


(a)        In
the case of:


 


(i)            any recapitalization, reclassification or change of the Common Stock
(other than changes resulting from a subdivision or combination),


 


(ii)           any consolidation, merger or combination involving the Company,


 


(iii)          any sale, lease or other transfer to a third party of the consolidated
assets of the Company and the Company’s Subsidiaries (excluding a pledge of
securities issued by any of the Company’s Subsidiaries) substantially as an
entirety or


 


(iv)          any statutory share exchange,


 


in each case, as a result of which the Common Stock
would be converted into, or exchanged for, stock, other securities, other
property or assets (including cash or any combination thereof) (any such event,
a “Merger Event”), then, at and after the
effective time of such Merger Event, the right to convert each $1,000 principal
amount of Notes shall be changed into a right to convert such principal amount
of Notes into the kind and amount of shares of stock, other securities or other
property or assets (including cash or any combination thereof) that a holder of
a number of shares of Common Stock equal to the Conversion Rate immediately
prior to such Merger Event would have owned or been entitled to receive (the “Reference Property”, with each “unit of
Reference Property” meaning the kind and amount of Reference
Property that a holder of one


 


70






 












 


share of Common Stock is entitled to receive) upon
effectiveness of such Merger Event and, prior to or at the effective time of
such Merger Event, the Company or the successor or purchasing Person, as the
case may be, shall execute with the Trustee a supplemental indenture permitted
under Section 10.01(f) providing for such change in the right to
convert each $1,000 principal amount of Notes; provided,
however, that at and after the effective
time of the Merger Event (A) the Company shall continue to have the right
to determine the form of consideration to be paid or delivered, as the case may
be, upon conversion of Notes in accordance with, and subject to, Section 14.02
and (B) (I) any amount payable in cash upon conversion of the Notes
in accordance with Section 14.02 shall continue to be payable in cash, (II) any
shares of Common Stock that the Company would have been required to deliver
upon conversion of the Notes in accordance with Section 14.02 shall
instead be deliverable in the amount and type of Reference Property that a
holder of that number of shares of Common Stock would have been entitled to
receive in such Merger Event and (III) the Daily VWAP shall be calculated
based on the value of a unit of Reference Property.


 


If the Merger Event
causes the Common Stock to be converted into, or exchanged for, the right to
receive more than a single type of consideration (determined based in part upon
any form of stockholder election), then (i) the Reference Property into
which the Notes will be convertible shall be deemed to be the weighted average
of the types and amounts of consideration received by the holders of Common
Stock that affirmatively make such an election, and (ii) the unit of
Reference Property for purposes of the immediately preceding paragraph shall
refer to the consideration referred to in clause (i) attributable to one
share of Common Stock.  If the holders
receive only cash in such Merger Event, then for all conversions that occur
after the effective date of such Merger Event (x) the consideration due
upon conversion of each $1,000 principal amount of Notes shall be solely cash
in an amount equal to the Conversion Rate in effect on the Conversion Date (as
may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the price paid per share of Common Stock in
such Merger Event and (y) the Company shall satisfy the Conversion
Obligation by paying cash to converting Holders on the third Business Day
immediately following the Conversion Date. The Company shall notify Holders,
the Trustee and the Conversion Agent (if other than the Trustee) of such
weighted average as soon as practicable after such determination is made.


 


Such supplemental
indenture described in the second immediately preceding paragraph shall provide
for adjustments that shall be as nearly equivalent as is possible to the
adjustments provided for in this Article 14.  If, in the case of any Merger Event, the
Reference Property includes shares of stock, securities or other property or
assets (including cash or any combination thereof) of a Person other than the
successor or purchasing corporation, as the case may be, in such Merger Event,
then such supplemental indenture shall also be executed by such other Person
and shall contain such additional provisions to protect the interests of the
Holders of the Notes as the Board of Directors shall reasonably consider
necessary by reason of the foregoing, including to the extent required by the
Board of Directors and practicable the provisions providing for the purchase
rights set forth in Article 15.


 


(b)        In
the event the Company shall execute a supplemental indenture pursuant to
subsection (a) of this Section 14.07, the Company shall promptly file
with the Trustee an Officers’ Certificate briefly stating the reasons therefore,
the kind or amount of cash, securities or property or asset that will comprise
the Reference Property after any such Merger Event, any 


 


71

















 


adjustment to be made
with respect thereto and that all conditions precedent have been complied with,
and shall promptly mail notice thereof to all Holders.  The Company shall cause notice of the
execution of such supplemental indenture to be mailed to each Holder, at its
address appearing on the Note Register provided for in this Indenture, within
20 days after execution thereof.  Failure
to deliver such notice shall not affect the legality or validity of such
supplemental indenture.


 


(c)        The
Company shall not become a party to any Merger Event unless its terms are
consistent with this Section 14.07. 
None of the foregoing provisions shall affect the right of a holder of
Notes to convert its Notes into cash, shares of Common Stock or a combination
of cash and shares of Common Stock, as applicable, as set forth in Section 14.01
and Section 14.02 prior to the effective date of such Merger Event.


 


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


 


(e)        In
connection with any Merger Event, the Initial Dividend Threshold shall be
subject to adjustment as described in clause (i), clause (ii) or clause (iii) below,
as the case may be.


 


(i)            In the case of a Merger Event in which the Reference Property
(determined, as appropriate, pursuant to subsection (a) above and
excluding any dissenters’ appraisal rights) is composed entirely of shares of
common stock (the “Merger Common Stock”),
the Initial Dividend Threshold at and after the effective time of such Merger
Event will be equal to (x) the Initial Dividend Threshold immediately prior
to the effective time of such Merger Event, divided by (y) the
number of shares of Merger Common Stock that a holder of one share of Common
Stock would receive in such Merger Event (such quotient rounded down to nearest
cent).


 


(ii)           In the case of a Merger Event in which the Reference Property
(determined, as appropriate, pursuant to subsection (a) above and
excluding any dissenters’ appraisal rights) is composed in part of shares of
Merger Common Stock, the Initial Dividend Threshold at and after the effective
time of such Merger Event will be equal to (x) the Initial Dividend
Threshold immediately prior to the effective time of such Merger Event, multiplied by (y) the Merger Valuation Percentage for
such Merger Event (such product rounded down to nearest cent).


 


(iii)          For the avoidance of doubt, in the case of a Merger Event in which the
Reference Property (determined, as appropriate, pursuant to subsection (a) above
and excluding any dissenters’ appraisal rights) is composed entirely of
consideration other than shares of common stock, the Initial Dividend Threshold
at and after the effective time of such Merger Event will be equal to zero.


 


Section 14.08.  Certain Covenants.  (a) The Company covenants that all
shares of Common Stock issued upon conversion of Notes will be fully paid and
non-assessable by the Company and free from all taxes, liens and charges with
respect to the issue thereof.


 


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(b)        The
Company covenants that, if any shares of Common Stock to be provided for the
purpose of conversion of Notes hereunder require registration with or approval
of any governmental authority under any federal or state law before such shares
may be validly issued upon conversion, the Company will, to the extent then
permitted by the rules and interpretations of the Commission, secure such
registration or approval, as the case may be.


 


(c)        The
Company further covenants that if at any time the Common Stock shall be listed
on any national securities exchange or automated quotation system the Company
will list and keep listed, so long as the Common Stock shall be so listed on
such exchange or automated quotation system, any Common Stock issuable upon
conversion of the Notes.


 


Section 14.09.  Responsibility of Trustee.  The Trustee and any other Conversion Agent
shall not at any time be under any duty or responsibility to any Holder to
determine the Conversion Rate (or any adjustment thereto) or whether any facts
exist that may require any adjustment (including any increase) of the
Conversion Rate, or with respect to the nature or extent or calculation of any
such adjustment when made, or with respect to the method employed, or herein or
in any supplemental indenture provided to be employed, in making the same.  The Trustee and any other Conversion Agent
shall not be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities, property or cash
that may at any time be issued or delivered upon the conversion of any Note;
and the Trustee and any other Conversion Agent make no representations with
respect thereto.  Neither the Trustee nor
any Conversion Agent shall be responsible for any failure of the Company to
issue, transfer or deliver any shares of Common Stock or stock certificates or
other securities or property or cash upon the surrender of any Note for the
purpose of conversion or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article.  Without limiting the generality of the
foregoing, neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 14.07 relating
either to the kind or amount of shares of stock or securities or property
(including cash) receivable by Holders upon the conversion of their Notes after
any event referred to in such Section 14.07 or to any adjustment to be
made with respect thereto, but, subject to the provisions of Section 7.01,
may accept (without any independent investigation) as conclusive evidence of
the correctness of any such provisions, and shall be protected in relying upon,
the Officers’ Certificate (which the Company shall be obligated to file with
the Trustee prior to the execution of any such supplemental indenture) with
respect thereto.  Neither the Trustee nor
the Conversion Agent shall be responsible for determining whether any event
contemplated by Section 14.01(b) has occurred that makes the Notes
eligible for conversion or no longer eligible therefor until the Company has
delivered to the Trustee and the Conversion Agent the notices referred to in Section 14.01(b) with
respect to the commencement or termination of such conversion rights, on which
notices the Trustee and the Conversion Agent may conclusively rely, and the
Company agrees to deliver such notices to the Trustee and the Conversion Agent
immediately after the occurrence of any such event or at such other times as
shall be provided for in Section 14.01(b).


 


Section 14.10.  Notice to Holders Prior to
Certain Actions.  In case of
any:


 


(a)        action
by the Company or one of its Subsidiaries that would require an adjustment in
the Conversion Rate pursuant to Section 14.04 or Section 14.11;


 


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(b)        Merger
Event; or


 


(c)        voluntary
or involuntary dissolution, liquidation or winding-up of the Company or any of
its Subsidiaries;


 


then, in each case (unless notice of such event is
otherwise required pursuant to another provision of this Indenture), the
Company shall cause to be filed with the Trustee and the Conversion Agent (if
other than the Trustee) and to be mailed to each Holder at its address
appearing on the Note Register, as promptly as possible but in any event at
least 20 days prior to the applicable date hereinafter specified, a notice
stating (i) the date on which a record is to be taken for the purpose of
such action by the Company or one of its Subsidiaries or, if a record is not to
be taken, the date as of which the holders of Common Stock of record are to be
determined for the purposes of such action by the Company or one of its
Subsidiaries, or (ii) the date on which such Merger Event, 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 Merger Event, dissolution, liquidation or
winding-up.  Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such action
by the Company or one of its Subsidiaries, Merger Event, dissolution,
liquidation or winding-up.


 


Section 14.11.  Stockholder Rights Plans.  To the extent that the Company has a rights
plan in effect upon conversion of the Notes, each share of Common Stock, if
any, issued upon such conversion shall be entitled to receive the appropriate
number of rights, if any, and the certificates representing the Common Stock
issued upon such conversion shall bear such legends, if any, in each case as
may be provided by the terms of any such stockholder rights plan, as the same
may be amended from time to time. If at the time of conversion, however, the
rights have separated from the shares of Common Stock in accordance with the
provisions of the applicable stockholder rights plan so that the Holders would
not be entitled to receive any rights in respect of Common Stock, if any,
issuable upon conversion of the Notes, the Conversion Rate shall be adjusted at
the time of separation as if the Company distributed to all or substantially
all holders of Common Stock shares of Capital Stock of the Company, evidences
of its indebtedness, other assets or property or rights, options or warrants to
acquire its Capital Stock or other securities as provided in Section 14.04(c),
subject to readjustment in the event of the expiration, termination or
redemption of such rights.


 


Section 14.12.  Limit on Issuance of Shares of
Common Stock Upon Conversion. 
Notwithstanding anything to the contrary in this Indenture, if the
Company is required to issue shares of Common Stock upon conversion of the
Notes in excess of limitations imposed by any shareholder approval rules or
listing standards of any national securities exchange that are applicable to
the Company, the Company will, at its option, either obtain stockholder
approval of any issuance of Common Stock upon conversion of the Notes in excess
of such limitations or satisfy the Conversion Obligation related to such
conversions in excess of such limitations solely through Cash Settlement as
described in Section 14.02.


 


Section 14.13.  Exchange in Lieu of
Conversion.   (a) Notwithstanding
anything in this Indenture to the contrary, when a Holder surrenders Notes for
conversion, the Company may, at its election, direct the Conversion Agent in
writing to surrender, on or prior to the Business Day 


 


74

















 


immediately following the applicable Conversion
Date (assuming for purposes of this Section 14.13, and for the purpose of
determining the related Observation Period, that the date such Holder
surrenders such Notes for conversion is the Conversion Date for such Notes),
such Notes to a financial institution designated by the Company (a “Financial Institution”) for exchange in lieu of conversion.


 


(b)        In
order to accept any such Notes surrendered for conversion, the Financial
Institution must agree to pay or deliver, as the case may be, in exchange for
such Notes, cash, shares of Common Stock or a combination of cash and shares of
Common Stock, as applicable, equal to the consideration due upon conversion as
provided in Section 14.02, at the sole option of the Financial Institution
and as is designated to the Conversion Agent by the Company.


 


(c)        By
the close of business on the Business Day immediately following the applicable
Conversion Date, the Company must notify the Holder surrendering Notes for
conversion that it has directed the Financial Institution to make an exchange
in lieu of conversion, and such Financial Institution will be required to
notify the Conversion Agent whether it will pay or deliver, as the case may be,
upon exchange, the cash, shares of Common Stock or a combination of cash and
shares of Common Stock, as applicable, due in respect of such conversion.


 


(d)        If
the Financial Institution accepts any such Notes, it will pay or deliver, as
the case may be, the cash, shares of Common Stock or a combination of cash and
shares of Common Stock, as applicable, if any, to the Conversion Agent and the
Conversion Agent will pay or deliver, as the case may be, such cash, shares of
Common Stock or a combination of cash and shares of Common Stock, as
applicable, to such Holder no later than the third Business Day immediately
following the last Trading Day of the applicable Observation Period (in the
case of Cash Settlement or Combination Settlement) or the third Business Day
immediately following the Conversion Date (in the case of Physical Settlement).
Any Notes exchanged by such Financial Institution will remain outstanding.


 


(e)        If
such Financial Institution agrees to accept any Notes for exchange but does not
timely pay or deliver, as the case may be, the related consideration, or if
such Financial Institution does not accept the Notes for exchange, the Company
will convert such Notes and pay or deliver, as the case may be, the cash, share
of Common Stock or a combination of cash and share of Common Stock, as
applicable, due no later than the third Business Day immediately following the
last Trading Day of the applicable Observation Period (in the case of Cash
Settlement or Combination Settlement) or the third Business Day immediately
following the Conversion Date (in the case of Physical Settlement), pursuant to
Section 14.02 (based on such assumed Conversion Date as described above).


 


The Company’s designation of a Financial
Institution to which the Notes may be submitted for exchange does not require
the Financial Institution to accept any Notes (unless the Financial Institution
has separately made an agreement with the Company).  The Company may, but is not obligated to,
enter into a separate agreement with the designated Financial Institution that
would compensate it for any such transactions.


 


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ARTICLE 15

REPURCHASE OF NOTES AT OPTION OF HOLDERS


 


Section 15.01.  Intentionally Omitted.


 


Section 15.02.  Repurchase  at Option of Holders Upon a Fundamental Change.  (a)  If a Fundamental Change occurs at
any time, each Holder shall have the right, at such Holder’s option, to require
the Company to repurchase for cash any or all of such Holder’s Notes, or any
portion thereof that is equal to $1,000 or an integral multiple of $1,000, on
the date (the “Fundamental Change Repurchase Date”)
specified by the Company that is not less than 20 calendar days or more than 35
calendar days following the date of the Fundamental Change Company Notice at a
repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to but excluding
the Fundamental Change Repurchase Date (the “Fundamental
Change Repurchase Price”), unless the Fundamental Change Repurchase
Date falls after a Regular Record Date but on or prior to the Interest Payment
Date to which such Regular Record Date relates, in which case the Company shall
instead pay the full amount of accrued and unpaid interest to Holders of record
as of such Regular Record Date, and the Fundamental Change Repurchase Price
shall be equal to 100% of the principal amount of Notes to be repurchased
pursuant to this Article 15.


 


(b)        Repurchases
of Notes under this Section 15.02 shall be made, at the option of the
Holder thereof, upon:


 


(i)            delivery to the Paying Agent by a Holder of a duly completed notice (the
“Fundamental Change Repurchase Notice”)
in the form set forth in Attachment 2 to the Form of Note attached hereto
as Exhibit A, if the Notes are Physical Notes, or in compliance with the
Depositary’s procedures for surrendering interests in Global Notes, if the
Notes are Global Notes, in each case on or before the close of business on the
Business Day immediately preceding the Fundamental Change Repurchase Date; and


 


(ii)           delivery of the Notes (together with all necessary endorsements for
transfer), if the Notes are Physical Notes, to the Paying Agent on or before
the close of business on the Business Day immediately preceding the Fundamental
Change Repurchase Date at the Corporate Trust Office of the Paying Agent, or
book-entry transfer of the Notes, if the Notes are Global Notes, on or before
the close of business on the Business Day immediately preceding the Fundamental
Change Repurchase Date in compliance with the procedures of the Depositary, in
each case such delivery being a condition to receipt by the Holder of the
Fundamental Change Repurchase Price therefor.


 


The Fundamental Change Repurchase Notice in respect
of any Notes to be repurchased shall state:


 


(i)            in the case of Physical Notes, the certificate numbers of the Notes to
be delivered for repurchase;


 


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


 


76

















 


(iii)          that the Notes are to be repurchased by the Company pursuant to the
applicable provisions of the Notes and this Indenture;


 


provided,
however, that if the Notes are Global
Notes, the Fundamental Change Repurchase Notice must comply with appropriate
Depositary procedures.


 


Notwithstanding anything herein to the contrary,
any Holder delivering to the Paying Agent the Fundamental Change Repurchase
Notice contemplated by this Section 15.02 shall have the right to
withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any
time prior to the close of business on the Business Day immediately preceding
the Fundamental Change Repurchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 15.03.


 


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


 


(c)        On
or before the 20th calendar day after the occurrence of the effective date of a
Fundamental Change, the Company shall provide to all Holders of Notes and the
Trustee and the Paying Agent (in the case of a Paying Agent other than the
Trustee) a notice (the “Fundamental Change Company
Notice”) of the occurrence of the effective date of the Fundamental
Change and of the repurchase right at the option of the Holders arising as a
result thereof.  Such notice shall be by
first class mail or, in the case of Global Notes, in accordance with the
applicable procedures of the Depositary. 
Each Fundamental Change Company Notice shall specify:


 


(i)            the events causing the Fundamental Change;


 


(ii)           the date of the Fundamental Change;


 


(iii)          the last date on which a Holder may exercise the repurchase right
pursuant to this Article 15;


 


(iv)          the Fundamental Change Repurchase Price;


 


(v)           the Fundamental Change Repurchase Date;


 


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


 


(vii)         if applicable, the Conversion Rate and any adjustments to the Conversion
Rate;


 


(viii)        if
applicable, that the Notes with respect to which a Fundamental Change
Repurchase Notice has been delivered by a Holder may be converted only if the
Holder withdraws the Fundamental Change Repurchase Notice in accordance with
the terms of this Indenture;


 


(ix)          the procedures that Holders must follow to require the Company to
repurchase their Notes.


 


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No failure of the Company to give the foregoing
notices and no defect therein shall limit the Holders’ repurchase rights or
affect the validity of the proceedings for the repurchase of the Notes pursuant
to this Section 15.02.


 


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


 


(d)        Notwithstanding
the foregoing, no Notes may be repurchased by the Company on any date at the
option of the Holders upon a Fundamental Change if the principal amount of the
Notes has been accelerated, and such acceleration has not been rescinded, on or
prior to such date (except in the case of an acceleration resulting from a
Default by the Company in the payment of the Fundamental Change Repurchase
Price with respect to such Notes). The Paying Agent will promptly return to the
respective Holders thereof any Physical Notes held by it during the
acceleration of the Notes (except in the case of an acceleration resulting from
a Default by the Company in the payment of the Fundamental Change Repurchase Price
with respect to such Notes), or any instructions for book-entry transfer of the
Notes in compliance with the procedures of the Depositary shall be deemed to
have been cancelled, and, upon such return or cancellation, as the case may be,
the Fundamental Change Repurchase Notice with respect thereto shall be deemed
to have been withdrawn.


 


Section 15.03.  Withdrawal of Fundamental
Change Repurchase Notice.  (a) 
A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part)
by means of a written notice of withdrawal delivered to the Corporate Trust
Office of the Paying Agent in accordance with this Section 15.03 at any
time prior to the close of business on the Business Day immediately preceding
the Fundamental Change Repurchase Date, specifying:


 


(i)            the principal amount of the Notes with respect to which such notice of
withdrawal is being submitted,


 


(ii)           if Physical Notes have been issued, the certificate number of the Note
in respect of which such notice of withdrawal is being submitted, and


 


(iii)          the principal amount, if any, of such Note that remains subject to the
original Fundamental Change Repurchase Notice, which portion must be in
principal amounts of $1,000 or an integral multiple of $1,000;


 


provided,
however, that if the Notes are Global
Notes, the notice must comply with appropriate procedures of the Depositary.


 


Section 15.04.  Deposit of Fundamental Change
Repurchase Price.  (a) 
The Company will deposit with the Trustee (or other Paying Agent appointed by
the Company, or if the Company is acting as its own Paying Agent, set aside,
segregate and hold in trust as provided in Section 4.04) on or prior to
11:00 a.m., New York City time, on the Fundamental Change Repurchase Date
an amount of money sufficient to repurchase all of the Notes to be repurchased
at the appropriate Fundamental Change Repurchase Price.  Subject to receipt of funds and/or Notes by
the Trustee (or other Paying Agent appointed by the Company), payment for Notes



 


78

















 


surrendered for repurchase (and not withdrawn prior
to the close of business on the Business Day immediately preceding the
Fundamental Change Repurchase Date) will be made on the later of (i) the
Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions in Section 15.02)
and (ii) the time of book-entry transfer or the delivery of such Note to
the Trustee (or other Paying Agent appointed by the Company) by the Holder
thereof in the manner required by Section 15.02 by mailing checks for the
amount payable to the Holders of such Notes entitled thereto as they shall
appear in the Note Register; provided, however, that payments to the Depositary shall be made by
wire transfer of immediately available funds to the account of the Depositary
or its nominee.  The Trustee shall,
promptly after such payment and upon written demand by the Company, return to
the Company any funds in excess of the Fundamental Change Repurchase Price.


 


(b)        If
by 11:00 a.m. New York City time, on the Fundamental Change Repurchase
Date, the Trustee (or other Paying Agent appointed by the Company) holds money
sufficient to make payment on all the Notes or portions thereof that are to be
repurchased on such Fundamental Change Repurchase Date, then (i) such
Notes will cease to be outstanding, (ii) interest will cease to accrue on
such Notes (whether or not book-entry transfer of the Notes has been made or
the Notes have been delivered to the Trustee or Paying Agent) and (iii) all
other rights of the Holders of such Notes will terminate (other than the right
to receive the Fundamental Change Repurchase Price).


 


(c)        Upon
surrender of a Note that is to be repurchased in part pursuant to Section 15.02,
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder a new Note in an authorized denomination equal in principal amount to
the unrepurchased portion of the Note surrendered.


 


Section 15.05.  Covenant to Comply with
Applicable Laws Upon Repurchase of Notes.  In connection with any repurchase offer, the
Company will, if required:


 


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


 


(b)        file
a Schedule TO or any successor or similar schedule; and


 


(c)        otherwise
comply with all federal and state securities laws in connection with any offer
by the Company to repurchase the Notes;


 


in each case, so as to permit the rights and
obligations under this Article 15 to be exercised in the time and in the
manner specified in this Article 15.


 


ARTICLE 16

NO REDEMPTION


 


Section 16.01.  No Redemption.  The Notes shall not be redeemable by the
Company prior to Maturity, and no sinking fund is provided for the Notes.


 


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ARTICLE 17

MISCELLANEOUS PROVISIONS


 


Section 17.01.  Provisions Binding on Company’s
Successors.  All the
covenants, stipulations, promises and agreements of the Company contained in
this Indenture shall bind its successors and assigns whether so expressed or
not.


 


Section 17.02.  Official Acts by Successor
Corporation.  Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or Officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation or other entity that shall at the time be the lawful
sole successor of the Company.


 


Section 17.03.  Addresses for Notices, Etc.  Any notice or demand that by any provision of
this Indenture is required or permitted to be given or served by the Trustee or
by the Holders on the Company shall be deemed to have been sufficiently given
or made, for all purposes if given or served by being deposited postage prepaid
by registered or certified mail in a post office letter box addressed (until
another address is filed by the Company with the Trustee) to American Equity
Investment Life Holding Company, P.O. Box 71216, Des Moines, IA
50325, Attention: General Counsel.  Any
notice, direction, request or demand hereunder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
served by being deposited postage prepaid by registered or certified mail in a
post office letter box addressed to the Corporate Trust Office.


 


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


 


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


 


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


 


In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice to Holders by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder.


 


Section 17.04.  Governing Law.  THIS INDENTURE AND EACH NOTE, AND ANY CLAIM,
CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH
NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).


 


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Section 17.05.  Evidence of Compliance with
Conditions Precedent; Certificates and Opinions of Counsel to Trustee.  Upon any application or demand by the Company
to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall, if requested by the Trustee, furnish to the
Trustee an Officers’ Certificate stating that such action is permitted by the
terms of this Indenture and all conditions precedent have been complied with.


 


Each Officers’ Certificate provided for by or on
behalf of the Company in this Indenture and delivered to the Trustee with
respect to compliance with this Indenture (other than the Officers’
Certificates provided for in Section 4.08) shall include (a) a
statement that the Person making such certificate is familiar with the
requested action and this Indenture; (b) a brief statement as to the
nature and scope of the examination or investigation upon which the statement
contained in such certificate is based; (c) a statement that, in the
judgment of such person, he or she has made such examination or investigation
as is necessary to enable him or her to express an informed judgment as to
whether or not such action is permitted by this Indenture; and (d) a
statement as to whether or not, in the judgment of such Person, such action is
permitted by this Indenture.


 


Notwithstanding anything to the contrary in this Section 17.05,
if any provision in this Indenture specifically provides that the Trustee shall
or may receive an Opinion of Counsel in connection with any action to be taken
by the Trustee or the Company hereunder, the Trustee shall be entitled to, or
entitled to request, such Opinion of Counsel.


 


Section 17.06.  Legal Holidays.  In any case where any Interest Payment Date,
Fundamental Change Repurchase Date, Conversion Date or Maturity Date is not a
Business Day, then any action to be taken on such date need not be taken on
such date, but may be taken on the next succeeding Business Day with the same
force and effect as if taken on such date, and no interest shall accrue in
respect of the delay.


 


Section 17.07.  No Security Interest Created.  Nothing in this Indenture or in the Notes,
expressed or implied, shall be construed to constitute a security interest
under the Uniform Commercial Code or similar legislation, as now or hereafter
enacted and in effect, in any jurisdiction.


 


Section 17.08.  Benefits of Indenture.  Nothing in this Indenture or in the Notes,
expressed or implied, shall give to any Person, other than the parties hereto,
any Paying Agent, any Conversion Agent, any authenticating agent, any Note
Registrar and their successors hereunder or the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.


 


Section 17.09.  Table of Contents, Headings, Etc.  The table of contents and the titles and
headings of the articles and sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof, and
shall in no way modify or restrict any of the terms or provisions hereof.


 


Section 17.10.  Authenticating Agent.  The Trustee may appoint an authenticating
agent that shall be authorized to act on its behalf and subject to its
direction in the authentication and delivery of Notes in connection with the
original issuance thereof and transfers and exchanges of 


 


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Notes hereunder, including under Section 2.04,
Section 2.05, Section 2.06, Section 2.07, Section 10.04 and
Section 15.04 as fully to all intents and purposes as though the
authenticating agent had been expressly authorized by this Indenture and those
Sections to authenticate and deliver Notes. 
For all purposes of this Indenture, the authentication and delivery of
Notes by the authenticating agent shall be deemed to be authentication and
delivery of such Notes “by the Trustee” and a certificate of authentication
executed on behalf of the Trustee by an authenticating agent shall be deemed to
satisfy any requirement hereunder or in the Notes for the Trustee’s certificate
of authentication.  Such authenticating
agent shall at all times be a Person eligible to serve as trustee hereunder
pursuant to Section 7.08.


 


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


 


Any authenticating agent may at any time resign by
giving written notice of resignation to the Trustee and to the Company.  The Trustee may at any time terminate the
agency of any authenticating agent by giving written notice of termination to
such authenticating agent and to the Company. 
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any authenticating agent shall cease to be eligible
under this Section, the Trustee may appoint a successor authenticating agent
(which may be the Trustee), shall give written notice of such appointment to
the Company and shall mail notice of such appointment to all Holders as the
names and addresses of such Holders appear on the Note Register.


 


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


 


The provisions of Section 7.02, Section 7.03,
Section 7.04, Section 8.03 and this Section 17.10 shall be
applicable to any authenticating agent.


 


If an authenticating agent is appointed pursuant to
this Section, the Notes may have endorsed thereon, in addition to the Trustee’s
certificate of authentication, an alternative certificate of authentication in
the following form:


 


	
   

  	
  ,

  	
   

  
	
  as Authenticating Agent, certifies that this is
  one of the Notes described in the within-named Indenture.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Authorized Officer

  	
   

  
				



 


82

















 


Section 17.11.  Execution in Counterparts.  This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts
shall together constitute but one and the same instrument.


 


Section 17.12.  Severability.  In the event any provision of this Indenture
or in the Notes shall be invalid, illegal or unenforceable, then (to the extent
permitted by law) the validity, legality or enforceability of the remaining
provisions shall not in any way be affected or impaired.


 


Section 17.13.  Waiver of Jury Trial.  EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.


 


Section 17.14.  Force Majeure.  In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations
hereunder arising out of or caused by, directly or indirectly, forces beyond
its control, including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it
being understood that the Trustee shall use reasonable efforts that are
consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.


 


Section 17.15.  Calculations.  Except as otherwise provided herein, the
Company shall be responsible for making all calculations called for under the
Notes.  These calculations include, but
are not limited to, determinations of the Last Reported Sale Prices of the
Common Stock, accrued interest payable on the Notes and the Conversion Rate of the
Notes.  The Company shall make all these
calculations in good faith and, absent manifest error, the Company’s
calculations shall be final and binding on Holders of Notes.  The Company shall provide a schedule of its
calculations to each of the Trustee and the Conversion Agent, and each of the
Trustee and Conversion Agent is entitled to rely conclusively upon the accuracy
of the Company’s calculations without independent verification.  The Trustee will forward the Company’s
calculations to any Holder of Notes upon the request of that Holder at the sole
cost and expense of the Company.


 


83

















 


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


 


	
   

  	
  AMERICAN EQUITY
  INVESTMENT LIFE HOLDING COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John M. Matovina

  
	
   

  	
   

  	
  Name:  John
  M. Matovina

  
	
   

  	
   

  	
  Title: Chief Financial Officer and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joshua Hahn

  
	
   

  	
   

  	
  Name: Joshua Hahn

  
	
   

  	
   

  	
  Title: Assistant Vice President

  



 






 












 


EXHIBIT A


 


[FORM OF FACE OF NOTE]


 


[INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]


 


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


 


[INCLUDE FOLLOWING LEGEND IF A RESTRICTED
SECURITY]


 


[THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE
UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
ACQUIRER:


 


(1) REPRESENTS THAT IT AND ANY ACCOUNT
FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING
OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT
DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND


 


(2) AGREES FOR THE BENEFIT OF THE
COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS
SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER
OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY
SUCCESSOR PROVISION THERETO, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW, EXCEPT:


 


(A) TO AMERICAN
EQUITY INVESTMENT LIFE HOLDING COMPANY (THE “COMPANY”) OR ANY SUBSIDIARY
THEREOF, OR


 


(B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR


 


A-1

















 


(C) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR


 


(D) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.


 


PRIOR TO THE REGISTRATION OF ANY TRANSFER IN
ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE
RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER
EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE
PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE
AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.


 


NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE
SECURITIES ACT) OF THE COMPANY OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED
IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY DURING THE THREE
IMMEDIATELY PRECEDING MONTHS MAY PURCHASE OR OTHERWISE ACQUIRE THIS NOTE
OR A BENEFICIAL INTEREST HEREIN.]


 


A-2

















 


AMERICAN EQUITY INVESTMENT LIFE HOLDING
COMPANY

3.50% Convertible Senior Note due 2015


 


	
  No. 1

  	
   

  	
  Initially $200,000,000

  



 


CUSIP No. 025676 AJ6


 


AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY, a
corporation duly organized and validly existing under the laws of the State of
Iowa (the “Company,” which term includes any
successor corporation or other entity under the Indenture referred to on the
reverse hereof), for value received hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum as set forth in the “Schedule of
Exchanges of Notes” attached hereto, which amount, taken together with the
principal amounts of all other outstanding Notes, shall not, unless permitted
by the Indenture, exceed $200,000,000 in aggregate at any time, in accordance
with the rules and procedures of the Depositary, on September 15,
2015, and interest thereon as set forth below.


 


This Note shall bear interest at the rate of 3.50%
per year from September 22, 2010, or from the most recent date to which
interest had been paid or provided for to, but excluding, the next scheduled
Interest Payment Date until September 15, 2015.  Interest is payable semi-annually in arrears
on each March 15 and September 15, commencing on March 15, 2011,
to Holders of record at the close of business on the preceding March 1 and
September 1 (whether or not such day is a Business Day),
respectively.  Accrued interest on the
Notes shall be computed on the basis of a 360-day year composed of twelve
30-day months (other than Additional Interest payable pursuant to Section 4.06(d) and
Section 4.06(e), which will accrue immediately upon the requirement to pay
such Additional Interest as described in Section 4.06(d) and Section 4.06(e)).


 


Additional Interest will be payable as set forth in
Section 4.06(d), Section 4.06(e) and Section 6.03 of the
within-mentioned Indenture, and any reference to interest on, or in respect of,
any Note therein shall be deemed to include Additional Interest if, in such
context, Additional Interest is, was or would be payable pursuant to any of
such Section 4.06(d), Section 4.06(e) or Section 6.03 and
any express mention of the payment of Additional Interest in any provision
therein shall not be construed as excluding Additional Interest in those
provisions thereof where such express mention is not made.


 


Any Defaulted Amounts shall accrue interest per
annum at the rate borne by the Notes, subject to the enforceability thereof
under applicable law, from, and including, the relevant payment date to, but
excluding, the date on which such Defaulted Amounts shall have been paid by the
Company, at its election, in accordance with Section 2.03(c) of the
Indenture.


 


The Company shall pay the principal of and interest
on this Note, so long as such Note is a Global Note, in immediately available
funds to the Depositary or its nominee, as the case may be, as the registered
Holder of such Note.  As provided in and
subject to the provisions of the Indenture, the Company shall pay the principal
of any Notes (other than Notes that are Global Notes) at the office or agency
designated by the Company for that purpose. 
The Company has initially designated the Trustee as its Paying Agent and
Note Registrar in respect of the Notes 


 


A-3

















 


and its agency in New York, New York as a place
where Notes may be presented for payment or for registration of transfer.


 


Reference is made to the further provisions of this
Note set forth on the reverse hereof, including, without limitation, provisions
giving the Holder of this Note the right to convert this Note into cash, shares
of Common Stock or a combination of cash and shares of Common Stock, as
applicable on the terms and subject to the limitations set forth in the
Indenture.  Such further provisions shall
for all purposes have the same effect as though fully set forth at this place.


 


This Note, and any claim,
controversy or dispute arising under or related to this Note, shall be
construed in accordance with and governed by the laws of the State of New York
(without regard to the conflicts of laws provisions thereof).


 


In the case of any conflict between this Note and
the Indenture, the provisions of the Indenture shall control and govern.


 


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


 


[Remainder of page intentionally left
blank]


 


A-4

















 


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


 


	
   

  	
  AMERICAN EQUITY
  INVESTMENT LIFE HOLDING COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Dated:


 


	
  TRUSTEE’S CERTIFICATE OF AUTHENTICATION

  	
   

  
	
  U.S. BANK NATIONAL ASSOCIATION

  	
   

  
	
  as Trustee, certifies that this is one of the
  Notes described in the within-named Indenture.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Officer

  	
   

  



 


A-5

















 


[FORM OF REVERSE OF NOTE]


 


AMERICAN EQUITY INVESTMENT LIFE HOLDING
COMPANY

3.50% Convertible Senior Note due 2015


 


This Note is one of a duly authorized issue of
Notes of the Company, designated as its 3.50% Convertible Senior Notes due 2015
(the “Notes”), limited to the aggregate
principal amount of $200,000,000 all issued or to be issued under and pursuant
to an Indenture dated as of September 22, 2010 (the “Indenture”),
between the Company and U.S. Bank National Association (the “Trustee”), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the Trustee,
the Company and the Holders of the Notes. 
Additional Notes may be issued in an unlimited aggregate principal
amount, subject to certain conditions specified in the Indenture.


 


In case an Event of Default, as defined in the
Indenture, shall have occurred and be continuing, the principal of, and
interest on, all Notes may be declared, by either the Trustee or Holders of at
least 25% in aggregate principal amount of Notes then outstanding, and upon
said declaration shall become, due and payable, in the manner, with the effect
and subject to the conditions and certain exceptions set forth in the
Indenture.


 


Subject to the terms and conditions of the
Indenture, the Company will make all payments and deliveries in respect of the
Fundamental Change Repurchase Price and the principal amount on the Maturity
Date, as the case may be, to the Holder who surrenders a Note to a Paying Agent
to collect such payments in respect of the Note.  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.


 


The Indenture contains provisions permitting the
Company and the Trustee in certain circumstances, without the consent of the
Holders of the Notes, and in certain other circumstances, with the consent of
the Holders of not less than a majority in aggregate principal amount of the
Notes at the time outstanding, evidenced as in the Indenture provided, to
execute supplemental indentures modifying the terms of the Indenture and the Notes
as described therein.  It is also
provided in the Indenture that, subject to certain exceptions, the Holders of a
majority in aggregate principal amount of the Notes at the time outstanding may
on behalf of the Holders of all of the Notes waive any past Default or Event of
Default under the Indenture and its consequences.


 


No reference herein to the Indenture and no
provision of this Note or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay (i) the
principal (including the Fundamental Change Repurchase Price, if applicable)
of, (ii) accrued and unpaid interest on and (iii) cash, shares of
Common Stock or a combination of cash and shares of Common Stock, upon
conversion of, this Note at the place, at the respective times, at the rate and
in the lawful money herein prescribed.


 


The Notes are issuable in registered form without
coupons in denominations of $1,000 principal amount and integral multiples
thereof.  At the office or agency of the
Company referred 


 


A-6

















 


to on the face hereof, and in the manner and
subject to the limitations provided in the Indenture, Notes may be exchanged
for a like aggregate principal amount of Notes of other authorized denominations,
without payment of any service charge but, if required by the Company or
Trustee, with payment of a sum sufficient to cover any transfer or similar tax
that may be imposed in connection therewith as a result of the name of the
Holder of the new Notes issued upon such exchange of Notes being different from
the name of the Holder of the old Notes surrendered for such exchange.


 


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


 


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


 


Subject to the provisions of the Indenture, the
Holder hereof has the right, at its option, during certain periods and upon the
occurrence of certain conditions specified in the Indenture, prior to the close
of business on the second Scheduled Trading Day immediately preceding the
Maturity Date, to convert any Notes or portion thereof that is $1,000 or an
integral multiple thereof, into cash, shares of Common Stock or a combination
of cash and shares of Common Stock, as applicable at the Conversion Rate
specified in the Indenture, as adjusted from time to time as provided in the
Indenture.


 


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


 


A-7

















 


ABBREVIATIONS


 


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


 


TEN COM = as tenants in common


 


UNIF GIFT MIN ACT = Uniform Gifts to Minors Act


 


CUST = Custodian


 


TEN ENT = as tenants by the entireties


 


JT TEN  =
joint tenants with right of survivorship and not as tenants in common


 


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


 


A-8






 












 


SCHEDULE A


 


SCHEDULE OF EXCHANGES OF NOTES


 


AMERICAN EQUITY INVESTMENT LIFE HOLDING
COMPANY

3.50% Convertible Senior Notes due 2015


 


The initial principal amount of this Global Note is
TWO HUNDRED MILLION DOLLARS ($200,000,000). 
The following increases or decreases in this Global Note have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount of

  decrease in

  Principal Amount

  of this Global Note

  	
   

  	
  Amount of

  increase in

  Principal Amount

  of this Global Note

  	
   

  	
  Principal Amount

  of this Global Note

  following such

  decrease or

  increase

  	
   

  	
  Signature of

  authorized

  signatory of

  Trustee or

  Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-9

















 


ATTACHMENT 1


 


[FORM OF NOTICE OF CONVERSION]


 


To:  American
Equity Investment Life Holding Company


 


The undersigned registered owner of this Note
hereby exercises the option to convert this Note, or the portion hereof (that
is $1,000 principal amount or an integral multiple thereof) below designated,
into cash, shares of Common Stock or a combination of cash and shares of Common
Stock, as applicable, in accordance with the terms of the Indenture referred to
in this Note, and directs that any cash payable and any shares of Common Stock
issuable and deliverable upon such conversion, together with any cash for any
fractional shares, and any Notes representing any unconverted principal amount
hereof, be issued and delivered to the registered Holder hereof unless a
different name has been indicated below. 
If any shares of Common Stock or any portion of this Note not converted
are to be issued in the name of a Person other than the undersigned, the
undersigned will pay all transfer or similar taxes in accordance with Section
14.02(d) of the Indenture.  Any amount
required to be paid to the undersigned on account of interest accompanies this
Note.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s)

  



 


 


	
   

  	
   

  	
   

  
	
  Signature Guarantee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature(s) must be guaranteed by an eligible
  Guarantor Institution (banks, stock brokers, savings and loan associations
  and credit unions) with membership in an approved signature guarantee
  medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15
  if shares of Common Stock are to be issued, or Notes are to be delivered,
  other than to and in the name of the registered holder.

  	
   

  	
   

  



 


Fill in for
registration of shares if to be issued, and Notes if to


 


1

















 


	
  be delivered, other than to and in the

  	
   

  	
   

  
	
  name of the registered holder:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Name)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Street Address)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (City, State and Zip Code)

  	
   

  	
   

  
	
  Please print name and address

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Principal amount to be converted (if less than
  all): 
  $            ,000

   

  NOTICE: 
  The above signature(s) of the Holder(s) hereof must correspond with
  the name as written upon the face of the Note in every particular without
  alteration or enlargement or any change whatever.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Social Security or Other Taxpayer

  Identification Number

  



 


2






 












 


ATTACHMENT 2


 


[FORM OF FUNDAMENTAL CHANGE REPURCHASE
NOTICE]


 


To: American Equity Investment Life Holding Company


 


The undersigned registered owner of this Note
hereby acknowledges receipt of a notice from American Equity Investment Life
Holding Company (the “Company”) as to
the occurrence of a Fundamental Change with respect to the Company and
specifying the Fundamental Change Repurchase Date and requests and instructs
the Company to pay to the registered holder hereof in accordance with the
applicable provisions of the Indenture referred to in this Note (1) the entire
principal amount of this Note, or the portion thereof (that is $1,000 principal
amount or an integral multiple thereof) below designated, and (2) if such
Fundamental Change Repurchase Date does not fall during the period after a
Regular Record Date and on or prior to the corresponding Interest Payment Date,
accrued and unpaid interest, if any, thereon to, but excluding, such
Fundamental Change Repurchase Date.


 


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


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Social Security or Other Taxpayer

  
	
   

  	
   

  	
  Identification Number

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Principal amount to be repaid (if less than
  all): 
  $            ,000

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NOTICE: 
  The above signature(s) of the Holder(s) hereof must correspond with
  the name as written upon the face of the Note in every particular without
  alteration or enlargement or any change whatever.

  



 


1

















 


ATTACHMENT 3


 


[FORM OF ASSIGNMENT AND TRANSFER]


 


For value received
                                                        
hereby sell(s), assign(s) and transfer(s) unto
                                  
(Please insert social security or Taxpayer Identification Number of assignee)
the within Note, and hereby irrevocably constitutes and appoints
                                          
attorney to transfer the said Note on the books of the Company, with full power
of substitution in the premises.


 


In connection with any transfer of the within Note
occurring prior to the Resale Restriction Termination Date, as defined in the
Indenture governing such Note, the undersigned confirms that such Note is being
transferred:


 


To American Equity Investment Life Holding Company
or a subsidiary thereof; or


 


Pursuant to a registration statement that has
become or been declared effective under the Securities Act of 1933, as amended;
or


 


Pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended; or


 


Pursuant to and in compliance with Rule 144 under
the Securities Act of 1933, as amended, or any other available exemption from the
registration requirements of the Securities Act of 1933, as amended.


 


1

















 


	
  Dated:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature(s)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee

  	
   

  



 


	
  Signature(s) must be guaranteed by an eligible
  Guarantor Institution (banks, stock brokers, savings and loan associations
  and credit unions) with membership in an approved signature guarantee
  medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15
  if Notes are to be delivered, other than to and in the name of the registered
  holder.

  	
   

  



 


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


 


2