Exhibit 4.19


 




 





AMERICAN
EQUITY INVESTMENT LIFE HOLDING COMPANY,


Issuer


 


 


5.25%
Contingent Convertible Senior Notes Due 2024


 










 


INDENTURE


 










 


U.S. Bank
National Association,


Trustee


 


 


December 6,
2004




 





 





















 


CROSS-REFERENCE
TABLE*


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture
  Section

  
	
  310

  	
  (a)(1)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  312

  	
  (a)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
   

  	
  11.03

  
	
   

  	
  (c)

  	
   

  	
   

  	
  11.03

  
	
  313

  	
  (a)

  	
   

  	
   

  	
  7.06

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.06

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
   

  	
  N.A.

  
	
  314

  	
  (a)

  	
   

  	
   

  	
  4.02, 4.03

  
	
   

  	
  (b)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (c)(2)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (c)(3)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (f)

  	
   

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
   

  	
  7.01(b)

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.05

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
   

  	
  7.01(c)

  
	
   

  	
  (e)

  	
   

  	
   

  	
  6.11

  
	
  316

  	
  (a)(1)(A)

  	
   

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  317

  	
  (a)(1)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
   

  	
  N.A.

  
	
  318

  	
  (a)

  	
   

  	
   

  	
  N.A.

  



 










N.A.
means not applicable.


 


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


 


i





















 


TABLE OF CONTENTS


 


	
  ARTICLE 1

  	
   

  
	
  DEFINITIONS
  AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
   

  
	
  Section 1.02.

  	
  Other
  Definitions

  	
   

  
	
  Section 1.03.

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
   

  
	
  Section 1.04.

  	
  Rules of
  Construction

  	
   

  
	
  Section 1.05.

  	
  Acts of Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
   

  
	
  THE
  SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Form and Dating

  	
   

  
	
  Section 2.02.

  	
  Execution and
  Authentication

  	
   

  
	
  Section 2.03.

  	
  Registrar,
  Paying Agent and Conversion Agent

  	
   

  
	
  Section 2.04.

  	
  Paying Agent to
  Hold Money in Trust

  	
   

  
	
  Section 2.05.

  	
  Holder Lists

  	
   

  
	
  Section 2.06.

  	
  Transfer and
  Exchange

  	
   

  
	
  Section 2.07.

  	
  Replacement
  Securities

  	
   

  
	
  Section 2.08.

  	
  Outstanding
  Securities; Determinations of Holders’ Action

  	
   

  
	
  Section 2.09.

  	
  Temporary
  Securities

  	
   

  
	
  Section 2.10.

  	
  Cancellation

  	
   

  
	
  Section 2.11.

  	
  Persons Deemed
  Owners

  	
   

  
	
  Section 2.12.

  	
  Global
  Securities

  	
   

  
	
  Section 2.13.

  	
  CUSIP
  Numbers

  	
   

  
	
  Section 2.14.

  	
  Designation

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
   

  
	
  REDEMPTION AND REPURCHASES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Right
  to Redeem; Notices to Trustee

  	
   

  
	
  Section 3.02.

  	
  Selection
  of Securities to Be Redeemed

  	
   

  
	
  Section 3.03.

  	
  Notice
  of Redemption

  	
   

  
	
  Section 3.04.

  	
  Effect
  of Notice of Redemption

  	
   

  
	
  Section 3.05.

  	
  Deposit
  of Redemption Price

  	
   

  
	
  Section 3.06.

  	
  Securities
  Redeemed in Part

  	
   

  
	
  Section 3.07.

  	
  Sinking
  Fund

  	
   

  
	
  Section 3.08.

  	
  Repurchase
  of Securities at Option of the Holder on Specified Dates

  	
   

  
	
  Section 3.09.

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

  	
   

  



 


ii





















 


	
  Section 3.10.

  	
  Effect
  of Repurchase Notice or Change in Control Repurchase Notice

  	
   

  
	
  Section 3.11.

  	
  Deposit
  of Repurchase Price or Change in Control Repurchase Price

  	
   

  
	
  Section 3.12.

  	
  Securities
  Repurchased in Part

  	
   

  
	
  Section 3.13.

  	
  Covenant
  to Comply with Securities Laws upon Repurchase of Securities

  	
   

  
	
  Section 3.14.

  	
  Repayment
  to the Company

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Payment
  of Securities

  	
   

  
	
  Section 4.02.

  	
  SEC
  and Other Reports

  	
   

  
	
  Section 4.03.

  	
  Compliance
  Certificate; Notice of Default

  	
   

  
	
  Section 4.04.

  	
  Further
  Instruments and Acts

  	
   

  
	
  Section 4.05.

  	
  Maintenance
  of Office or Agency

  	
   

  
	
  Section 4.06.

  	
  Delivery
  of Certain Information

  	
   

  
	
  Section 4.07.

  	
  Liquidated
  Damages

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
   

  
	
  SUCCESSOR CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  When
  the Company May Consolidate, Merge or Transfer Assets

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
   

  
	
  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Events
  of Default

  	
   

  
	
  Section 6.02.

  	
  Acceleration

  	
   

  
	
  Section 6.03.

  	
  Other
  Remedies

  	
   

  
	
  Section 6.04.

  	
  Waiver
  of Past Defaults

  	
   

  
	
  Section 6.05.

  	
  Control
  by Majority

  	
   

  
	
  Section 6.06.

  	
  Limitation
  on Suits

  	
   

  
	
  Section 6.07.

  	
  Rights
  of Holders to Receive Payment and to Convert

  	
   

  
	
  Section 6.08.

  	
  Collection
  Suit by Trustee

  	
   

  
	
  Section 6.09.

  	
  Trustee
  May File Proofs of Claim

  	
   

  
	
  Section 6.10.

  	
  Priorities

  	
   

  
	
  Section 6.11.

  	
  Suits

  	
   

  
	
  Section 6.12.

  	
  Waiver
  of Stay, Extension or Usury Laws

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
   

  
	
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Duties
  of Trustee

  	
   

  
	
  Section 7.02.

  	
  Rights
  of Trustee

  	
   

  



 


iii





















 


	
  Section 7.03.

  	
  Individual
  Rights of Trustee

  	
   

  
	
  Section 7.04.

  	
  Trustee’s
  Disclaimer

  	
   

  
	
  Section 7.05.

  	
  Notice
  of Defaults

  	
   

  
	
  Section 7.06.

  	
  Reports
  by Trustee to Holders

  	
   

  
	
  Section 7.07.

  	
  Compensation
  and Indemnity

  	
   

  
	
  Section 7.08.

  	
  Replacement
  of Trustee

  	
   

  
	
  Section 7.09.

  	
  Successor
  Trustee by Merger Etc

  	
   

  
	
  Section 7.10.

  	
  Eligibility;
  Disqualification

  	
   

  
	
  Section 7.11.

  	
  Preferential
  Collection of Claims Against Company

  	
   

  
	
  Section 7.12.

  	
  Force
  Majeure

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
   

  
	
  DISCHARGE OF INDENTURE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Discharge
  of Liability on Securities

  	
   

  
	
  Section 8.02.

  	
  Repayment
  to the Company

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
   

  
	
  AMENDMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Without
  Consent of Holders

  	
   

  
	
  Section 9.02.

  	
  With
  Consent of Holders

  	
   

  
	
  Section 9.03.

  	
  Compliance
  with Trust Indenture Act

  	
   

  
	
  Section 9.04.

  	
  Revocation
  and Effect of Consents

  	
   

  
	
  Section 9.05.

  	
  Notation
  on or Exchange of Securities

  	
   

  
	
  Section 9.06.

  	
  Trustee
  to Sign Supplemental Indentures

  	
   

  
	
  Section 9.07.

  	
  Effect
  of Supplemental Indentures

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
   

  
	
  CONVERSION OF THE SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Conversion
  Privilege

  	
   

  
	
  Section 10.02.

  	
  Conversion
  Procedure

  	
   

  
	
  Section 10.03.

  	
  Taxes
  on Conversion

  	
   

  
	
  Section 10.04.

  	
  Company
  to Provide Stock

  	
   

  
	
  Section 10.05.

  	
  Adjustment
  of Conversion Price

  	
   

  
	
  Section 10.06.

  	
  No
  Adjustment

  	
   

  
	
  Section 10.07.

  	
  Equivalent
  Adjustments

  	
   

  
	
  Section 10.08.

  	
  Adjustment
  for Tax Purposes

  	
   

  
	
  Section 10.09.

  	
  Notice
  of Adjustment

  	
   

  
	
  Section 10.10.

  	
  Notice
  of Certain Transactions

  	
   

  
	
  Section 10.11.

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

  	
   

  
	
  Section 10.12.

  	
  Trustee’s
  Disclaimer

  	
   

  
	
  Section 10.13.

  	
  Voluntary
  Reduction

  	
   

  
	
  Section 10.14.

  	
  Conversion
  Value of Securities Tendered

  	
   

  
	
  Section 10.15.

  	
  Simultaneous
  Adjustments

  	
   

  
				



 


iv





















 


	
  ARTICLE 11

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Trust
  Indenture Act Controls

  	
   

  
	
  Section 11.02.

  	
  Notices

  	
   

  
	
  Section 11.03.

  	
  Communication
  by Holders with Other Holders

  	
   

  
	
  Section 11.04.

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
   

  
	
  Section 11.05.

  	
  Statements
  Required in Certificate or Opinion

  	
   

  
	
  Section 11.06.

  	
  Separability
  Clause

  	
   

  
	
  Section 11.07.

  	
  Rules
  by Trustee, Paying Agent, Conversion Agent and Registrar

  	
   

  
	
  Section 11.08.

  	
  Legal
  Holidays

  	
   

  
	
  Section 11.09.

  	
  Governing
  Law

  	
   

  
	
  Section 11.10.

  	
  No
  Recourse Against Others

  	
   

  
	
  Section 11.11.

  	
  Successors

  	
   

  
	
  Section 11.12.

  	
  Multiple
  Originals

  	
   

  
	
  Section 11.13.

  	
  Table
  of Contents and Headings

  	
   

  
	
   

  	
   

  
	
  Exhibit
  A

  	
  -

  	
  Form of
  Global Security

  	
   

  
	
  Exhibit
  B

  	
  -

  	
  Transfer
  Certificate

  	
   

  
	
  Schedule A

  	
  -

  	
  Additional
  Shares Table

  	
   

  
					



 


v





















 


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


 


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


 


ARTICLE 1


DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01. Definitions.


 


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


 


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


 


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


 


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


 


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


 


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


 





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Corporate Trust Office” means the office of the Trustee at which at
any time the trust created by this Indenture shall be administered, which
office at the


 


3





















 


date hereof is located at
U.S. Bank National Association, 60 Livingston Avenue EP-MN-WS3C, St. Paul, MN
55107-2292, or such other address as the Trustee may designate from time to
time by notice to the Holders and the Company, or the principal corporate trust
office of any successor Trustee (or such other address as a successor Trustee
may designate from time to time by notice to the Holders and the Company).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Obligations” means all obligations for principal,
premium, interest, penalties, fees, indemnifications, reimbursements, damages
and other liabilities


 


4





















 


payable under the
documentation under which any indebtedness is created, evidenced or secured,
including, in the case of the Securities, Contingent Interest and Liquidated
Damages, if any.


 


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


 


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


 


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


 


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


 


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


 


“Public Acquirer Change in Control” means any transaction described in clause (c)
of the definition of Change in Control where the acquirer, or any entity that
it is a direct or indirect “beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act) of more than 50% of the aggregate ordinary voting power of
all shares of such acquirer’s capital stock that are entitled to vote generally
in the election of directors, but in each case other than the Company, has a
class of common stock traded on a national securities exchange or quoted on the
Nasdaq National Market or which will be so traded or quoted when issued or
exchanged in connection with such Change in Control. Such acquirer’s or other
entity’s class of common stock traded on a national securities exchange or
quoted on the Nasdaq National Market or which will be so traded or quoted when
issued or exchanged in connection with such fundamental change is herein
referred to as “Acquirer Common Stock.”


 


5





















 


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


 


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


 


“SEC” means
the Securities and Exchange Commission.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


6





















 


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


 


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


 


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


 


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


 


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


 


Section 1.02. Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in Section

  
	
   

  	
   

  	
   

  
	
  Acceleration Notice

  	
   

  	
  6.02(a)

  
	
  Accepted Purchased Shares

  	
   

  	
  10.05(f)

  
	
  Act

  	
   

  	
  1.05(a)

  
	
  Agent Members

  	
   

  	
  2.12(e)

  
	
  Authenticating Agent

  	
   

  	
  2.02

  
	
  Change in Control
  Repurchase Date

  	
   

  	
  3.09(a)

  
	
  Change in Control
  Repurchase Price

  	
   

  	
  3.09(a)

  
	
  Change in Control
  Repurchase Notice

  	
   

  	
  3.09(c)

  
	
  Company Change in Control
  Repurchase Notice

  	
   

  	
  3.09(b)

  



 


7





















 


	
  Term

  	
   

  	
  Defined
  in Section

  
	
   

  	
   

  	
   

  
	
  Company Change in Control
  Repurchase Notice

  	
   

  	
  3.09(b)

  
	
  Company Repurchase Notice

  	
   

  	
  3.08(b)

  
	
  Contingent Interest

  	
   

  	
  Exhibit A

  
	
  Contingent Interest
  Average Trading Price

  	
   

  	
  Exhibit A

  
	
  Contingent Interest Period

  	
   

  	
  Exhibit A

  
	
  Conversion Agent

  	
   

  	
  2.03

  
	
  Conversion Date

  	
   

  	
  10.02(a)

  
	
  Conversion Value

  	
   

  	
  10.14(a)

  
	
  Depositary

  	
   

  	
  2.01(b)

  
	
  Determination Date

  	
   

  	
  10.14(b)

  
	
  Divided Threshold Amount

  	
   

  	
  10.05(e)

  
	
  DTC

  	
   

  	
  2.01(b)

  
	
  Event of Default

  	
   

  	
  6.01

  
	
  Ex-Dividend Date

  	
   

  	
  10.01(b)

  
	
  Expiration Time

  	
   

  	
  10.05(d)

  
	
  Global Security

  	
   

  	
  2.01(b)

  
	
  Interest Payment Date

  	
   

  	
  Exhibit A

  
	
  Legal Holiday

  	
   

  	
  11.08

  
	
  Net Share Amount

  	
   

  	
  10.14(b)

  
	
  Net Shares

  	
   

  	
  10.14(b)

  
	
  Offer Expiration Time

  	
   

  	
  10.05(f)

  
	
  Paying Agent

  	
   

  	
  2.03

  
	
  Payment Default

  	
   

  	
  6.01(e)

  
	
  Principal Return

  	
   

  	
  10.14(b)

  
	
  Pre-Dividend Sale Price

  	
   

  	
  10.05(e)

  
	
  Principal Value Conversion

  	
   

  	
  10.01(a)

  
	
  Repurchase Date

  	
   

  	
  3.08(a)

  
	
  Repurchase Notice

  	
   

  	
  3.08(a)

  
	
  Repurchase Price

  	
   

  	
  3.08(a)

  
	
  Purchased Shares

  	
   

  	
  10.05(d)

  
	
  QIB

  	
   

  	
  2.06(e)

  
	
  Quarter

  	
   

  	
  10.01(a)

  
	
  Record Date

  	
   

  	
  Exhibit A

  
	
  Redemption Date

  	
   

  	
  3.01(a)

  
	
  Redemption Price

  	
   

  	
  3.01(a)

  
	
  Registrar

  	
   

  	
  2.03

  
	
  Rule 144A Information

  	
   

  	
  4.06

  
	
  Transfer Restricted
  Securities

  	
   

  	
  2.06(e)

  
	
  Ten Day Average Closing
  Stock Price

  	
   

  	
  10.14(a)

  



 


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


 


8





















 


TIA terms incorporated by
reference in this Indenture have the following meanings:


 


“Commission” means the SEC.


 


“Indenture Securities” means the Securities.


 


“Indenture Security Holder” means a Holder.


 


“Indenture to be Qualified” means this Indenture.


 


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


 


“Obligor” on the indenture securities means the Company.


 


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


 


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


 


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


 


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


 


(c)                          “or” is not exclusive;


 


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


 


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


 


Section 1.05. Acts of Holders.


 


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


 


9





















 


appointing any such agent
shall be sufficient for any purpose of this Indenture and conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section.


 


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


 


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


 


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


 


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


 


10





















 


ARTICLE 2


THE SECURITIES


 


Section 2.01. Form and
Dating.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


11





















 


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


 


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


 


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


 


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


 


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


 


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


 


12





















 


its Subsidiaries may act as
Paying Agent, Registrar, Conversion Agent or co-registrar.


 


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


 


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


 


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


 


13





















 


Section 2.06. Transfer
and Exchange.


 


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


 


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


 


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


 


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


 


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


 


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


 


(d)                        The Registrar shall not be required to make
registrations of transfer or exchange of Securities during any periods
designated in the Securities or in this


 


14





















 


Indenture as periods during
which such registration of transfers and exchanges need not be made.


 


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


 


Any certificate evidencing a
Security (and all securities issued in exchange therefore or substitution
thereof) shall bear the Transfer Restricted Securities Legend, unless (1) such
Security has been sold pursuant to a registration statement that has been
declared effective under the Securities Act (and which continues to be
effective at the time of such transfer) or pursuant to Rule 144 under the
Securities Act or any similar provision then in force, (2) such Security is
eligible for resale pursuant to Rule 144(k) under the Securities Act (or any successor
provision) or (3) otherwise agreed by the Company in writing, with written
notice thereof to the Trustee.


 


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


 


Any
Security (or Security issued in exchange or substitution therefor) as to which
such restrictions on transfer shall have expired in accordance with their terms
or as to conditions for removal of the Transfer Restricted Securities Legend have
been satisfied may, upon surrender of such Security for exchange to the Registrar
in accordance with the provisions of this Section 2.06, be exchanged for 


 


15





















 


a new Security or
Securities, of like tenor and aggregate principal amount, which shall not bear
the Transfer Restricted Securities Legend. If the Transfer Restricted Security
surrendered for exchange is represented by a Global Security bearing a Transfer
Restricted Securities Legend, the principal amount of the Global Security so
legended shall be reduced by the appropriate principal amount and the principal
amount of a Global Security without the Transfer Restricted Securities Legend
shall be increased by an equal principal amount. If a Global Security without
the Transfer Restricted Securities Legend is not then outstanding, the Company
shall execute and the Trustee shall authenticate and deliver a Global Security
without the Transfer Restricted Securities Legend to the Depositary. 


 


Section 2.07. Replacement
Securities. If any mutilated Security is surrendered to the Trustee,
or the Company and the Trustee receive evidence to their satisfaction of the
mutilation, destruction, loss or theft of any Security, and there is delivered
to the Company and the Trustee such security or indemnity, at the expense of
the Holder thereof, as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a protected purchaser (within the meaning of Section 8-303
of the Uniform Commercial Code as adopted in the State of New York), the
Company shall execute, and upon the Company’s written request the Trustee shall
authenticate and deliver, in exchange for any such mutilated Security or in
lieu of any such destroyed, lost or stolen Security, at the expense of the
Holder thereof, a new Security of like tenor and principal amount and bearing a
number not contemporaneously outstanding. 


 


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


 


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


 


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


 


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


 


16





















 


Section 2.08. Outstanding Securities; Determinations
of Holders’ Action. Securities outstanding at any time are all the
Securities authenticated by the Trustee pursuant to this Indenture, except for
those cancelled by it, those delivered to it for cancellation pursuant to Section 2.10
and those described in this Section 2.08 as not outstanding. A Security
does not cease to be outstanding because the Company or any Affiliate of the
Company holds the Security; provided that in determining whether the Holders of
the requisite principal amount of Securities have given or concurred in any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disregarded and deemed
not to be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded; and provided
further that Securities that the Company or an Affiliate offers to purchase or
acquires pursuant to an offer, exchange offer, tender offer or otherwise shall
not be deemed to be owned by the Company or an Affiliate until legal title to
such Securities passes to the Company or such Affiliate, as the case may be.
Subject to the foregoing, only Securities outstanding at the time of such
determination shall be considered in any such determination (including, without
limitation, determinations pursuant to Articles 6 and 9).


 


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


 


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


 


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


 


Section 2.09. Temporary
Securities. Pending the preparation of definitive Securities, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities that are printed, lithographed,


 


17





















 


typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, and with such
appropriate insertions, omissions, substitutions and other variations as the
Officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities.


 


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


 


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


 


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


 


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Section 2.12. Global
Securities.


 


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


 


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


 


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


 


19


















 


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


 


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


 


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


 


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


 


20





















 


numbers. The Company will
promptly notify the Trustee in writing of any change in the CUSIP numbers.


 


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


 


ARTICLE 3


REDEMPTION AND
REPURCHASES


 


Section 3.01. Right to
Redeem; Notices to Trustee.


 


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


 


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


 


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


 


Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall


 


21





















 


notify the Company promptly
of the Securities or portions of Securities to be redeemed.


 


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


 


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


 


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


 


(a)                          the Redemption Date;


 


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


 


(c)                         the current Conversion Price;


 


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


 


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


 


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


 


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


 


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


 


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


 


22





















 


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


 


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


 


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


 


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


 


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


 


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


 


23





















 


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


 


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


 


(a)                         At the option of the Holder, the Company
shall repurchase on December 15, 2011, December 15, 2014 and December 15,
2019 (each, a “Repurchase Date”) all or a portion of the Securities
held by such Holder for cash at a price per Security equal to 100% of the
aggregate principal amount of the Security (the “Repurchase Price”), together
with accrued but unpaid interest (including Contingent Interest and Liquidated
Damages, if any) thereon, up to but not including the Repurchase Date.


 


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


 


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


 


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


 


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


 


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


 


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


 


24





















 


Agent
shall conform in all respects to the description thereof in the related
Repurchase Notice.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


25





















 


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


 


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


 


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


 


(vii)                            the conversion rights of the Securities;


 


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


 


(ix)                                 the CUSIP number of the Securities; and


 


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


 


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


 


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


 


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


 


(a)                           If at any time that Securities remain
outstanding there shall have occurred a Change in Control, Securities shall be
repurchased by the Company, at the option of the Holder thereof; at a price in
cash (the “Change in Control Repurchase Price”) equal to 100% of the aggregate
principal amount of such Securities plus accrued but unpaid interest (including
Contingent Interest and Liquidated Damages, if any) thereon, up to but not
including the date (the “Change in Control
Repurchase Date”) fixed
by the Company that is not less


 


26





















 


than 30 days nor more than
45 days after the date the Company Change in Control Repurchase Notice (as
defined below) is given, subject to satisfaction by or on behalf of the Holder
of the requirements set forth in Section 3.09(c); provided that if the Change in Control
Repurchase Date is between the close of business on an interest record date and
the opening of business on the related Interest Payment Date, accrued but
unpaid interest (including Contingent Interest and Liquidated Damages, if any)
will be payable to the Holders in whose names the Securities are registered at
the close of business on the relevant interest record date.


 


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


 


(i)                                     the Change in Control Repurchase Date;


 


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


 


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


 


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


 


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


 


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


 


27





















 


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


 


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


 


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


 


(x)                                      the CUSIP number of the Securities; and


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(d)                                 Not more than 30 days after the occurrence of
a Change in Control, the Company shall use its commercially reasonable efforts
to either (i) obtain the consents under all existing indebtedness required to
permit the repurchase of the Securities pursuant to any Company Change in
Control Repurchase Notice or (ii)  repay
in full all existing indebtedness and terminate all commitments under all existing
indebtedness, in each case the terms of which would prohibit the repurchase of
the Securities pursuant to any Company Change in Control Repurchase Notice;
provided that if no Holders deliver a Change in Control Repurchase Notice prior
to such date or if the Company shall have satisfied its obligations to
repurchase the Securities of all Holders that have submitted a Change in
Control Repurchase Notice, the Company shall be deemed to have satisfied the
requirements of this Section 3,09(d). 


 


Section 3.10. Effect
of Repurchase Notice or Change in Control  Repurchase Notice. Upon receipt by the Paying Agent of a
Repurchase Notice or Change in Control Repurchase Notice, the Holder of the
Security in respect of which such Repurchase Notice or Change in Control Repurchase
Notice, as the case may be, was given shall (unless such Repurchase Notice or
Change in Control Repurchase Notice is withdrawn as specified in the following
two paragraphs) thereafter be entitled to receive solely the Repurchase Price
or 


 


29





















 


 


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


 


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


 


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


 


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


 


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


 


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


 


30





















 


 


withdrawn in compliance with
this Indenture, or (y) held by it during the continuance of an Event of Default
(other than a default in the payment of the Repurchase Price) in which case,
upon such return, the Repurchase Notice with respect thereto shall be deemed to
have been withdrawn.


 


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


 


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


 


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


 


Section 3.14. Repayment
to the Company. To the extent that the aggregate amount of cash
deposited by the Company pursuant to Section 3.11  exceeds the aggregate Repurchase Price or
Change in Control Repurchase Price, 


 


31





















 


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


 


ARTICLE 4


COVENANTS


 


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


 


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


 


Section 4.02. SEC and
Other Reports. The Company shall file with the Trustee, within 15
days after it files such annual and quarterly reports, information, documents
and other reports with the SEC, copies of its annual report and the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act. In the event the Company is at any time no longer subject
to the reporting requirements of Section 13 or 15(d) of the Exchange Act,
it shall continue to provide the Trustee with reports containing substantially
the same information as would have been required to be filed with the SEC had
the Company continued to have been subject to such reporting requirements. In
such event, such reports shall be provided to the Trustee at the


 


32





















 


times the Company would have
been required to provide reports had it continued to have been subject to such
reporting requirements. In addition, the Company shall comply with the other
provisions of TIA Section 314(a).


 


Section 4.03. Compliance
Certificate; Notice of Default.


 


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


 


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


 


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


 


Section 4.05. Maintenance
of Office or Agency. The Company will maintain in the Borough of
Manhattan, The City of New York, an office or agency of the Trustee, Registrar,
Paying Agent and Conversion Agent where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration
of transfer, exchange, repurchase, redemption or conversion and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Trustee’s office located at U.S. Bank National
Association, 60 Livingston Avenue, EP-MN-WS3C, St. Paul, MN 55107-2292, shall
initially be such office or agency where Securities may be surrendered for
payment, and the Corporate Trust Office shall initially be such office or
agency for all of the other aforesaid purposes. The Company shall give prompt
written notice to the Trustee of the location, and of any change in the
location, of any such office or agency (other than a change in the location of
the office or agency of the Trustee). If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof; such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in Section 11.02.
The


 


33





















 


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


 


Section 4.06. Delivery of Certain
Information. At any time when the Company is not subject to Section 13
or 15(d) of the Exchange Act, upon the request of a Holder or any Beneficial
Owner of Securities or holder or Beneficial Owner of Common Stock delivered
upon conversion thereof, the Company will promptly furnish or cause to be
furnished Rule 144A Information (as defined below) to such Holder or any
Beneficial Owner of Securities or holder or Beneficial Owner of Common Stock delivered
upon conversion thereof or to a prospective purchaser of any such security
designated by any such holder, as the case may be, to the extent required to
permit compliance by such Holder or holder with Rule 144A under the Securities
Act in connection with the resale of any such security. “Rule 144A
Information” shall be such information as is specified pursuant to
Rule l44A(d)(4) under the Securities Act or any successor provisions. Whether a
Person is a Beneficial Owner shall be determined by the Company to the Company’s
reasonable satisfaction.


 


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


 


Section 4.08.
Calculation of Tax Original Issue Discount. At
the request of the Trustee, the Company shall file with the Trustee promptly at
the end of each calendar year (i) a written notice specifying the amount of Tax
Original Issue Discount (including daily rates and accrual periods) accrued on
the Notes as of the end of such year and (ii) such other specific information
relating to such Tax Original Issue Discount as may then be reasonably
requested by the Trustee and relevant under the Internal Revenue Code of 1986,
as amended from time to time, or the Treasury regulations promulgated
thereunder.


 


ARTICLE 5


SUCCESSOR CORPORATION


 


Section 5.01. When the
Company May Consolidate, Merge or Transfer Assets. The Company shall
not consolidate with or merge with or into any other Person or sell, lease
exchange or otherwise transfer (in one transaction or a series


 


34





















 


of related transactions) all
or substantially all of its properties and assets to any other Person, unless:


 


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


 


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


 


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


 


For
purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of the properties and assets of one or more Subsidiaries (other than
to the Company or another Subsidiary of the Company), which, if such assets
were owned by the Company would constitute all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company. The successor
Person formed by such consolidation or into which the Company is merged or the
successor Person to which such sale, lease, exchange or other transfer is made
shall succeed to, and (except in the case of a lease) be substituted for, and
may exercise every right and power of; the Company under this Indenture with
the same effect as if such successor had been named as the Company herein; and
thereafter, except in the case of a lease and except for obligations the
Company may have under a supplemental indenture pursuant to Section 9.06,
the Company shall be discharged from all obligations and covenants under this
Indenture and the Securities. Subject to Section 9.06, the Company, the
Trustee and the successor Person shall enter into a supplemental indenture to
evidence the succession and substitution of such successor Person and such
discharge and release of the Company, as applicable.


 


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ARTICLE 6


DEFAULTS AND REMEDIES


 


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


 


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


 


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


 


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


 


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


 


(e)         a default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any indebtedness of
the Company or any of its Subsidiaries, or the payment of which is guaranteed
by the Company or any of its Subsidiaries, whether such indebtedness now exists
or is created after the issuance of the Securities, which default (i) is caused
by a failure to pay principal of or premium, if any, or interest on such
indebtedness after any applicable grace period provided in such indebtedness on
the date of such default (a “Payment Default”) or (ii) results
in the acceleration of such indebtedness prior to its express maturity and, in
either such case, the principal amount of such indebtedness, together with the
principal amount of any other such indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates at
least $10,000,000; provided that
if any such default is cured or waived or any such acceleration rescinded, or such
indebtedness is repaid, within a period of 45 days from the continuation of
such default beyond the applicable grace period or the


 


36





















 


occurrence
of such acceleration, as the case may be, such event of default and any
consequential acceleration of the Securities shall be automatically rescinded,
so long as such rescission does not conflict with any judgment or decree;


 


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


 


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


 


(i)             commences a voluntary case or proceeding;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 6.02. Acceleration.


 


(a)        If an Event of Default (other than an Event of Default specified in
clause (g) or (h) of Section 6.01) shall occur and be continuing, the
Trustee may, and at the written request of the Holders of at least 25% in
principal amount of outstanding Securities shall, declare the principal of and
accrued but unpaid interest (including Contingent Interest and Liquidated
Damages, if any) on all the


 


37





















 


Securities to be due and
payable by notice in writing to the Company (the “Acceleration Notice”).
Such notice shall specify the respective Event of Default and that it is
a “notice of acceleration.” Upon the giving of an Acceleration Notice, the principal
of and accrued but unpaid interest (including Contingent Interest and
Liquidated Damages, if any) on all the Securities shall become immediately due
and payable. If an Event of Default specified in clause (g) or (h) of Section 6.01
occurs and is continuing, then all unpaid Obligations on all of the outstanding
Securities shall ipso facto become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.


 


(b)        At any time after a declaration of acceleration with respect to the
Securities as described in the preceding paragraph, the Holders of a majority
in aggregate principal amount of the Securities at the time outstanding may
rescind and cancel such declaration and its consequences (i) if the rescission would not
conflict with any judgment or decree, (ii) if all existing Events of Default
have been cured or waived except nonpayment of principal or interest (including
Contingent Interest and Liquidated Damages, if any) that has become due solely
because of such acceleration, (iii) if interest on overdue installments of
interest (to the extent the payment of such interest is lawful) and on overdue
principal, which has become due otherwise than by such declaration of
acceleration, has been paid, (iv) if the Company has paid the Trustee its
reasonable compensation and reimbursed the Trustee for its expenses,
disbursements and advances and (v) in the event of the cure or waiver of an
Event of Default of the type described in clause (d) of Section 6.01, the
Trustee shall have received an Officers’ Certificate and an Opinion of Counsel
that such Event of Default has been cured or waived. No such rescission shall
affect any subsequent Event of Default or impair any right consequent thereto.


 


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


 


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


 


Section 6.04. Waiver
of Past Defaults. The Holders of a majority in aggregate principal
amount of the Securities at the time outstanding, by notice in writing to the
Trustee (and without notice to any other Holder), may waive an existing Event
of Default and its consequences, except (i) an Event of Default


 


38





















 


described
in Section 6.01(a) or 6.01(b), (ii) an Event of Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of
each Holder affected or (iii) an Event of Default which constitutes a failure
to convert any Security in accordance with the terms of Article 10. When
an Event of Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Event of Default or impair any consequent
right. This Section 6.04 shall be in lieu of Section 316(a)(1)(B) of
the TIA and such Section 316(a)(l)(B) is hereby expressly excluded from
this Indenture, as permitted by the TIA.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 6.07. Rights
of Holders to Receive Payment and to Convert. Notwithstanding any other provision of this Indenture, the
right of any Holder to


 


39





















 


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


 


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


 


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


 


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


 


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


 


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


 


Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of


 


40





















 


reorganization,
arrangement, adjustment or composition affecting the Securities or the rights
of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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ARTICLE 7


TRUSTEE


 


Section 7.01. Duties
of Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Sections
7.01(c)(i), (ii) and (iii) shall be in lieu of Sections 3l5(d)(1), 315(d)(2) and 315(d)(3) of the TIA
and such Sections 315(d)(1), 315(d)(2)
and 315(d)(3) are hereby
expressly excluded from this Indenture, as permitted by the TIA.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


43





















 


 


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


 


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


 


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


 


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


 


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


 


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


 


(l)          the Trustee may request that the Company deliver an Officers’
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers’ Certificate may be signed by any person authorized to sign an
Officers’


 


44










 










 


Certificate, including any
person specified as so authorized in any such certificate previously delivered
and not superseded;


 


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


 


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


 


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


 


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


 


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


 


Section 7.05. Notice of Defaults. If an Event of Default occurs and if it is
actually known to a Responsible Officer of the Trustee, the Trustee shall give
to each Holder notice of all current Event of Defaults known to it within 30
days after any such Event of Default occurs or, if later, within 15 days after
it is known to the Trustee, unless such Event of Default shall have been cured
or waived before the giving of such notice. Notwithstanding the preceding
sentence, except


 


45





















 


in the case of an Event of
Default described in Sections 6.01(a) and 6.01(b), the Trustee may withhold the
notice if and so long as a trust committee of officers of the Trustee in good
faith determines that withholding the notice is in the interests of Holders.
The second sentence of this Section 7.05 shall be in lieu of the proviso to
Section 315(b) of the TIA and such proviso is hereby expressly excluded from
this Indenture, as permitted by the TIA.


 


Section
7.06. Reports by Trustee to Holders. Within 60
days after each May 15 beginning with the May 15 following the date of this Indenture,
the Trustee shall mail to each Holder a brief report dated as of such May 15
that complies with TIA Section 313(a), if required by such Section 313(a), but
only to the extent any such report is required to be given pursuant to said TIA
Section 313(a), or any successor provision of the TIA. The Trustee also shall
comply with TIA Section 313(b).


 


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


 


Section 7.07.
Compensation and Indemnity. The
Company agrees:


 


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


 


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


 


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


 


46





















 


Holder or any other Person)
or liability in connection with the Trustee’s exercise or performance of any of
its powers or duties hereunder.


 


To secure the Company’s
payment obligations in this Section 7.07, the Trustee shall have a lien prior
to the Securities on all money or property held or collected by the Trustee,
except any money or property held in trust to pay interest installments
(including Contingent Interest and Liquidated Damages, if any), the principal
amount, Redemption Price, Repurchase Price, Change in Control Repurchase Price
or interest, if any, due on overdue amounts, as the case may be, in respect of
any particular Securities.


 


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


 


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


 


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


 


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


 


(b)                         the Trustee is adjudged bankrupt or
insolvent;


 


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


 


(d)                        the Trustee otherwise becomes incapable of
acting.


 


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


 


47





















 


A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Company satisfactory in form and substance to the retiring Trustee and the
Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture; provided,
notwithstanding the foregoing, the effectiveness of any such resignation or
removal shall be conditioned on receipt by the retiring Trustee of all amounts
due and owing under Section 7.07 hereof. The successor Trustee shall mail a
notice of its succession to Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject
to the lien provided for in Section 7.07.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


ARTICLE 8


DISCHARGE OF
INDENTURE


 


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


 


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


 


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ARTICLE 9


AMENDMENTS


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 9.02.
With Consent of Holders.


 


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


 


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


 


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


 


50





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 9.04.
Revocation and Effect of Consents. Until
an amendment, waiver or other action by Holders becomes effective, a consent
thereto by a Holder of a Security hereunder is a continuing consent by such
Holder and every subsequent Holder of such Security or portion of such Security
that evidences the same obligation as the consenting Holder’s Security, even if
notation of the consent, waiver or action is not made on such Security.
However, unless otherwise agreed by such Holder or a predecessor Holder, any
such Holder or subsequent Holder may revoke the consent, waiver or action as to
such Holder’s


 


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Security or portion of the
Security if the Trustee receives the notice of revocation before the date the
amendment, waiver or action becomes effective. After an amendment, waiver or
action becomes effective, it shall bind every Holder.


 


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


 


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


 


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


 


ARTICLE 10


CONVERSION OF THE SECURITIES


 


Section 10.01.
Conversion Privilege.


 


(a)                                  Subject to the provisions of this Article 10,
a Holder of a Security may convert such Security into cash and Common Stock
equal to the Conversion Value on or prior to December 6, 2024, if any of the
following conditions is satisfied:


 


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


 


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Conversion Price under this
Indenture) is more than 120% of the Conversion Price on such 30th Trading Day;


 


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


 


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


 


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


 


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


 


(iv)                               if the Company is party to a consolidation,
merger, share exchange, sale of all or substantially all of its properties and
assets or other similar transaction, in each case pursuant to which the Common
Stock is subject to conversion into cash, securities or other property from and
after the effective date of such transaction until and including the date that
is 30 days after the effective date of such transaction.


 


(b)                        If a Holder elects to convert its Securities
in connection with a specified corporate transaction pursuant to Sections l0.0l(a)(iii)(A)
and l0.01(a)(iii)(B) that occurs on or prior to December 15, 2011, which
constitutes a Change in Control (other than relating to the composition of our
Board of Directors as described in clause (d) of the definition of Change in
Control in Section 1.01) and 10% or more of the fair market value of the
consideration for the common shares (as determined by the Board of Directors,
whose


 


53





















 


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


 


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


 


The Share Prices set forth
in the first row of the table (i.e., column headers) in Schedule A hereto and
set forth in the proviso at the end of paragraph (d) above will be adjusted as
of any date on which the Conversion Price of the Securities is adjusted
pursuant to the Indenture. The adjusted Share Prices will equal the Share
Prices applicable immediately prior to such adjustment, multiplied by a
fraction, the numerator of which is the Conversion Price immediately prior to
the adjustment giving rise to the Common Stock Price adjustment and the
denominator of which is the Conversion Price as so adjusted. The number of
Additional Shares will be adjusted in the same manner as the Conversion Price as
set forth in this Indenture.


 


(c)                          Notwithstanding the foregoing, and in lieu of
adjusting the Conversion Rate as set forth in Section 10.01(b), in the case of
a Public Acquirer Change in Control, the Company may elect that, from and after
the Effective Date of such Public Acquirer Change in Control, the right to
convert a Security will be changed into a right to convert a Security into a
number of shares of Acquirer Common Stock. At any time prior to the twentieth
day immediately preceding the


 


54





















 


proposed Effective Date of
the Public Acquirer Change in Control, the Company may irrevocably elect to
adjust the terms of the Holder’s conversion privilege set forth in Section
10.14 such that following such adjustment Acquirer Common Stock shall be deemed
to be the Common Stock and the Conversion Rate on and following the Effective
Date of such transaction described in this Section 10.01(c) shall be the
product of:


 


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


 


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


 


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


 


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


 


(d)                         In the case of the foregoing Sections
10.01(a)(iii)(A) and 10.0l(a)(iii)(B), the Company shall cause a notice of such
distribution to be filed with the Trustee and the Conversion Agent and to be
mailed to each Holder of Securities no later than 20 days prior to the
Ex-Dividend Date for such distribution. Once the Company has given such notice,
Holders may surrender their Securities for conversion at any time thereafter
until the earlier of the close of business on the Business Day prior to the Ex-Dividend
Date or the Company’s announcement that such distribution will not take place.
The “Ex-Dividend Date” for any
such issuance or distribution means the date immediately prior to the
commencement of “ex-dividend” trading for such issuance or distribution on The
New York Stock Exchange or such other national securities exchange or The
Nasdaq Stock Market or similar system of automated dissemination of quotations
of securities prices on which the Common Stock is then listed or quoted.


 


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


 


If a Security is called for
redemption pursuant to Section 3.01, in order to convert such Security, the
Holder must deliver the Security to the Conversion Agent (or, if the Security
is held in book-entry form, complete and deliver to the Depositary appropriate
instructions in accordance with the Applicable Procedures) at any time prior to
the close of business on the day that is two Business Days prior to the
applicable Redemption Date for such Security (unless the Company shall default
in paying the Redemption Price when due, in which case the conversion right
shall terminate on the date such default is cured and


 


55





















 


such Security is redeemed).
A Security in respect of which a Holder has delivered a Repurchase Notice
pursuant to Section 3.08 or a Change in Control Repurchase Notice pursuant to
Section 3.09 exercising the option of such Holder to require the Company to
repurchase such Security may be converted only if such Repurchase Notice or
Change in Control Repurchase Notice, as the case may be, is withdrawn by a
written notice of withdrawal delivered to the Paying Agent prior to the close
of business on the Repurchase Date or the Change in Control Repurchase Date, as
the case may be, in accordance with Section 3.10.


 


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


 


Section
10.02. Conversion Procedure.


 


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


 


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


 


56





















 


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


 


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


 


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


 


Section
10.04. Company to Provide Stock. The Company
shall, prior to issuance of any Securities hereunder, and from time to time as
may be necessary, reserve, out of its authorized but unissued Common Stock, a
sufficient number of shares of Common Stock to permit the conversion of all
outstanding Securities into shares of Common Stock. The certificates
representing the shares of


 


57





















 


Common Stock issued upon
conversion of Transfer Restricted Securities shall bear a legend substantially
in the following form:


 


“THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION HEREOF
OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE l44A UNDER THE SECURITIES ACT (“RULE
144A”)) AND IS PURCHASING IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (2) AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO
THE DATE WHICH IS THE LATER OF (X) TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS
PERMITTED BY RULE 144(k) OF THE SECURITIES ACT) AFTER THE LATER OF THE LAST
DATE OF ORIGINAL ISSUANCE OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
SECURITY) AND THE LAST DATE ON WHICH AMERICAN EQUITY INVESTMENT LIFE HOLDING
COMPANY OR ANY AFFILIATE OF AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE “RESALE
RESTRICTION TERMINATION DATE”) EXCEPT (A) TO AMERICAN EQUITY INVESTMENT LIFE
HOLDING COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER, (C) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR (D) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A “QUALIFIED


 


58





















 


INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND; AND, IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO AMERICAN EQUITY INVESTMENT LIFE HOLDING
COMPANY AND THE TRUSTEE (WITH RESPECT TO TRANSFERS OF SECURITIES) OR THE
TRANSFER AGENT (WITH RESPECT TO TRANSFERS OF COMMON STOCK). THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.”


 


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


 


The Company will endeavor
promptly to comply with all federal and state securities laws regulating the
offer and delivery of shares of Common Stock upon conversion of Securities, if
any, and will list or cause to have quoted such shares of Common Stock on each
national securities exchange or in the over-the-counter market or such other
market on which the Common Stock is then listed or quoted.


 


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


 


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


 


59





















 


immediately after the record
date in the case of a dividend or distribution and shall become effective
immediately after the effective date in the case of subdivision, combination or
reclassification.


 


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


 


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


 


(ii)                                      the denominator of which shall be the number
of shares of Common Stock outstanding on such date of public announcement plus
the number of additional shares of Common Stock offered by such rights,
warrants or options (or into which the convertible securities so offered by
such rights, warrants or options are convertible).


 


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


 


(c)                                  In case the Company shall distribute to all
holders of Common Stock any shares of Capital Stock of the Company (other than
Common Stock) or evidences of its indebtedness, other securities or other
assets, or shall distribute to


 


60





















 


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


 


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


 


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


 


such adjustment to become
effective immediately after the record date for such distribution; provided that if the numerator of the
foregoing fraction is less than $1.00 (including a negative amount), then in
lieu of the foregoing adjustment, adequate provision shall be made so that each
Holder shall have the right to receive upon conversion, in addition to the cash
and Common Stock issuable upon such conversion, the distribution such Holder
would have received had such Holder converted its Security solely into Common
Stock at the then applicable Conversion Price immediately prior to the record
date for such distribution; provided that
no adjustment will be made if Holders of the notes are entitled to participate
in the distribution on substantially the same terms as holders of our Common
Stock as if such Holders had converted their Securities solely into Common
Stock immediately prior to such distribution at the then applicable Conversion
Price;


 


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


 


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


 


61





















 


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


 


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


 


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


 


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


 


(ii)                                   the denominator of which shall be the sum of (x)
the fair market value (determined as aforesaid) of the aggregate consideration
payable to holders of Common Stock based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares of Common
Stock validly tendered or exchanged and not


 


62





















 


withdrawn as of the
Expiration Time (the shares deemed so accepted up to any such maximum being
referred to as the “Purchased Shares”) and (y) the product of the number of
shares of Common Stock outstanding (less any Purchased Shares) at the Offer
Expiration Time and the Common Stock Price on the Trading Day next succeeding
the Offer Expiration Time,


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(g)                         In any case in which this Section 10.05 shall
require that an adjustment be made immediately following a record date
established for purposes of this Section 10.05, the Company may elect to defer
(but only until five Business Days following the filing by the Company with the
Trustee of the certificate described in Section 10.09) issuing to the holder of
any Security


 


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converted after such record
date the cash, shares of Common Stock and other Capital Stock of the Company
issuable upon such conversion over and above the cash, shares of Common Stock
and other Capital Stock of the Company issuable upon such conversion only on
the basis of the Conversion Price prior to adjustment; and, in lieu of the cash
and shares the issuance of which is so deferred, the Company shall issue or
cause its transfer agents to issue due bills or other appropriate evidence of
the right to receive such shares.


 


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


 


Section
10.06. No Adjustment. No adjustment in the
Conversion Price shall be required unless the adjustment would require an
increase or decrease of at least 1% in the Conversion Price as last adjusted; provided that any adjustments which by
reason of this Section 10.06 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Article 10 shall be made to the nearest cent, with one-half cent
rounded up, or to the nearest ten thousandth (0.0001) of a share, with each
five hundred thousandth (0.00005) of a share being rounded up, as the case may
be..


 


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


 


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


 


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


 


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


 


Section
10.07. Equivalent Adjustments. If, as a result of
an adjustment made pursuant to Section 10.05 above, the Holder of any Security
thereafter surrendered for conversion shall become entitled to receive any
shares of Capital Stock of the Company other than shares of Common Stock,
thereafter the Conversion Price of such other shares so receivable upon
conversion of any


 


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Securities
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to Common Stock
contained in this Article 10.


 


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


 


Section
10.09. Notice of Adjustment. Whenever the
Conversion Price is adjusted, or Holders become entitled to other securities or
due bills, the Company shall promptly mail to Holders a notice of the
adjustment and file with the Trustee an Officers’ Certificate briefly stating
the facts requiring the adjustment and the manner of computing it. The
certificate shall be conclusive evidence of the correctness of such adjustment,
absent manifest error, and the Trustee may conclusively assume that, unless and
until such certificate is received by it, no such adjustment is required.


 


Section
10.10. Notice of Certain Transactions. In case:


 


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


 


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


 


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


 


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


 


the Company shall cause to
be filed with the Trustee and the Conversion Agent and to be mailed to each
Holder of Securities at its address appearing on the list provided for in
Section 2.05, as promptly as possible but in any event at least ten days prior
to the applicable date hereinafter specified, a notice stating (x) the date on
which a record is to be taken for the purpose of such dividend, distribution or
rights, warrants or options, or, if a record is not to be taken, the date as of
which


 


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the holders of Common Stock
of record to be entitled to such dividend, distribution or rights are to be
determined, or (y) the date on which such reclassification, consolidation,
merger, share exchange, sale, transfer, dissolution, liquidation or winding-up
is expected to become effective or occur, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange
their Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, transfer,
dissolution, liquidation or winding-up. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, share exchange,
transfer, dissolution, liquidation or winding-up.


 


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


 


67





















 


Section 10.11 shall
similarly apply to successive consolidations, mergers, share exchanges, sales
or conveyances. Notwithstanding the foregoing, a distribution by the Company to
all or substantially all holders of Common Stock for which an adjustment to the
Conversion Price or provision for conversion of the Securities may be made
pursuant to Section 10.05 shall not be deemed to be a sale or conveyance of all
or substantially all of the properties and assets of the Company for purposes
of this Section 10.11.


 


In the event the Company
shall execute a supplemental indenture pursuant to this Section 10.11, the
Company shall promptly file with the Trustee an Opinion of Counsel stating that
such supplemental indenture is authorized or permitted by this Indenture and an
Officers’ Certificate briefly stating the reasons therefor, the kind or amount
of cash, securities or other property receivable by Holders of the Securities
upon the conversion of their Securities after any such reclassification,
change, consolidation, merger, share exchange, sale or conveyance, any
adjustment to be made with respect thereto and that all conditions precedent
have been complied with.


 


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


 


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


 


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


 


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Section
10.14. Conversion Value of Securities Tendered.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


69


















 


(c)         The Company shall pay the Principal Return
and cash for fractional shares and deliver the Net Shares, if any, as promptly
as practicable after the Conversion Date, but in no event later than four
Business Days thereafter. Except as provided in Section 10.02(c), delivery of
the Principal Return, Net Shares and cash in lieu of fractional shares shall be
deemed to satisfy the Company’s obligation to pay the principal amount of a
converted Security and accrued but unpaid interest (including Contingent Interest
and Liquidated Damages, if any) thereon. Any accrued interest (including
Contingent interest and Liquidated Damages, if any) payable on a converted
Security shall be deemed paid in full rather than canceled, extinguished or
forfeited.


 


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


 


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


 


ARTICLE 11


MISCELLANEOUS


 


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


 


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


 


70





















 


if to the Company, to:


 


American Equity Investment
Life Holding Company


5000 Westown Parkway, Suite
440


West Des Moines, Iowa


 


if to the Trustee, to:


 


U.S. Bank National
Association


60 Livingston Avenue


EP-MN-WS3C


St. Paul, MN 55107-2292


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


71





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section
11.06. Separability Clause. In case any provision
in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the


 


72





















 


validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.


 


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


 


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


 


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


 


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


 


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


 


Section 11.12.
Multiple Originals. This
Indenture may be executed in any number of counterparts, each of which shall be
an original, but such counterparts shall together constitute but one and the
same instrument.


 


Section 11.13. Table of
Contents and Headings. The Table of Contents and the headings of the
Articles or Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered as part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.


 


Section 11.14. tax
Treatment of the Securities. The Company agrees, and by acceptance
of a beneficial interest in a Security each Holder and any Beneficial Owner of
a Security shall be deemed to agree, to treat, for United States federal income
tax purposes, the Securities as debt instruments that are subject to Treasury
regulation section 1.1275-4 or any successor provision (the “contingent


 


73





















 


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


 


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


 


74





















 


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


 


	
   

  	
  AMERICAN EQUITY INVESTMENT

  
	
   

  	
  LIFE
  HOLDING COMPANY.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wendy L. Carlson

  
	
   

  	
   

  	
  Name:

  	
  Wendy L. Carlson

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer
  and

  
	
   

  	
   

  	
  General Counsel

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL

  
	
   

  	
  ASSOCIATION,
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Prokosch

  
	
   

  	
   

  	
  Name:

  	
  Richard Prokosch

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 





















 


EXHIBIT A


 


[FORM OF
FACE OF GLOBAL SECURITY]


 


[Transfer Restricted
Securities Legend – Include only on Transfer


Restricted Securities]


 


[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR OTHER SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER
(1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT (“RULE 144A”)) AND IS PURCHASING IN COMPLIANCE
WITH RULE l44A UNDER THE SECURITIES ACT, (2) AGREES NOT TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE WHICH IS THE LATER OF (X)
TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) OF
THE SECURITIES ACT) AFTER THE LATER OF THE LAST DATE OF ORIGINAL ISSUANCE OF
THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND THE LAST DATE ON WHICH
AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY OR ANY AFFILIATE OF AMERICAN
EQUITY INVESTMENT LIFE HOLDING COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED
BY APPLICABLE LAW (THE “RESALE RESTRICTION TERMINATION DATE”) EXCEPT (A) TO
AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER, (C) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (D) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE l44A, TO A
PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED
IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON
TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE


 


A-1





















 


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


 


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


 


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


 


[Global Securities Legend –
Include only on Global Securities]


 


A-2





















 


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


 


A-3





















 


AMERICAN
EQUITY INVESTMENT LIFE HOLDING COMPANY.


 


5.25% Contingent Convertible
Senior Note Due 2024


 


	
  No.:

  	
   

  	
  CUSIP: [                   ]*

  
	
   

  	
   

  	
   

  
	
  Issue Date:

  	
   

  	
  Principal Amount:

  



 


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


 


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


 


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


 


	
   

  	
  American
  Equity Investment Life Holding

  Company

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 










*   For Rule 144A
Global Security only


** Include only on
Global Security


 


A-4





















 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


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


 


	
  By:

  	
   

  	
   

  	
   

  
	
  Authorized
  Signatory

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  



 


A-5





















 


[FORM OF
REVERSE SIDE OF NOTE]


 


AMERICAN
EQUITY INVESTMENT LIFE HOLDING COMPANY


 


5.25% Contingent Convertible
Senior Note Due 2024


 


(1)           Interest.


 


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


 


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


 


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


 


(2)           Method of Payment.


 


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


 


A-6





















 


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


 


(3)           Paying Agent, Conversion Agent and Registrar.


 


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


 


(4)           Indenture.


 


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


 


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


 


A-7





















 


(5)           Redemption
at the Option of the Company.


 


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


 


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


 


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


 


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


 


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


 


A-8





















 


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


 


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


 


(7)            Conversion.


 


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


 


A-9





















 


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


 


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


 


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


 


A Security in respect of
which a Holder has delivered a Repurchase Notice or a Change of Control
Repurchase Notice exercising the option of such Holder to require the Company
to repurchase such Security as provided in Section 3.08 or Section 3.09,
respectively, of the Indenture may be converted only if such notice of exercise
is withdrawn in accordance with the terms of the Indenture.


 


A-10





















 


(8)           Denominations; Transfer; Exchange.


 


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


 


(9)            Persons Deemed Owners.


 


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


 


(10)         Amendment; Waiver.


 


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


 


(11)         Defaults and Remedies.


 


Except as set forth in the
Indenture, if an Event of Default occurs and is continuing, the Trustee or the
Holders of not less than 25% in
principal amount of Securities then outstanding may declare all the Securities
to be due and payable in the manner, at the time and with the effect provided
in the Indenture. Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee is not obligated to
enforce the Indenture or the


 


A-11





















 


Securities unless it has received security or indemnity reasonably
satisfactory to it. The Indenture permits, subject to certain limitations
therein provided, Holders of a majority in aggregate principal amount of the
Securities at the time outstanding to direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of Securities notice of
any continuing Default or Event of Default (except a default in payment of
principal or interest when due, for any reason) if it determines in good faith
that withholding notice is in the interests of Holders.


 


(12)         Trustee Dealings with the Company.


 


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


 


(13)         No Recourse Against Others.


 


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


 


(14)         Ranking.


 


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


 


(15)         Authentication.


 


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


 


(16)         Abbreviations.


 


Customary abbreviations may
be used in the name of a Holder or an assignee, such as TEN COM (“Tenants
In Common”), TEN ENT (“Tenants By The Entireties”), JT TEN (“Joint
Tenants With Right Of Survivorship And Not As Tenants In Common”), CUST (“Custodian”)
and U/G/M/A (“Uniform Gift To Minors Act”).


 


A-12





















 


(17)         Governing Law.


 


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


 


(18)         CUSIP Numbers.


 


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


 


A-13





















 


	
  ASSIGNMENT FORM

  	
   

  	
  CONVERSION NOTICE

  
	
   

  	
   

  	
   

  
	
  To assign this Security,
  fill in the form below

  	
   

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

  
	
   

  	
   

  	
   

  
	
  I or we assign and
  transfer this Security to

  	
   

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

  
	
   

  	
   

  	
   

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

  	
   

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

  
	
   

  	
   

  	
   

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

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

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

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
							



 


 


	
  Signature Guaranteed

  	
   

  
	
   

  	
   

  
	
  Participant in a
  Recognized Signature

  	
   

  
	
  Guarantee Medallion
  Program

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Authorized
  Signatory

  	
   

  
			



 


A-1-14





















 


FORM OF
REPURCHASE NOTICE


 


To:          American Equity Investment Life Holding
Company


 


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


 


Dated:


 


	
   

  	
   

  
	
   

  	
  Signature(s)

  



 


Fill in for registration of
Securities not

repurchased if to be issued other than

to and in the name of registered holder:


 


 


	
   

  
	
  (Name)

  
	
   

  
	
   

  
	
  (Street Address)

  
	
   

  
	
   

  
	
  (City, state and zip code)

  



 


 


Please print name and
address


 


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


 


date of requested
repurchase: •,
20   


(specify either.•, 2011, 2014 or 2019)


 


A-1-15





















 


FORM OF
OPTION TO ELECT REPURCHASE


UPON A
CHANGE IN CONTROL


 


To: American Equity Investment Life Holding Company


 


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


 


	
  Dated:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature(s)

  



 


 


Fill in for registration of
Securities not

repurchased if to be issued other than

to and in the name of registered holder:


 


 


	
   

  
	
  (Name)

  
	
   

  
	
   

  
	
  (Street Address)

  
	
   

  
	
   

  
	
  (City, state and zip code)

  



 


 


Please print name and address


 


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


 


A-16





















 


SCHEDULE I*


 


AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY


5.25%  Contingent Convertible
Senior Notes Due 2024


 


No:


 


	
  Date

  	
   

  	
  Principal Amount

  	
   

  	
  Notation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 










* Include only on
Global Security


 


A-17





















 


EXHIBIT B


 


Transfer
Certificate


 


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


 


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


 


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


 


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


 


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


 


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


 


	
  Date:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  	
   

  
	
   

  	
   

  	
   

  
	
   

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

  	
   

  



 


	
  Signature(s)e Guaranteed

  	
   

  
	
   

  	
   

  
	
  Participant in a
  Recognized Signature Guarantee Medallion Program

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Authorized
  Signatory

  	
   

  
			



 


B-1





















 


SCHEDULE A


 


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


 


[to come]


 


B-1