Filed by Bowne Pure Compliance



 




Exhibit 4.3




FIXED/FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE




[FACE OF SECURITY]




THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. 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
AND ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO FIRST MERCURY FINANCIAL
CORPORATION (THE “COMPANY”), (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS
THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TO A
NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE)
OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE
MEANING OF SUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY
BE OBTAINED FROM THE COMPANY. HEDGING TRANSACTIONS INVOLVING THIS SECURITY MAY NOT BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.



 


A-1-1









 




THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT
IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT
TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE
OR HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR
EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION
96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF
THIS SECURITY IS NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE
DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN
EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975
OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN
OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO
FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.



THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE
PRINCIPAL AMOUNT OF NOT LESS THAN $100,000.00 AND MULTIPLES OF $1,000.00 IN EXCESS THEREOF. ANY
ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN
$100,000.00 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.




THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.



THIS SECURITY IS IN REGISTERED FORM WITHIN THE MEANING OF TREASURY REGULATIONS SECTION
1.871-14(c)(1)(i) FOR U.S. FEDERAL INCOME AND WITHHOLDING TAX PURPOSES.



IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT
SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE INDENTURE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.


 


 









 





Fixed/Floating Rate Junior Subordinated Deferrable Interest Debenture




of




First Mercury Financial Corporation




September 26, 2007




First Mercury Financial Corporation, a corporation duly organized and existing under the laws
of Delaware (the “Company,” which term includes any successor Person under the Indenture
hereinafter referred to), for value received promises to pay to Wilmington Trust Company, not in
its individual capacity but solely as Institutional Trustee for First Mercury Capital Trust IV (the
“Holder”) or registered assigns, the principal sum of twenty million six hundred and nineteen
thousand dollars ($20,619,000) on September 26, 2037, and to pay interest on said principal sum
from September 26, 2007, or from the most recent Interest Payment Date (defined herein) to which
interest has been paid or duly provided for, quarterly (subject to deferral as set forth herein) in
arrears on March 15, June 15, September 15 and December 15 of each year or if such day is not a
Business Day, then the next succeeding Business Day (each such date, an “Interest Payment Date”)
commencing on the Interest Payment Date in March 2008, at an annual rate equal to 8.25% beginning
on (and including) the date of original issuance and ending on (but excluding) the Interest Payment
Date in December 2012, and at an annual rate for each successive period beginning on (and
including) the Interest Payment Date in December 2012, and each succeeding Interest Payment Date,
and ending on (but excluding) the next succeeding Interest Payment Date (each a “Distribution
Period”), equal to 3-Month LIBOR, determined as described below, plus 3.30% (the “Coupon Rate”),
applied to the principal amount hereof, until the principal hereof is paid or duly provided for or
made available for payment, and on any overdue principal and (without duplication and to the extent
that payment of such interest is enforceable under applicable law) on any overdue installment of
interest (including Additional Interest) at the Interest Rate in effect for each applicable period,
compounded quarterly, from the dates such amounts are due until they are paid or made available for
payment. The amount of interest payable for any period will be computed on the basis of the actual
number of days in the Distribution Period concerned divided by 360. The interest installment so
payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided
in the Indenture, be paid to the Person in whose name this Debenture (or one or more Predecessor
Securities) is registered at the close of business on the regular record date for such interest
installment, which shall be fifteen days prior to the day on which the relevant Interest Payment
Date occurs. Any such interest installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such regular record date and may be paid to the
Person in whose name this Debenture (or one or more Predecessor Securities) is registered at the
close of business on a special record date.



Capitalized terms used and not defined in this Debenture shall have the meanings assigned in
the Indenture dated as of the date of original issuance of this Debenture between the Trustee and
the Company.


 


 









 





“3-Month LIBOR” as used herein, means the London interbank offered interest rate for
three-month U.S. dollar deposits determined by the Trustee in the following order of priority: (i)
the rate (expressed as a percentage per annum) for U.S. dollar deposits having a three-month
maturity that appears on Reuters Screen LIBOR01 Page as of 11:00 a.m. (London time) on the
related Determination Date (“Reuters Screen LIBOR01 Page” means the display designated as “Reuters
Screen LIBOR01 Page” or such other page as may replace Reuters Screen LIBOR01 Page on that service
or such other service or services as may be nominated by the British Bankers’ Association as the
information vendor for the purpose of displaying London interbank offered rates for U.S. dollar
deposits. If at least two rates appear on the Reuters Screen LIBOR01 Page, the rate on the
Determination Date will be the arithmetic mean of such rates); (ii) if such rate cannot be
identified on the related Determination Date, the Trustee will request the principal London offices
of four leading banks in the London interbank market to provide such banks’ offered quotations
(expressed as percentages per annum) to prime banks in the London interbank market for U.S. dollar
deposits having a three-month maturity as of 11:00 a.m. (London time) on such Determination Date.
If at least two quotations are provided, 3-Month LIBOR will be the arithmetic mean of such
quotations; (iii) if fewer than two such quotations are provided as requested in clause (ii) above,
the Trustee will request four major New York City banks to provide such banks’ offered quotations
(expressed as percentages per annum) to leading European banks for loans in U.S. dollars as of
11:00 a.m. (London time) on such Determination Date. If at least two such quotations are provided,
3-Month LIBOR will be the arithmetic mean of such quotations; and (iv) if fewer than two such
quotations are provided as requested in clause (iii) above, 3-Month LIBOR will be a 3-Month LIBOR
determined with respect to the Distribution Period immediately preceding such current Distribution
Period. If the rate for U.S. dollar deposits having a three-month maturity that initially appears
on Reuters Screen LIBOR01 Page as of 11:00 a.m. (London time) on the related Determination Date is
superseded on the Reuters Screen LIBOR01 Page by a corrected rate by 12:00 noon (London time) on
such Determination Date, then the corrected rate as so substituted on the applicable page will be
the applicable 3-Month LIBOR for such Determination Date. As used herein, “Determination Date”
means the date that is two London Banking Days (i.e., a business day in which dealings in deposits
in U.S. dollars are transacted in the London interbank market) preceding the commencement of the
relevant Distribution Period.



“Interest Rate” means for the period beginning on (and including) the date of original
issuance and ending on (but excluding) the Interest Payment Date in December 2012 the rate per
annum of 8.25% and for each Distribution Period thereafter, the Coupon Rate.



The Interest Rate for any Distribution Period will at no time be higher than the maximum rate
then permitted by New York law as the same may be modified by United States law.



All percentages resulting from any calculations on the Debentures will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point, with five one-millionths of
a percentage point rounded upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655), and all dollar amounts used in or resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upward)).



The principal of and interest on this Debenture shall be payable at the office or agency of
the Trustee (or other paying agent appointed by the Company) maintained for that purpose in any
coin or currency of the United States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that payment of interest
may be made by check mailed to the registered holder at such address as shall appear in the
Debenture Register if a request for a wire transfer by such holder has not been received by the Company or by
wire transfer to an account appropriately designated by the holder hereof. Notwithstanding the
foregoing, so long as the holder of this Debenture is the Institutional Trustee, the payment of the
principal of and interest on this Debenture will be made in immediately available funds at such
place and to such account as may be designated by the Trustee.






 


 









 






So long as no Event of Default has occurred and is continuing, the Company shall have the
right, from time to time, and without causing an Event of Default, to defer payments of interest on
the Debentures by extending the interest payment period on the Debentures at any time and from time
to time during the term of the Debentures, for up to 20 consecutive quarterly periods (each such
extended interest payment period, an “Extension Period”), during which Extension Period no interest
(including Additional Interest) shall be due and payable (except any Additional Sums that may be
due and payable). No Extension Period may end on a date other than an Interest Payment Date.
During an Extension Period, interest will continue to accrue on the Debentures, and interest on
such accrued interest will accrue at an annual rate equal to the Interest Rate in effect for such
Extension Period, compounded quarterly from the date such interest would have been payable were it
not for the Extension Period, to the extent permitted by law (such interest referred to herein as
“Additional Interest”). At the end of any such Extension Period the Company shall pay all interest
then accrued and unpaid on the Debentures (together with Additional Interest thereon);
provided, however, that no Extension Period may extend beyond the Maturity Date;
provided further, however, that during any such Extension Period, the
Company shall not and shall not permit any Affiliate of the Company controlled by the Company to
engage in any of the activities or transactions described on the reverse side hereof and in the
Indenture. Prior to the termination of any Extension Period, the Company may further extend such
period, provided that such period together with all such previous and further consecutive
extensions thereof shall not exceed 20 consecutive quarterly periods, or extend beyond the Maturity
Date. Upon the termination of any Extension Period and upon the payment of all accrued and unpaid
interest and Additional Interest, the Company may commence a new Extension Period, subject to the
foregoing requirements. No interest or Additional Interest shall be due and payable during an
Extension Period, except at the end thereof, but each installment of interest that would otherwise
have been due and payable during an Extension Period shall bear Additional Interest to the extent
permitted by applicable law. The Company must give the Trustee notice of its election to begin or
extend an Extension Period at least 5 Business Days prior to the regular record date (as such term
is used in Section 2.8 of the Indenture) immediately preceding the Interest Payment Date with
respect to which interest on the Debentures would have been payable except for the election to
begin or extend an Extension Period. The Trustee shall give notice of the Company’s election to
begin a new Extension Period to the holders of the Debentures.



The indebtedness evidenced by this Debenture is, to the extent provided in the Indenture,
subordinate and junior in right of payment to the prior payment in full of all Senior Indebtedness,
and this Debenture is issued subject to the provisions of the Indenture with respect thereto. Each
holder of this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take such action as may
be necessary or appropriate to acknowledge or effectuate the subordination so provided and
(c) appoints the Trustee his or her attorney-in-fact for any and all such purposes. Each holder
hereof, by his or her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of Senior
Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.


 


 









 





This Debenture shall not be entitled to any benefit under the Indenture hereinafter referred
to, be valid or become obligatory for any purpose until the certificate of authentication hereon
shall have been signed by or on behalf of the Trustee.



The provisions of this Debenture are continued on the reverse side hereof and such provisions
shall for all purposes have the same effect as though fully set forth at this place.


 


 









 






IN WITNESS WHEREOF, the Company has duly executed this certificate.



	 	 	 	 	 
	 	FIRST MERCURY FINANCIAL CORPORATION

 	 
	 	By:  	/s/
Jeffrey R. Wawok	 
	 	 	Name:  	Jeffrey R. Wawok 	 
	 	 	Title:  	Executive Vice President 	 
	 



CERTIFICATE OF AUTHENTICATION






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



	 	 	 	 	 
	 	WILMINGTON TRUST COMPANY, as Trustee

 	 
	 	By:  	/s/
Christopher J. Slaybaugh	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 



 


 









 





[REVERSE OF DEBENTURE]




This Debenture is one of the fixed/floating rate junior subordinated deferrable interest
debentures of the Company, all issued or to be issued under and pursuant to the Indenture dated as
of September 26, 2007 (the “Indenture”), duly executed and delivered between the Company and the
Trustee, to which Indenture reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the
holders of the Debentures. The Debentures are limited in aggregate principal amount as specified
in the Indenture.



Upon the occurrence and continuation of a Special Event prior to the Interest Payment Date in
December 15, 2012, the Company shall have the right to redeem the Debentures in whole, but not in
part, at any Interest Payment Date, within 120 days following the occurrence of such Special Event,
at the Special Redemption Price.



In addition, the Company shall have the right to redeem the Debentures, in whole or in part,
but in all cases in a principal amount with integral multiples of $1,000.00, on any Interest
Payment Date on or after the Interest Payment Date in December 15, 2012 at the Optional Redemption
Price.



Prior to 10:00 a.m. New York City time on the Optional Redemption Date or Special Redemption
Date, as applicable, the Company will deposit with the Trustee or with one or more paying agents an
amount of money sufficient to redeem on the Optional Redemption Date or the Special Redemption
Date, as applicable, all the Debentures so called for redemption at the appropriate Optional
Redemption Price or Special Redemption Price.



If all, or less than all, the Debentures are to be redeemed, the Company will give the Trustee
notice not less than 45 nor more than 60 days prior to the Optional Redemption Date or Special
Redemption Date, as applicable, as to the aggregate principal amount of Debentures to be redeemed
and the Trustee shall select, in such manner as in its sole discretion it shall deem appropriate
and fair, the Debentures or portions thereof (in integral multiples of $1,000.00) to be redeemed.



Notwithstanding the foregoing, any redemption of Debentures by the Company shall be subject to
the receipt of any and all required regulatory approvals.



In case an Event of Default shall have occurred and be continuing, upon demand of the Trustee,
the principal of all of the Debentures shall become due and payable in the manner, with the effect
and subject to the conditions provided in the Indenture.



The Indenture contains provisions permitting the Company and the Trustee, with the consent of
the holders of not less than a majority in aggregate principal amount of the Debentures at the time
outstanding, to execute supplemental indentures for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders of the Debentures;
provided, however, that no such supplemental indenture shall without the consent of
the holders of each Debenture then outstanding and affected thereby (i) change the fixed maturity
of any Debenture, or reduce the principal amount thereof or any premium thereon, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or make the principal thereof or any interest or premium thereon
payable in any coin or currency other than that provided in the Debentures, or impair or affect the
right of any Securityholder to institute suit for payment thereof or impair the right of repayment,
if any, at the option of the holder, or (ii) reduce the aforesaid percentage of Debentures the
holders of which are required to consent to any such supplemental indenture.




 


 









 








The Indenture also contains provisions permitting the holders of a majority in aggregate
principal amount of the Debentures at the time outstanding on behalf of the holders of all of the
Debentures to waive (or modify any previously granted waiver of) any past default or Event of
Default, and its consequences, except an Event of Default (a) specified in Sections 5.1(a) and (b),
(b) in respect of covenants or provisions hereof or of the Indenture which cannot be modified or
amended without the consent of the holder of each Debenture affected, or (c) in respect of the
covenants contained in Section 3.9 of the Indenture; provided, however, that if the
Debentures are held by the Trust or a trustee of the Trust, such waiver or modification to such
waiver shall not be effective until the holders of a majority in Liquidation Amount of the Trust
Securities shall have consented to such waiver or modification to such waiver, provided,
further, that if the consent of the holder of each outstanding Debenture is required, such
waiver shall not be effective until each holder of the Trust Securities shall have consented to
such waiver. Upon any such waiver, the default covered thereby shall be deemed to be cured for all
purposes of the Indenture and the Company, the Trustee and the holders of the Debentures shall be
restored to their former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been waived as permitted by
the Indenture, said default or Event of Default shall for all purposes of the Debentures and the
Indenture be deemed to have been cured and to be not continuing.



No reference herein to the Indenture and no provision of this Debenture or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and premium, if any, and interest, including Additional Interest, on this
Debenture at the time and place and at the rate and in the money herein prescribed.



The Company has agreed that if Debentures are initially issued to the Trust or a trustee of
such Trust in connection with the issuance of Trust Securities by the Trust (regardless of whether
Debentures continue to be held by such Trust) and (i) there shall have occurred and be continuing
an Event of Default, (ii) the Company shall be in default with respect to its payment of any
obligations under the Capital Securities Guarantee, or (iii) the Company shall have given notice of
its election to defer payments of interest on the Debentures by extending the interest payment
period as provided herein and such Extension Period, or any extension thereof, shall be continuing,
then the Company shall not, and shall not permit any Affiliate of the Company controlled by the
Company to, (x) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or
make a liquidation payment with respect to, any of the Company’s or such Affiliates’ Capital Stock
(other than payments of dividends or distributions to the Company or a Subsidiary of the Company)
or make any guarantee payments with respect to the foregoing, (y) make any payment of principal of
or interest or premium, if any, on or repay, repurchase or redeem any debt securities of the
Company or any Affiliate of the Company controlled by the



 


 









 






Company that rank pari passu in all respects with or junior in interest to the Debentures or
(z) enter into, amend or modify any contracts with shareholders holding more than 10% of the
outstanding shares of common stock of the Company (other than, with respect to clauses (x) and (y)
above, (1) repurchases, redemptions or other acquisitions of shares of Capital Stock of the Company
or any Subsidiary of the Company in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of one or more employees, officers, directors or
consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of Capital Stock of the Company or of such Subsidiary (or securities
convertible into or exercisable for such Capital Stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (2) as a result of any exchange
or conversion of any class or series of the Company’s Capital Stock (or any Capital Stock of a
Subsidiary of the Company) for any class or series of the Company’s Capital Stock (or in the case
of a Subsidiary of the Company, any class or series of such Subsidiary’s Capital Stock) or of any
class or series of the Company’s indebtedness for any class or series of the Company’s Capital
Stock (or in the case of indebtedness of a Subsidiary of the Company, of any class or series of
such Subsidiary’s indebtedness or any class or series of such Subsidiary’s Capital Stock), (3) the
purchase of fractional interests in shares of the Company’s Capital Stock (or the Capital Stock of
a Subsidiary of the Company) pursuant to the conversion or exchange provisions of such Capital
Stock or the security being converted or exchanged, (4) any declaration of a dividend in connection
with any stockholders’ rights plan, or the issuance of rights, stock or other property under any
stockholders’ rights plan, or the redemption or repurchase of rights pursuant thereto, (5) any
dividend in the form of stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the same stock as that on
which the dividend is being paid or ranks pari passu with or junior to such stock and any cash
payments in lieu of fractional shares issued in connection therewith, or (6) payments under the
Capital Securities Guarantee).



The Debentures are issuable only in registered, certificated form without coupons and in
minimum denominations of $100,000.00 and any multiple of $1,000.00 in excess thereof. As provided
in the Indenture and subject to the transfer restrictions and limitations as may be contained
herein and therein from time to time, this Debenture is transferable by the holder hereof on the
Debenture Register of the Company. Upon due presentment for registration of transfer of any
Debenture at the Principal Office of the Trustee or at any office or agency of the Company
maintained for such purpose as provided in Section 3.2 of the Indenture, the Company shall execute,
the Company or the Trustee shall register and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery in the name of the transferee or transferees a new
Debenture for a like aggregate principal amount. All Debentures presented for registration of
transfer or for exchange or payment shall (if so required by the Company or the Trustee or the
Authenticating Agent) be duly endorsed by, or be accompanied by a written instrument or instruments
of transfer in form satisfactory to, the Company and the Trustee or the Authenticating Agent duly
executed by the holder or his attorney duly authorized in writing. No service charge shall be made
for any exchange or registration of transfer of Debentures, but the Company or the Trustee may
require payment of a sum sufficient to cover any tax, fee or other governmental charge that may be
imposed in connection therewith.


 


 









 





Prior to due presentment for registration of transfer of any Debenture, the Company, the
Trustee, any Authenticating Agent, any paying agent, any transfer agent and any Debenture
registrar may deem the Person in whose name such Debenture shall be registered upon the
Debenture Register to be, and may treat him as, the absolute owner of such Debenture (whether or
not such Debenture shall be overdue) for the purpose of receiving payment of or on account of the
principal of, premium, if any, and interest on such Debenture and for all other purposes; and
neither the Company nor the Trustee nor any Authenticating Agent nor any paying agent nor any
transfer agent nor any Debenture registrar shall be affected by any notice to the contrary. All
such payments so made to any holder for the time being or upon his order shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Debenture.



The Debentures are in registered form within the meaning of Treasury Regulations Section
1.871-14(c)(1)(i) for U.S. federal income and withholding tax purposes.



No recourse for the payment of the principal of or premium, if any, or interest on any
Debenture, or for any claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture or in any supplemental
indenture, or in any such Debenture, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, officer or director, as
such, past, present or future, of the Company or of any successor Person of the Company, either
directly or through the Company or any successor Person of the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, it being expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of the Indenture and the
issue of the Debentures.



PURSUANT TO SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, THE
INDENTURE AND THIS DEBENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.