EX-4.2





Exhibit 4.2

EXECUTION VERSION




      




US AIRWAYS GROUP, INC.




as Issuer




AND




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




as Trustee




FIRST SUPPLEMENTAL INDENTURE




Dated as of May 13, 2009




$172,500,000




7.25% Convertible Senior Notes due 2014




      




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE 1

	DEFINITIONS

	 
	 	 	 	 
	Section 1.01. Definitions

	 	 	1	 
	 
	 	 	 	 
	ARTICLE 2

	ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES

	 
	 	 	 	 
	Section 2.01. Designation and Amount

	 	 	8	 
	Section 2.02. Form of Notes

	 	 	8	 
	Section 2.03. Date and Denomination of Notes; Payments of Interest

	 	 	9	 
	 
	 	 	 	 
	ARTICLE 3

	DEFAULTS AND REMEDIES

	 
	 	 	 	 
	Section 3.01. Events of Default

	 	 	9	 
	Section 3.02. Acceleration

	 	 	11	 
	Section 3.03. Collection of Indebtedness and Suits for Enforcement by Trustee

	 	 	12	 
	Section 3.04. Application of Moneys Collected

	 	 	13	 
	Section 3.05. Limitation on Suits

	 	 	13	 
	Section 3.06. Rights and Remedies Cumulative; Delay or Omission Not Waiver

	 	 	14	 
	Section 3.07. Additional Interest

	 	 	14	 
	Section 3.08. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders

	 	 	15	 
	Section 3.09. Notice of Defaults

	 	 	15	 
	Section 3.10. Undertaking to Pay Costs

	 	 	16	 
	 
	 	 	 	 
	ARTICLE 4

	SUPPLEMENTAL INDENTURES

	 
	 	 	 	 
	Section 4.01. Supplemental Indentures Without Consent of Noteholders

	 	 	16	 
	Section 4.02. Supplemental Indentures With Consent of Noteholders

	 	 	17	 
	Section 4.03. Effect of Supplemental Indentures

	 	 	18	 
	Section 4.04. Notation on Notes

	 	 	18	 
	Section 4.05. Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee

	 	 	18	 
	Section 4.06. Notice of Execution of Supplemental Indenture

	 	 	18	 
	 
	 	 	 	 
	ARTICLE 5

	CONVERSION OF NOTES

	 
	 	 	 	 
	Section 5.01. Conversion Privilege

	 	 	19	 
	Section 5.02. Conversion Procedure

	 	 	19	 
	Section 5.03. Increased Conversion Rate Applicable to Certain Notes Surrendered
in Connection with Make-Whole Fundamental Changes

	 	 	22	 
	Section 5.04. Adjustment of Conversion Rate

	 	 	24	 
	Section 5.05. Shares to Be Fully Paid

	 	 	33	 
	Section 5.06. Effect of Reclassification, Consolidation, Merger or Sale

	 	 	33	 
	Section 5.07. Certain Covenants

	 	 	35	 
	Section 5.08. Responsibility of Trustee

	 	 	35	 
	Section 5.09. Notice to Noteholders Prior to Certain Actions

	 	 	36	 






i









 




TABLE OF CONTENTS 
(continued)




	 	 	 	 	 
	 	 	Page
	Section 5.10. Stockholder Rights Plans

	 	 	36	 
	Section 5.11. Exchange in Lieu of Conversion

	 	 	37	 
	 
	 	 	 	 
	ARTICLE 6

	REPURCHASE OF NOTES AT OPTION OF NOTEHOLDERS

	 
	 	 	 	 
	Section 6.01. Repurchase at Option of Noteholders upon a Fundamental Change

	 	 	37	 
	Section 6.02. Withdrawal of Fundamental Change Repurchase Notice

	 	 	40	 
	Section 6.03. Deposit of Fundamental Change Repurchase Price

	 	 	40	 
	 
	 	 	 	 
	ARTICLE 7

	MISCELLANEOUS

	Section 7.01. Ratification of Indenture

	 	 	41	 
	Section 7.02. Trustee Not Responsible for Recitals

	 	 	42	 
	Section 7.03. Waiver of Stay, Extension or Usury Laws

	 	 	42	 
	Section 7.04. Governing Law

	 	 	43	 
	Section 7.05. Separability

	 	 	43	 
	Section 7.06. Counterparts

	 	 	43	 
	Section 7.07. Notices to Noteholders

	 	 	43	 
	 
	 	 	 	 
	EXHIBITS
	 	 	 	 
	 
	 	 	 	 
	Exhibit A Form of Note

	 	 	A-1	 
	Exhibit B Form of Notice of Conversion

	 	 	B-1	 
	Exhibit C Form of Fundamental Change Repurchase Notice

	 	 	C-1	 
	Exhibit D Form of Assignment and Transfer

	 	 	D-1	 







ii











 





          FIRST SUPPLEMENTAL INDENTURE, dated as of May 13, 2009 (this “Supplemental Indenture”),
between US Airways Group, Inc., a Delaware corporation (the “Company”), and The Bank of New York
Mellon Trust Company, N.A., as trustee (the “Trustee”), to the indenture, dated as of as of May 13,
2009 (the “Base Indenture”), between the Company and the Trustee.




          WHEREAS, the Company executed and delivered the Base Indenture to the Trustee to provide for,
among other things, the issuance from time to time of the Company’s debt securities in one or more
series as might be authorized under the Base Indenture;




          WHEREAS, the Base Indenture provides that the Company and the Trustee may enter into an
Indenture supplemental to the Base Indenture to establish the form and terms of any series of
Securities (as defined in Section 1.01 of the Base Indenture) as provided by Section 2.01 of the
Base Indenture;




          WHEREAS, the Company desires to enter into this Supplemental Indenture to provide for the
establishment of a series of Securities (as defined in Section 1.01 of the Base Indenture) to be
known as the 7.25% Convertible Senior Notes due 2014 (each such Security being hereinafter called a
“Note”), the form, substance, terms, provisions and conditions of which shall be set forth in
Article 2 of the Base Indenture as supplemented by this Supplemental Indenture, as the same may be
further amended and supplemented from time to time (being hereinafter called this “Indenture”);




          WHEREAS, the Board of Directors of the Company has duly adopted resolutions authorizing the
Company to issue the Notes provided for in this Supplemental Indenture; and




          WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental
Indenture and has satisfied all requirements necessary to make (i) this Supplemental Indenture a
valid instrument in accordance with its terms and (ii) the Notes provided for hereby, when executed
and delivered by the Company and authenticated by the Trustee, a series of Securities (as defined
in Section 1.01 of the Base Indenture) that are the valid obligations of the Company.




WITNESSETH:




          NOW THEREFORE, each party agrees as follows for the benefit of the other parties and for the
equal and ratable benefit of the Holders of the Notes:




ARTICLE 1

DEFINITIONS




          Section 1.01. Definitions. Unless otherwise specified herein or the context otherwise
requires:




          (a) a term defined in the Base Indenture has the same meaning when used in this Supplemental
Indenture unless the definition of such term is amended or supplemented pursuant to this
Supplemental Indenture;




          (b) the terms defined in this Article and in this Supplemental Indenture include the plural as
well as the singular;





 









 








          (c) a reference to a Section or Article is to a Section or Article of this Supplemental
Indenture;




          (d) Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof; and




          (e) the following terms have the meanings given to them in this Section 1.01(e):




          “Additional Interest” means all amounts, if any, payable pursuant to Section 3.07.




          “Base Indenture” has the meaning set forth in the recitals hereto.




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




          “Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which the banking institutions in New York City are authorized or obligated by law or executive
order to close or be closed.




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




          “Cash Settlement Averaging Period” means, with respect to any Note surrendered for conversion,
the twenty consecutive Trading Day period beginning on, and including, the third Trading Day
immediately following the Conversion Date for such Note; provided that, with respect to any
Conversion Date occurring during the period beginning on, and including, March 15, 2014 and ending
at the close of business on the second Scheduled Trading Day immediately prior to the Maturity
Date, the “Cash Settlement Averaging Period” means the twenty consecutive Trading Day period
beginning on, and including, the twenty-second Scheduled Trading Day prior to the Maturity Date.




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




          “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934.




          “Common Equity” of any Person means Capital Stock of such Person that is generally entitled
(a) to vote in the election of directors of such Person or (b) if such Person is not a corporation,
to vote or otherwise participate in the selection of the governing body, partners, managers or
others that will control the management or policies of such Person.




          “Common Stock” means, subject to Section 5.06(b), shares of common stock of the Company, par
value $0.01 per share, at the date of this Supplemental Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and that have no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and that are not subject to redemption by the
Company; provided that if at any time there shall be more than one such resulting class, the shares
of each such class then so issuable shall be substantially in the proportion that the total number
of shares of such class resulting from all such reclassifications bears to the total number of
shares of all such classes resulting from all such reclassifications.




2









 








          “Continuing Director” means a director who either was a member of the Board of Directors on
May 13, 2009 or who becomes a member of the Board of Directors subsequent to that date and whose
election, appointment or nomination for election by the stockholders of the Company is duly
approved by a majority of the Continuing Directors on the Board of Directors at the time of
such approval, either by a specific vote or by approval of the proxy statement issued by the
Company on behalf of the entire Board of Directors in which such individual is named as nominee for
director.




          “Company” has the meaning set forth in the recitals hereto.




          “Conversion Agent” has the meaning specified in Section 5.08.




          “Conversion Date” has the meaning specified in Section 5.02(c).




          “Conversion Obligation” has the meaning specified in Section 5.01(a).




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




          “Conversion Rate” has the meaning specified in Section 5.01(a).




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




          “Daily Conversion Value” means, for each of the twenty consecutive Trading Days during the
Cash Settlement Averaging Period, one-twentieth (1/20th) of the product of (a) the then-applicable
Conversion Rate on such Trading Day and (b) the Daily VWAP of the Common Stock on such Trading Day.




          “Daily Measurement Value” is equal to the Specified Dollar Amount, divided by twenty.




          “Daily Settlement Amount,” for each of the twenty consecutive Trading Days during the Cash
Settlement Averaging Period, shall consist of:





     (a) cash equal to the lesser of the Daily Measurement Value and the Daily Conversion
Value for such Trading Day; and




     (b) to the extent the Daily Conversion Value for such Trading Day exceeds the Daily
Measurement Value, a number of shares of Common Stock equal to the Daily Share Amount.



          “Daily Share Amount” means, to the extent the Daily Conversion Value exceeds the Daily
Measurement Value, (i) the difference between the Daily Conversion Value and the Daily Measurement
Value, divided by (ii) the Daily VWAP of the Common Stock for such Trading Day.




          “Daily VWAP” for the Common Stock, in respect of any Trading Day, means the per share
volume-weighted average price on the New York Stock Exchange as displayed under the heading
“Bloomberg VWAP” on Bloomberg page “LCC.N <equity> AQR” (or its equivalent successor if such
page is not available) in respect of the period from the scheduled opening of trading until the
scheduled close of trading of the primary trading session on such Trading Day (or if such
volume-weighted average price is unavailable, the market value of one share of the Common Stock on
such Trading Day as determined by the Board of Directors (or a committee thereof) in a commercially
reasonable manner,





3









 







using a volume-weighted average price method) and will be determined without
regard to after hours trading or any other trading outside of the regular trading session.




          “Depositary” means, with respect to the Global Notes the Person specified as the depositary
with respect to such Notes, until a successor shall have been appointed and become such pursuant to
the applicable provisions of this Indenture, and thereafter, “Depositary” shall mean or include
such successor.




          “Effective Date” has the meaning specified in Section 5.03(a).




          “Event of Default” has the meaning specified in Section 3.01.




          “Ex-Dividend Date” means, with respect to any issuance, dividend or distribution in which the
holders of Common Stock (or other security) have the right to receive any cash, securities or other
property, the first date on which the shares of the Common Stock (or other security) trade on the
applicable exchange or in the applicable market, regular way, without the right to receive the
issuance, dividend or distribution in question.




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




          “Expiration Date” has the meaning specified in Section 5.04(e).




          “Expiration Time” has the meaning specified in Section 5.04(e).




          “Fundamental Change” means the occurrence after the original issuance of the Notes of any of
the following events:





     (a) any “person” or “group” (within the meaning of Section 13(d) of the Exchange Act)
other than the Company or its Subsidiaries files a Schedule TO or any schedule, form or
report under the Exchange Act disclosing that such person or group has become the direct or
indirect ultimate “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of
the Company’s Common Equity representing more than 50% of the voting power of the Company’s
Common Equity;




     (b) consummation of any binding share exchange, exchange offer, tender offer,
consolidation or merger of the Company pursuant to which all or substantially all of the
Common Stock will be converted into cash, securities or other property or any sale, lease or
other transfer in one transaction or a series of related transactions of all or
substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a
whole, to any Person other than one or more of the Company’s Subsidiaries; (any such
exchange, offer, consolidation, merger, transaction or series of transactions being referred
to in this definition as an “event”); provided, however, that any such event where the
holders of more than 50% of the outstanding shares of Common Stock immediately prior to such
event, own, directly or indirectly, more than 50% of all classes of the common equity of the
continuing or surviving person or transferee or the parent thereof immediately after such
event shall not be a Fundamental Change;




     (c) the first day on which Continuing Directors cease to constitute at least a majority
of the Board of Directors;



4









 






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




     (e) the Common Stock (or other common stock into which the Notes are then convertible)
ceases to be listed on at least one U. S. national securities exchange,


provided, however, in the case of an event described in clause (b) above, if (1) at least 90% of
the consideration, excluding cash payments for fractional shares, in the transaction or event
constituting the Fundamental Change consists of shares of Publicly Traded Securities, and (2) as a
result of the event, the Notes become convertible into such Publicly Traded Securities, excluding
cash payments for fractional shares (subject to the provisions of Section 5.02(a)), such event
shall not be a Fundamental Change (including under clause (c) above); provided, further, if any
transaction in which the Common Stock is replaced by the securities of another entity shall occur,
following completion of any related Make-Whole Fundamental Change period and any related
Fundamental Change Repurchase Date, references to the Company in this definition shall instead
apply to such other entity; and provided, further, that any filing that would otherwise constitute
a Fundamental Change under clause (a) above shall not constitute a Fundamental Change if (x) the
filing occurs in connection with a transaction in which the Common Stock is replaced by the
securities of another entity (including a parent entity) and (y) no such filing is made or is in
effect with respect to common equity representing more than 50% of the voting power of such other
entity.




          For purposes of this definition, whether a “person” is a “beneficial owner” shall be
determined in accordance with Rule 13d-3 under the Exchange Act and “person” includes any syndicate
or group that would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act.




          “Fundamental Change Company Notice” has the meaning specified in Section 6.01(b).




          “Fundamental Change Expiration Time” has the meaning specified in Section 6.01(b)(ix).




          “Fundamental Change Repurchase Date” has the meaning specified in Section 6.01(a).




          “Fundamental Change Repurchase Notice” has the meaning specified in Section 6.01(a)(i).




          “Fundamental Change Repurchase Price” has the meaning specified in Section 6.01(a).




          “Global Note” means a Note in global form registered in the name of the Depositary or its
nominee.




          “Indenture” has the meaning set forth in the recitals hereto.




          “Interest Payment Date” means each May 15 and November 15 of each year, beginning on November
15, 2009; provided, however, that if any Interest Payment Date falls on a date that is not a
Business Day, such payment of interest (including Additional Interest, if any) (or principal in the
case of the Maturity Date) will be postponed until the next succeeding Business Day, and no
interest or other amount will be paid as a result of such postponement.





5









 








          “Interest Record Date,” with respect to any Interest Payment Date, means the May 1 or November
1 (whether or not such day is a Business Day) immediately preceding the relevant Interest Payment
Date, respectively.




          “Last Reported Sale Price” of the Common Stock on any date means the closing sale price per
share (or if no closing sale price is reported, the average of the bid and ask prices or, if more
than one in either case, the average of the average bid and the average ask prices) on that date as
reported in composite transactions for the principal U.S. national or regional securities exchange
on which the Common Stock is listed for trading. The Last Reported Sale Price will be determined
without reference to after-hours or extended market trading. If the Common Stock is not listed for
trading on a U.S. national securities exchange on the relevant date, then the “Last Reported Sale
Price” of the Common Stock will be the last quoted bid price for the Common Stock in the
over-the-counter market on the relevant date as reported by Pink OTC Markets Inc. or similar
organization. If the Common Stock is not so quoted, the “Last Reported Sale Price” of the Common
Stock will be determined by a U.S. nationally recognized independent investment banking firm
selected by the Company for this purpose.




          “Make-Whole Conversion Rate Adjustment” has the meaning specified in Section 5.03(a).




          “Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental
Change under clause (a) or (b) of the definition thereof (in the case of any Fundamental Change
described in clause (b) of the definition thereof, determined without regard to the proviso in such
clause (b) but subject to the three provisos immediately following clause (e) of the definition of
Fundamental Change.




          “Make-Whole Fundamental Change Period” has the meaning specified in Section 5.03(a).




          “Market Disruption Event” means (a) a failure by the primary exchange or quotation system on
which the Common Stock trades or is quoted, as the case may be, to open for trading during its
regular trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time,
on any Trading Day for the Common Stock of an aggregate one-half hour period, of any suspension or
limitation imposed on trading (by reason of movements in price exceeding limits permitted by the
stock exchange or otherwise) in the Common Stock or in any options, contracts or future contracts
relating to the Common Stock.




          “Maturity Date” means May 15, 2014.




          “Merger Event” has the meaning specified in Section 5.06.




          “Note” has the meaning specified in the Preamble.




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




          “Notice of Conversion” has the meaning specified in Section 5.02(b).




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





6









 








          “Paying Agent” means any Person (including the Company acting as Paying Agent) authorized by
the Company to pay the principal of or interest (including Additional Interest, if any) of any
Notes on behalf of the Company.




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




          “Predecessor Note” of any particular Note means every previous Note evidencing all or a
portion of the same debt as that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 2.07 of the Base Indenture in lieu
of or in exchange for a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Note that it replaces.




          “Prospectus” means the prospectus dated October 4, 2006 as supplemented by the final
prospectus supplement dated May 7, 2009 relating to the offering and sale of the Notes.




          “Publicly Traded Securities” means shares of common stock that are traded on a national
securities exchange or that will be so traded when issued or exchanged in connection with a
Fundamental Change described in clause (a) or (b) of the definition thereof.




          “Record Date” has the meaning specified in Section 5.04(f).




          “Reference Property” has the meaning specified in Section 5.06(b).




          “Scheduled Trading Day” means any day that is scheduled to be a Trading Day.




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




          “Settlement Amount” has the meaning specified in Section 5.02(a).




          “Settlement Method” means, with respect to a conversion of Notes, the relative proportions of
cash and/or shares of Common Stock with which such conversion is settled under this Indenture, as
elected (or deemed elected) by the Company.




          “Settlement Notice” has the meaning specified in Section 5.02(a)(iii).




          “Significant Subsidiary” means, at any date of determination, any Subsidiary that would
constitute a “significant subsidiary” within the meaning of Article 1 of Regulation S-X promulgated
under the Securities Act as in effect on the date of this Supplemental Indenture.




          “Specified Dollar Amount” means an amount of cash per $1,000 principal amount of a converted
Note specified by the Company in the Settlement Notice related to such converted Note.




          “Spin-Off” has the meaning specified in Section 5.04(c).




          “Stock Price” means (a) in the case of a Make-Whole Fundamental Change described in clause (b)
of the definition of Fundamental Change in which holders of Common Stock receive solely cash
consideration in connection with such Make-Whole Fundamental Change, the amount of cash paid per
share of the Common Stock and (b) in the case of all other Make-Whole Fundamental Changes, the




7









 







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




          “Successor Company” means the resulting, surviving or transferee Person resulting from the
merger, consolidation, sale or lease of substantially all of its assets of the Company.




          “Supplemental Indenture” has the meaning set forth in the recitals hereto.




          “Trading Day” means a day during which trading in the Common Stock generally occurs on the
primary exchange or quotation system on which Common Stock then trades or is quoted and there is no
Market Disruption Event. If the Common Stock (or other security for which a Last Reported Sale
Price or Daily VWAP must be determined) is not so traded or quoted, “Trading Day” means “Business
Day.”




          “Trigger Event” has the meaning specified in Section 5.04(c).




          “Trustee” has the meaning set forth in the recitals hereto.




          “Valuation Period” has the meaning specified in Section 5.04(c).




          “Weighted Average Consideration” has the meaning specified in Section 5.06(c)(iv).




ARTICLE 2

ISSUE, DESCRIPTION, EXECUTION, REGISTRATION

AND EXCHANGE OF NOTES




          Section 2.01. Designation and Amount. The Notes shall be designated as the “7.25% Convertible
Senior Notes due 2014.” The aggregate principal amount of Notes that may be authenticated and
delivered under this Indenture is initially limited to $172,500,000, and except for Notes
authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of
other Notes pursuant to Section 2.05, Section 2.06 and Section 2.07 of the Base Indenture and
Section 4.04, Section 5.02 and Section 6.03 hereof. The Company may, without the consent of the
Noteholders, reopen this Indenture and issue additional Notes under this Indenture with the same
terms and with the same CUSIP number as the Notes in an unlimited aggregate principal amount,
provided that no such additional Notes may be issued unless they will be fungible with the Notes
for U.S. federal income tax and securities law purposes.




          Section 2.02. Form of Notes. The Notes and the Trustee’s certificate of authentication to be
borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, which
are incorporated in and made a part of this Indenture.




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




8









 








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




          A Global Note shall represent such principal amount of the Outstanding Notes as shall be
specified therein and shall provide that it shall represent the aggregate principal amount of
Outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of
Outstanding Notes represented thereby may from time to time be increased or reduced to reflect
repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount of Outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee,
in such manner and upon instructions given by the holder of such Notes in accordance with this
Indenture. Payment of principal (including any Fundamental Change Repurchase Price), accrued and
unpaid interest and Additional Interest, if any, on a Global Note shall be made to the holder of
such Note on the date of payment, unless a record date or other means of determining holders
eligible to receive payment is provided for herein.




          The terms and provisions contained in the form of Note attached as Exhibit A hereto shall
constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable,
the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.




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




          The Person in whose name any Note (or its Predecessor Note) is registered on the Security
Register at the close of business on any Interest Record Date with respect to any Interest Payment
Date shall be entitled to receive the interest (including Additional Interest, if any) payable on
such Interest Payment Date. Interest (including Additional Interest, if any) shall be payable at
the office or agency of the Company maintained by the Company for such purposes in The Borough of
Manhattan, City of New York, which shall initially be the office of the Trustee. The Company shall
pay interest (including Additional Interest, if any) (a) on any Notes in certificated form by check
mailed to the address of the Person entitled thereto as it appears in the Security Register or (b)
on any Global Note by wire transfer of immediately available funds to the account of the Depositary
or its nominee.




ARTICLE 3

DEFAULTS AND REMEDIES




          Section 3.01. Events of Default. Each of the following shall be an “Event of Default”:




          (a) default in the payment in respect of the principal of any Note at its maturity upon
required repurchase, upon declaration of acceleration or otherwise;





9









 








          (b) default in the payment of any interest (including Additional Interest, if any) upon any
Note when it becomes due and payable, and continuance of such default for a period of 30 days;




          (c) default in the performance, or breach, of any covenant or agreement of the Company in this
Indenture (other than a covenant or agreement a default in whose performance or whose breach is
specifically dealt with in clauses (a), (b), (d), (f) or (g) of this Section 3.01), and continuance
of such default or breach for a period of 60 days after written notice thereof has been given to
the Company by the Trustee or to the Company and the Trustee by the holders of at least 25% in
aggregate principal amount of the Outstanding Notes;




          (d) a default or defaults under any bonds, debentures, notes or other evidences of
indebtedness (other than the Notes) by the Company or any Subsidiary that is a Significant
Subsidiary (or any group of Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary) having, individually or in the aggregate, a principal or similar amount outstanding of
at least $75.0 million, whether such indebtedness now exists or shall hereafter be created, which
default or defaults shall have resulted in the acceleration of the maturity of such indebtedness
prior to its express maturity or shall constitute a failure to pay at least $75.0 million of such
indebtedness when due and payable after the expiration of any applicable grace period with respect
thereto, without such indebtedness having been paid or discharged within a period of 30 days after
the occurrence of such indebtedness becoming or being declared due and payable or the failure to
pay, as the case may be;




          (e) the failure to comply with the obligations to convert the Notes into Common Stock, cash or
a combination of cash and Common Stock, as applicable, in accordance with Section 5.02 upon
exercise of a holder’s conversion right and such failure continues for five days;




          (f) the failure to timely issue a Fundamental Change Company Notice in accordance with Section
6.01(b); or




          (g) (i) the Company, any Subsidiary that is a Significant Subsidiary or any group of
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, pursuant to or
within the meaning of the Bankruptcy Law:





     (a) commences a voluntary case,




     (b) consents to the entry of an order for relief against it in an
involuntary case,




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




     (d) makes a general assignment for the benefit of its creditors, or




     (e) generally is not paying its debts as they become due; or




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




     (a) is for relief against the Company or any Subsidiary that is a
Significant Subsidiary or any group of Subsidiaries that, taken together,
would constitute a Significant Subsidiary, in an involuntary case;



10









 






     (b) appoints a custodian of the Company or any Subsidiary that is a
Significant Subsidiary or any group of Subsidiaries that, taken together,
would
constitute a Significant Subsidiary or for all or substantially all of
the property of the Company or any of its Subsidiaries; or




     (c) orders the liquidation of the Company or any Subsidiary that is a
Significant Subsidiary or any group of Subsidiaries that, taken together,
would constitute a Significant Subsidiary and the order or decree remains
unstayed and in effect for 60 consecutive days.



          Section 3.02. Acceleration. In case one or more Events of Default shall have occurred and be
continuing (whatever the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental body), then, and in
each and every such case (other than an Event of Default specified in Section 3.01(g) with respect
to the Company (and not solely with respect to a Significant Subsidiary of the Company, or a group
of Subsidiaries of the Company that in aggregate would constitute a Significant Subsidiary of the
Company), unless the principal of all of the Notes shall have already become due and payable (or
waived), either the Trustee or the holders of at least 25% in aggregate principal amount of the
Notes then Outstanding by notice in writing to the Company (and to the Trustee if given by
Noteholders), may declare 100% of the principal of and accrued and unpaid interest and accrued and
unpaid Additional Interest, if any, on all the Notes to be due and payable immediately, and upon
any such declaration the same shall become and shall automatically be immediately due and payable,
anything in this Indenture or in the Notes contained to the contrary notwithstanding.




          If an Event of Default specified in Section 3.01(g) with respect to the Company (and not
solely with respect to a Significant Subsidiary of the Company, or a group of Subsidiaries of the
Company that in aggregate would constitute a Significant Subsidiary of the Company) occurs and is
continuing, the principal of all the Notes and accrued and unpaid interest and accrued and unpaid
Additional Interest, if any, shall be immediately due and payable. This provision, however, is
subject to the conditions that if, at any time after the principal of the Notes shall have been so
declared due and payable, and before any judgment or decree for the payment of the monies due shall
have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with
the Trustee a sum sufficient to pay installments of accrued and unpaid interest and accrued and
unpaid Additional Interest, if any, upon all Notes and the principal of any and all Notes that
shall have become due otherwise than by acceleration (with interest on overdue installments of
accrued and unpaid interest and accrued and unpaid Additional Interest, if any (to the extent that
payment of such interest is enforceable under applicable law), and on such principal at the rate
borne by the Notes at such time) and amounts due to the Trustee pursuant to Section 7.06 of the
Base Indenture, then and in every such case the holders of a majority in aggregate principal amount
of the Notes then Outstanding, by written notice to the Company and to the Trustee, may waive all
Defaults or Events of Default with respect to the Notes (other than a Default or an Event of
Default resulting from a failure to repurchase any Notes when required upon a Fundamental Change or
a failure to deliver, upon conversion, cash, shares of Common Stock or a combination of cash and
shares of Common Stock, as applicable, due upon conversion) and rescind and annul such declaration
and its consequences (other than a declaration or consequences, as the case may be, resulting from
a failure to repurchase any Notes when required upon a Fundamental Change or a failure to deliver,
upon conversion, cash, shares of Common Stock or a combination of cash and shares of Common Stock,
as applicable, due upon conversion) and such Default (other than a Default




11









 







resulting from a failure
to repurchase any Notes when required upon a Fundamental Change or a failure to deliver, upon
conversion, cash, shares of Common Stock or a combination of cash and shares of Common Stock, as
applicable, due upon conversion) shall cease to exist, and any Event of Default arising therefrom
(other than a Default resulting from a failure to repurchase any Notes when required upon a
Fundamental Change or a failure to deliver, upon conversion, cash, shares of Common Stock or a
combination of cash and shares of Common
Stock, as applicable, due upon conversion) shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver or rescission and annulment shall extend to or shall
affect any subsequent Default or Event of Default, or shall impair any right consequent thereon.
In case the Trustee shall have initiated proceedings to enforce any right with respect to the Notes
and such proceedings shall have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined adversely to the Trustee, then and
in every such case, subject to any determination in such proceedings, the Company and the Trustee
shall be restored respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company and the Trustee shall continue as though no such proceedings had
been taken.




          Section 3.03. Collection of Indebtedness and Suits for Enforcement by Trustee.




          (a) The Company covenants that (i) in case it shall default in the payment of any installment
of interest (including Additional Interest, if any) on any of the Notes, and such default shall
have continued for a period of 90 Business Days, (ii) in case it shall default in the payment of
the principal of any of the Notes when the same shall have become due and payable, whether upon
maturity of the Notes or upon redemption or upon declaration or otherwise, (iii) in case it shall
fail to repurchase any Notes when required or (iv) in case it shall fail to deliver cash, shares of
Common Stock or a combination of cash and shares of Common Stock, as applicable, when required,
upon conversion of the Notes, then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Notes, the whole amount that then shall have become
due and payable on all such Notes for principal or interest (including Additional Interest, if
any), or both, as the case may be, with interest upon the overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) upon overdue installments of interest
(including Additional Interest, if any) at the rate per annum expressed in the Notes; and, in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of
collection, and the amount payable to the Trustee under Section 7.06 of the Base Indenture.




          (b) If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law or equity out of the property of
the Company or other obligor upon the Notes, wherever situated.




          (c) In case of any receivership, insolvency, liquidation, bankruptcy, reorganization,
readjustment, arrangement, composition or judicial proceedings affecting the Company, or its
creditors or property, the Trustee shall have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall (except as may be otherwise provided by
law) be entitled to file such proofs of claim and other papers and documents as may be necessary or
advisable in order to have the claims of the Trustee and of the holders of Notes allowed for the
entire amount due and payable by the Company under the Indenture at the date of institution of such
proceedings and for any additional amount that may become due and payable by the Company after such
date, and to collect and receive any moneys or other property payable or deliverable on any such
claim, and to distribute the same after the deduction of the amount payable to the Trustee under
Section 7.06 of the Base Indenture; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of Notes to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of such





12









 







payments directly
to such Noteholders, to pay to the Trustee any amount due it under Section 7.06 of the Base
Indenture.




          (d) All rights of action and of asserting claims under this Indenture, or under any of the
terms established with respect to Notes, may be enforced by the Trustee without the possession of
any of such Notes, or the production thereof at any trial or other proceeding relative thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee
of any amounts due under Section 7.06 of the Base Indenture, be for the ratable benefit of the
holders of the Notes.




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




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




          Section 3.04. Application of Moneys Collected. Any moneys collected by the Trustee pursuant
to this Article with respect to the Notes shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal
(or premium, if any) or interest (including Additional Interest, if any), upon presentation of the
Notes, and notation thereon of the payment, if only partially paid, and upon surrender thereof if
fully paid:





FIRST: To the payment of all obligations of the Company under Section 7.06(a) of
the Base Indenture to compensate and indemnify the Trustee and to pay or reimburse
the Trustee for reasonable expenses, disbursements and advances and the Trustee
shall have a lien upon such moneys collected to satisfy such payment obligations;




SECOND: To the payment of the amounts then due and unpaid upon the Notes for
principal and interest (including Additional Interest, if any), including, for the
avoidance of doubt, amounts payable in respect of any Conversion Obligation payable
in settlement thereof, in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Notes for principal and interest (including
Additional Interest, if any), respectively; and




THIRD: To the payment of the remainder, if any, to the Company or any other Person
lawfully entitled thereto.



          Section 3.05. Limitation on Suits. No holder of any Note shall have any right by virtue of or
by availing itself of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture, or for the appointment of a
receiver, trustee, liquidator, custodian or other similar official, or for any other remedy
hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an
Event of Default and of the continuance thereof, as hereinbefore provided; (ii) the holders of not
less than 25% in aggregate principal amount of the Notes then Outstanding shall have made written
request to the Trustee to institute such




13









 







action, suit or proceeding in its own name as Trustee
hereunder; (iii) such holders shall have offered to the Trustee such security or indemnity
reasonably satisfactory to it against any loss, liability or expense to be incurred therein or
thereby, (iv) the Trustee for sixty days after its receipt of such notice, request and
offer of indemnity, shall have neglected or refused to institute any such action, suit or
proceeding and (v) no direction that, in the opinion of the Trustee, is inconsistent with such
written request shall have been given to the Trustee by the holders of a majority in principal
amount of the Notes Outstanding within such sixty-day period pursuant to Section 3.08; it being
understood and intended, and being expressly covenanted by the taker and holder of every Note with
every other taker and holder and the Trustee that no one or more Noteholders shall have any right
in any manner whatever by virtue of or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other Noteholder, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and common benefit of all Noteholders
(except as otherwise provided herein). For the protection and enforcement of this Section 3.05,
each and every Noteholder and the Trustee shall be entitled to such relief as can be given either
at law or in equity.




          Notwithstanding any other provision of this Indenture and any provision of any Note, the right
of any Noteholder to receive payment of the principal of (including the Fundamental Change
Repurchase Price upon repurchase pursuant to Section 6.01), and accrued and unpaid interest and
accrued and unpaid Additional Interest, if any, on such Note, on or after the respective due dates
expressed or provided for in such Note or in this Indenture, or to institute suit for the
enforcement of any such payment on or after such respective dates against the Company shall not be
impaired or affected without the consent of such Noteholder.




          Anything in this Indenture or the Notes to the contrary notwithstanding, the holder of any
Note, without the consent of either the Trustee or the holder of any other Note, in its own behalf
and for its own benefit, may enforce, and may institute and maintain any proceeding suitable to
enforce, its rights of conversion as provided herein.




          Section 3.06. Rights and Remedies Cumulative; Delay or Omission Not Waiver. Except as
otherwise provided in Section 2.07 of the Base Indenture, all powers and remedies given by this
Article to the Trustee or to the Noteholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies available to the Trustee or the
holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or otherwise established
with respect to such Securities.




          No delay or omission of the Trustee or of any holder of any of the Notes to exercise any right
or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any
such right or power, or shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 3.05, every power and remedy given by this
Article or by law to the Trustee or the Noteholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the Noteholders.




          Section 3.07. Additional Interest. Notwithstanding anything in this Indenture or in the Notes
to the contrary, if the Company so elects, the sole remedy of Noteholders for an Event of Default
relating to any obligation to file reports as required under Section 5.03 of the Base Indenture (as
amended by Section 7.01 hereof) shall, for the first 180 days after the occurrence of such an Event
of Default which will be the 60th day after written notice is provided to the Company in accordance
with Section 3.01(c)), consist exclusively of the right to receive Additional Interest on the Notes
at an annual rate equal to (x) 0.25% of the Outstanding principal amount of the Notes for the first
90 days an Event of Default is continuing in such 180-day period and (y) 0.50% of the Outstanding
principal amount of the Notes for the




14









 







remaining 90 days an Event of Default is continuing in such
180-day period. Additional Interest shall be payable in arrears on each Interest Payment Date
following the occurrence of such Event of Default in the same manner as regular interest on the
Notes. The Company may elect to pay Additional Interest as the
sole remedy under this Section 3.07 by giving notice to the holders, the Trustee and Paying
Agent of such election on or before the close of business on the 5th Business Day after the date on
which such Event of Default otherwise would occur. If the Company fails to timely give such notice
or pay Additional Interest, the Notes will be immediately subject to acceleration as provided in
Section 3.02. On the 181st day after such Event of Default (if such violation is not cured or
waived prior to such 181st day), the Notes will be subject to acceleration as provided in Section
3.02. This Section 3.07 shall not affect the rights of the Noteholders in the event of the
occurrence of any other Event of Default. In the event the Company does not elect to pay
Additional Interest upon an Event of Default in accordance with this Section 3.07, the Notes will
be subject to acceleration as provided in Section 3.02. Whenever in the Base Indenture there is
mentioned, in any context, the payment of interest on, or in respect of, any Note, such mention
shall be deemed to include mention of the payment of “Additional Interest” provided for in this
Section 3.07 to the extent that, in such context, Additional Interest is, was or would be payable
in respect thereof pursuant to the provisions of such sections, and express mention of the payment
of Additional Interest (if applicable) in any provision shall not be construed as excluding
Additional Interest in those provisions where such express mention is not made.




          Section 3.08. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders. The
holders of a majority in aggregate principal amount of the Notes at the time Outstanding shall have
the right to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the Trustee with respect to
Notes; provided, however, that (a) such direction shall not be in conflict with any rule of law or
with this Indenture, and (b) the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction. The Trustee may refuse to follow any direction that
it determines is unduly prejudicial to the rights of any other holder or that would involve the
Trustee in personal liability. The holders of a majority in aggregate principal amount of the
Notes at the time Outstanding may on behalf of the holders of all of the Notes waive any past
Default or Event of Default hereunder (except (i) a default with respect to the nonpayment of
principal or interest, including Additional Interest, if any, (ii) a failure by the Company to
repurchase any Notes when required or (iii) a failure by the Company to deliver cash, shares of
Common Stock or a combination of cash and shares of Common Stock, as applicable, upon conversion of
the Notes) and rescind any acceleration with respect to the Notes and its consequences if (a)
rescission would not conflict with any judgment or decree of a court of competent jurisdiction and
(b) all existing Events of Default, other than the nonpayment of the principal of and interest,
including Additional Interest, if any, on the Notes that have become due solely by such declaration
of acceleration, have been cured or waved. Upon any such waiver the Company, the Trustee and the
holders of the Notes shall be restored to their former positions and rights hereunder; but no such
waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as
permitted by this Section 3.08, said Default or Event of Default shall for all purposes of the
Notes and this Indenture be deemed to have been cured and to be not continuing; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair any right consequent
thereon.




          Section 3.09. Notice of Defaults. The Trustee shall, within ninety days after the occurrence
and continuance of a Default of which a Responsible Officer has actual knowledge, mail to all
Noteholders as the names and addresses of such holders appear upon the Security Register, notice of
all Defaults known to a Responsible Officer, unless such Defaults shall have been cured or waived
before the giving of such notice; and provided that, except in the case of a Default in the payment
of the principal of, accrued and unpaid interest or accrued and unpaid Additional Interest, if any,
on any of the Notes, including without limiting the generality of the foregoing any Default in the
payment of any Fundamental




15









 







Change Repurchase Price, then in any such event the Trustee shall be
protected in withholding such notice if and so long as a committee of Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the interests of the
Noteholders. The Company is required to deliver
to the Trustee, within 30 days of the occurrence thereof, written notice of any events which
would constitute a default, their status and what action the Company is taking or proposes to take
in respect thereof.




          Section 3.10. Undertaking to Pay Costs. All parties to this Indenture agree, and each holder
of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in its
discretion, require, in any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such suit and that such court
may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in such suit, having due regard for the merits and good faith of the
claims or defenses made by such party litigant; provided that the provisions of this Section 3.10
(to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Noteholder, or group of Noteholders, holding in the aggregate more than 10% in
principal amount of the Notes at the time Outstanding, or to any suit instituted by any Noteholder
for the enforcement of the payment of the principal of accrued and unpaid interest or accrued and
unpaid Additional Interest, if any, on any Note (including, but not limited to, the Fundamental
Change Repurchase Price with respect to the Notes being repurchased as provided in this Indenture)
on or after the due date expressed or provided for in such Note or to any suit for the enforcement
of the right to convert any Note in accordance with the provisions of Article 5.




ARTICLE 4

SUPPLEMENTAL INDENTURES




          Section 4.01. Supplemental Indentures Without Consent of Noteholders. The Company and the
Trustee, at the Company’s expense, may from time to time and at any time enter into an indenture or
indentures supplemental to this Indenture for one or more of the following purposes:




          (a) to cure any ambiguity, omission, defect or inconsistency in this Indenture or the Notes in
a manner that does not materially adversely affect the rights of any holder;




          (b) to conform the terms of the Indenture or the Notes to the description thereof in the
Prospectus;




          (c) to provide for the assumption by a Successor Company of the obligations of the Company
under this Indenture pursuant to Article 10 of the Base Indenture (as amended by Section 7.01
hereof);




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




          (e) to secure the Notes;




          (f) to add to the covenants of the Company such further covenants, restrictions or conditions
for the benefit of the Noteholders or surrender any right or power conferred upon the Company;




          (g) to make any change that does not materially adversely affect the rights of any holder of
Notes or to execute and deliver a supplemental indenture pursuant to the provisions of Section 5.06
of this Supplemental Indenture;





16









 








          (h) to appoint a successor Trustee with respect to the Notes; or




          (i) to comply with any requirements of the Trust Indenture Act.




          For the avoidance of doubt, this Article 4 shall not prevent the Company from entering into
indentures supplemental to the Base Indenture for the purpose of establishing or amending the terms
and conditions applicable to any series of Securities other than the Notes; provided that such
supplemental indenture shall have no applicability to the Notes other than as permitted hereby and
provided therein.




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




          Any supplemental indenture authorized by the provisions of this Section 4.01 may be executed
by the Company and the Trustee without the consent of the holders of any of the Notes at the time
Outstanding, notwithstanding any of the provisions of Section 4.02.




          Section 4.02. Supplemental Indentures With Consent of Noteholders. With the consent of the
holders of at least a majority in aggregate principal amount of the Notes at the time Outstanding
(including, without limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes), the Company and the Trustee, at the Company’s expense, may from time
to time and at any time enter into an indenture or indentures supplemental to this Indenture for
the purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or any supplemental indenture or of modifying in any manner the rights
of the holders of the Notes or waiving any past default; provided, however, that no such
supplemental indenture shall:




          (a) reduce the percentage in aggregate principal amount of Notes Outstanding necessary to
modify or amend this Indenture or to waive any past Default or Event of Default;




          (b) reduce the rate or extend the stated time for payment of interest, including Additional
Interest, if any, on any Note;




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




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




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




          (f) make any Note payable in a currency other than that stated in the Note or change any
Note’s place of payment;




          (g) change the ranking of the Notes; or





17












 





          (h) impair the right of any holder to receive payment of principal of and interest, including
Additional Interest, if any, on such holder’s Notes on or after the due dates therefor or to
institute suit for the enforcement of any payment on or with respect to such holder’s Note,




in each case without the consent of each holder of an Outstanding Note affected.




          Upon the written request of the Company, and upon the filing with the Trustee of evidence of
the consent of Noteholders as aforesaid and subject only to Section 4.05, the Trustee shall join
with the Company in the execution of such supplemental indenture unless such supplemental indenture
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental
indenture.




          It shall not be necessary for the consent of the Noteholders under this Section 4.02 to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof. After an amendment under this Indenture becomes
effective, the Company shall provide all the holders a notice briefly describing such amendment.
However, the failure to give such notice to all the holders, or any defect in the notice, will not
impair or affect the validity of the amendment.




          Section 4.03. Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article 4, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Company and the
Noteholders shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.




          Section 4.04. Notation on Notes. Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article 4 may, at the Company’s expense,
bear a notation as to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Notes so modified as to conform, in the opinion of the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may, at the Company’s
expense, be prepared and executed by the Company, authenticated by the Trustee or Authenticating
Agent and delivered in exchange for the Notes then Outstanding, upon surrender of such Notes then
Outstanding.




          Section 4.05. Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee. In
addition to the documents required by Section 13.07 of the Base Indenture, the Trustee shall be
entitled to receive, upon request, an Officers’ Certificate and/or an Opinion of Counsel (each as
defined in Section 1.01 of the Base Indenture) to the effect that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article 4 and is permitted or
authorized by the Indenture and may rely on any such Officers’ Certificate and/or Opinion of
Counsel as conclusive evidence that such supplemental indenture so complies and is so permitted or
authorized.




          Section 4.06. Notice of Execution of Supplemental Indenture. After the execution by the
Company and the Trustee of any supplemental indenture with respect to the Notes pursuant to the
provisions of this Article, the Trustee shall provide a written notice, prepared by the Company,
setting forth in general terms the substance of such supplemental indenture, to the Noteholders
affected thereby as their names and addresses appear upon the Security Register. Any failure of
the Trustee to provide



18









 






such notice, or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.




ARTICLE 5

CONVERSION OF NOTES




          Section 5.01. Conversion Privilege.




          (a) Upon compliance with the provisions of this Article 5, a Noteholder shall have the right,
at such holder’s option, to convert all or any portion (if the portion to be converted is $1,000
principal amount or an integral multiple thereof) of such Note prior to the close of business on
the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an
initial conversion rate (the “Conversion Rate”) of 218.8184 shares of Common Stock (subject to
adjustment as provided in Section 5.03 and Section 5.04) per $1,000 principal amount of Notes
(subject to the settlement provisions of Section 5.02, the “Conversion Obligation”).




          Section 5.02. Conversion Procedure.




          (a) Subject to this Section 5.02, upon any conversion of any Note, the Company shall deliver
to converting Noteholders, in respect of each $1,000 principal amount of Notes being converted,
solely cash, solely shares of Common Stock or a combination of cash and Common Stock (the
“Settlement Amount”), at the Company’s election, as set forth in this Section 5.02.





     (i) All conversions on or after March 15, 2014 will be settled using the same
Settlement Method.




     (ii) Prior to March 15, 2014, the Company will elect (or be deemed to have elected) the
same Settlement Method for all conversions occurring on any given Conversion Date. Except
for any conversions that occur on or after March 15, 2014, the Company need not elect the
same Settlement Method with respect to conversions that occur on different Trading Days.




     (iii) If, in respect of any Conversion Date (or the period beginning on, and including,
March 15, 2014 and ending on, and including, the second Scheduled Trading Day immediately
preceding the Maturity Date, as the case may be), the Company elects to deliver a notice
(the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion
Date (or such period, as the case may be), the Company, through the Trustee, shall deliver
such Settlement Notice to converting Noteholders no later than the second Business Day
immediately following the relevant Conversion Date. Such Settlement Notice shall specify
whether the Company shall satisfy its Conversion Obligation by (A) delivering solely shares
of Common Stock, (B) paying solely cash or (C) paying and delivering, as the case may be, a
combination of cash and shares of Common Stock. In the case of an election to pay and
deliver, as the case may be, a combination of cash and shares of Common Stock, the relevant
Settlement Notice shall indicate the Specified Dollar Amount. If the Company does not
deliver a Settlement Notice, the Company will be deemed to have elected to deliver solely
shares of Common Stock in respect of its Conversion Obligation.




     (iv) The Settlement Amount in respect of any conversion of Notes shall be computed as
follows:




     (A) if the Company elects to satisfy its Conversion Obligation in respect of
such conversion by delivering solely Common Stock, the Company will deliver to the



19









 






converting Noteholder a number of shares of Common Stock equal to (1)(i) the
aggregate principal amount of Notes to be converted, divided by (ii) $1,000,
multiplied by (2) the then-applicable Conversion Rate on the date the converting
Noteholder becomes a record owner of Common Stock;




     (B) if the Company elects to satisfy its Conversion Obligation in respect of
such conversion by paying solely cash, the Company shall pay to the converting
Noteholder, cash in an amount per $1,000 principal amount of Notes being converted
equal to the sum of the Daily Conversion Values for each of the twenty consecutive
Trading Days during the related Cash Settlement Averaging Period; and




     (C) if the Company elects to satisfy its Conversion Obligation in respect of
such conversion by paying and delivering, as the case may be, a combination of cash
and shares of Common Stock, if any, the Company shall pay and deliver to the
converting Noteholder, as the case may be, in respect of each $1,000 principal
amount of Notes being converted, a Settlement Amount equal to the sum of the Daily
Settlement Amounts for each of the twenty consecutive Trading Days during the
related Cash Settlement Averaging Period.




     (v) The Company will also deliver to each converting Noteholder cash in lieu of
fractional shares of Common Stock as set forth pursuant to clause (l) below.




     (vi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if
applicable) shall be determined by the Company promptly following the last day of the Cash
Settlement Averaging Period. Promptly after such determination of the Daily Settlement
Amounts or the Daily Conversion Values, as the case may be, and the amount of cash
deliverable in lieu of fractional shares (if any), the Company shall notify the Trustee and
the Conversion Agent of the Daily Settlement Amounts or the Daily Conversion Values, as the
case may be, and the amount of cash deliverable in lieu of fractional shares of Common
Stock. The Trustee and the Conversion Agent shall be entitled to rely exclusively on the
notice given by the Company and shall have no responsibility for any such determination.



          (b) Before any holder of a Note shall be entitled to convert the same as set forth above, such
holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in
effect at that time and, if required by Section 5.02(h), pay funds equal to the amount of interest
(including Additional Interest, if any) payable on the next Interest Payment Date to which such
holder is not entitled as set forth in Section 5.02(h) and, as set forth in Section 5.02(e), all
transfer or similar taxes, if any, and (ii) in the case of a Note issued in certificated form, (1)
complete and manually sign and deliver an irrevocable notice to the Conversion Agent in the form on
the reverse of such certificated Note (or a facsimile thereof) (Exhibit B hereto) (a “Notice of
Conversion”) at the office of the Conversion Agent and shall state in writing therein the principal
amount of Notes to be converted and the name or names (with addresses) in which such holder wishes
the certificate or certificates for any shares of Common Stock, if any, to be delivered upon
settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed
to the Company or in blank, at the office of the Conversion Agent, (3) if required by Section
5.02(h), pay funds equal to interest (including Additional Interest, if any) payable on the next
Interest Payment Date to which such holder is not entitled as set forth in Section 5.02(h), (4)
furnish appropriate endorsements and transfer documents, if any, and (5) pay all transfer or
similar taxes, if any, as set forth in Section 5.02(e). The Trustee (and if different, the
relevant Conversion Agent) shall notify the Company of any conversion pursuant to this Article 5 on
the Conversion Date. No Notice of Conversion with respect to any Notes may be surrendered by a
holder thereof if such holder has also delivered a Fundamental Change Repurchase Notice to the
Company in respect of such Notes and not



20









 






validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 6.02,
unless the Company defaults in the payment of the Fundamental Change Repurchase Price.




          (c) A Note shall be deemed to have been converted immediately prior to the close of business
on the date (the “Conversion Date”) that the holder has complied with all applicable requirements
set forth in clause (b) of this Section 5.02. The Company shall pay or deliver, as the case may
be, such cash and/or shares of Common Stock on the third Trading Day immediately following the last
Trading Day of the Cash Settlement Averaging Period; provided, that if the Company elects to
fulfill its Conversion Obligation solely in shares of Common Stock, the Company shall deliver such
Common Stock on the third Trading Day immediately following the relevant Conversion Date; provided,
further, that if prior to the relevant Conversion Date, the Common Stock has been replaced by
Reference Property consisting solely of cash, pursuant to Section 5.06(b), the Company shall pay
such cash on the third Trading Day immediately following the relevant Conversion Date.
Notwithstanding the foregoing, if any information required to calculate the Conversion Obligation
is not available as of the applicable settlement date, the Company will deliver the additional
shares of Common Stock resulting from such adjustment on the third Trading Day after the earliest
Trading Day on which such calculation can be made. If any shares of Common Stock are due to
converting Noteholders, the Company shall issue or cause to be issued, and deliver to the
Conversion Agent or to such Noteholder, or such Noteholder’s nominee or nominees, certificates or a
book-entry transfer through the Depositary for the number of full shares of Common Stock to which
such Noteholder shall be entitled in satisfaction of such Conversion Obligation.




          (d) In case any Note shall be surrendered for partial conversion, the Company shall execute
and the Trustee shall authenticate and deliver to or upon the written order of the holder of the
Note so surrendered, without charge to such holder, a new Note or Notes in authorized denominations
in an aggregate principal amount equal to the unconverted portion of the surrendered Note.




          (e) If a holder submits a Note for conversion, the Company shall pay all stamp and other
duties, if any, that may be imposed by the United States or any political subdivision thereof or
taxing authority thereof or therein with respect to the issuance of shares of Common Stock, if any,
upon the conversion. However, the holder shall pay any such tax that is due because the holder
requests any shares of Common Stock to be issued in a name other than the holder’s name. The
Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock
being issued in a name other than the holder’s name until the Trustee receives a sum sufficient to
pay any tax that 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.




          (f) Except as provided in Section 5.04, no adjustment shall be made for dividends on any
shares of Common Stock issued upon the conversion of any Note as provided in this Article.




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




          (h) Upon conversion, a Noteholder shall not receive any additional cash payment for accrued
and unpaid interest and Additional Interest, if any, except as set forth in this Section 5.02(h).
The Company’s settlement of the Conversion Obligations pursuant to Section 5.02 shall be deemed to
satisfy its obligation to pay the principal amount of the Note and accrued and unpaid interest and
Additional Interest, if any, to, but not including, the Conversion Date. As a result, accrued and
unpaid interest and Additional Interest, if any, to, but not including, the Conversion Date shall
be deemed to be paid in full



21









 






rather than cancelled, extinguished or forfeited. Notwithstanding the preceding sentence, if
Notes are converted after the close of business on a Interest Record Date, holders of such Notes as
of the close of business on the Interest Record Date will receive the interest and Additional
Interest, if any, payable on such Notes on the corresponding Interest Payment Date notwithstanding
the conversion. Notes surrendered for conversion during the period from the close of business on
any Interest Record Date to the opening of business on the corresponding Interest Payment Date must
be accompanied by payment of an amount equal to the interest and Additional Interest, if any,
payable on the Notes so converted; provided, however, that no such payment shall be required (1) if
the Company has specified a Fundamental Change Repurchase Date that is after a Interest Record Date
but on or prior to the corresponding Interest Payment Date, (2) to the extent of any Defaulted
Interest, if any, existing at the time of conversion with respect to such Note or (3) if the Notes
are surrendered for conversion after the close of business on the Interest Record Date immediately
preceding the Maturity Date. Except as set forth in this Section 5.02(h), no payment or adjustment
will be made for accrued and unpaid interest and Additional Interest, if any, on converted Notes.




          (i) The Person in whose name the certificate for any shares of Common Stock delivered upon
conversion is registered shall be treated as a stockholder of record as of the close of business on
the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation
solely in shares of Common Stock) or the last Trading Day of the related Cash Settlement Averaging
Period (in the case of any other Settlement Method), as the case may be; provided, however, if such
Conversion Date or such last Trading Day of the Cash Settlement Averaging Period occurs on any date
when the stock transfer books of the Company shall be closed, such occurrence shall not be
effective to constitute the Person or Persons entitled to receive any such shares of Common Stock
due upon conversion as the record holder or holders of such shares of Common Stock on such date,
but such occurrence 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. Upon conversion
of a Note, such Note shall cease to be Outstanding and such Person shall no longer be a Noteholder
with respect to such Note.




          (j) For each Note surrendered for conversion, if the Company has elected to deliver a
combination of cash and shares of Common Stock in respect of its Conversion Obligation, the number
of full shares that shall be issued upon conversion thereof shall be computed on the basis of the
aggregate Daily Settlement Amounts for the applicable Cash Settlement Averaging Period and any
fractional shares remaining after such computation shall be paid in cash. If more than one Note
shall be surrendered for conversion at one time by the same holder, the number of full shares that
shall be issued upon conversion thereof shall be computed on the basis of the aggregate principal
amount of the Notes (or specified portions thereof) so surrendered. The Company shall not issue
fractional shares of Common Stock upon conversion of Notes. Instead, the Company shall pay cash in
lieu of fractional shares based on the Daily VWAP on the relevant Conversion Date (if the Company
elects to satisfy its Conversion Obligation solely in shares of Common Stock) or based on the Daily
VWAP on the last Trading Day of the relevant Cash Settlement Averaging Period (in the case of any
other Settlement Method).




          Section 5.03. Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection
with Make-Whole Fundamental Changes.




          (a) Notwithstanding anything herein to the contrary, the Conversion Rate applicable to each
Note that is surrendered for conversion, in accordance with this Article 5, at any time from, and
including, the effective date (the “Effective Date”) of a Make-Whole Fundamental Change until, and
including, the close of business on the second Scheduled Trading Day immediately preceding the
related Fundamental Change Repurchase Date corresponding to such Make-Whole Fundamental Change, or
the twentieth Trading Day immediately following the Effective Date of such Make-Whole Fundamental



22









 






Change (in the case of a Make-Whole Fundamental Change that does not constitute a Fundamental
Change by virtue of the parenthetical in the definition of Make-Whole Fundamental Change) (such
period, the “Make-Whole Fundamental Change Period”), shall be increased to an amount equal to the
Conversion Rate that would, but for this Section 5.03, otherwise apply to such Note pursuant to
this Article 5, plus an amount equal to the Make-Whole Conversion Rate Adjustment.




          As used herein, “Make-Whole Conversion Rate Adjustment” means, with respect to a Make-Whole
Fundamental Change, the amount set forth in the following table that corresponds to the Effective
Date of such Make-Whole Fundamental Change and the Stock Price for such Make-Whole Fundamental
Change, all as determined by the Company:




Make-Whole Conversion Rate Adjustment

(per $1,000 principal amount of Notes)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price
	Effective Date	 	$3.97	 	$4.25	 	$4.50	 	$4.75	 	$5.00	 	$7.50	 	$10.00	 	$12.50	 	$15.00	 	$20.00	 	$25.00	 	$30.00	 	$40.00	 	$60.00
	 
	May 13, 2009
	 	 	33.071	 	 	 	33.071	 	 	 	33.071	 	 	 	33.071	 	 	 	31.713	 	 	 	19.834	 	 	 	14.185	 	 	 	10.868	 	 	 	8.686	 	 	 	5.994	 	 	 	4.409	 	 	 	3.375	 	 	 	2.130	 	 	 	1.000	 
	May 15, 2010
	 	 	33.071	 	 	 	33.071	 	 	 	33.071	 	 	 	30.998	 	 	 	29.085	 	 	 	17.885	 	 	 	12.775	 	 	 	9.818	 	 	 	7.879	 	 	 	5.486	 	 	 	4.069	 	 	 	3.138	 	 	 	2.006	 	 	 	0.960	 
	May 15, 2011
	 	 	33.071	 	 	 	32.214	 	 	 	29.622	 	 	 	27.406	 	 	 	25.495	 	 	 	15.041	 	 	 	10.671	 	 	 	8.220	 	 	 	6.630	 	 	 	4.671	 	 	 	3.506	 	 	 	2.735	 	 	 	1.784	 	 	 	0.884	 
	May 15, 2012
	 	 	33.071	 	 	 	27.934	 	 	 	24.992	 	 	 	22.562	 	 	 	20.534	 	 	 	10.859	 	 	 	7.558	 	 	 	5.834	 	 	 	4.737	 	 	 	3.391	 	 	 	2.589	 	 	 	2.055	 	 	 	1.389	 	 	 	0.736	 
	May 15, 2013
	 	 	33.071	 	 	 	22.646	 	 	 	18.673	 	 	 	15.571	 	 	 	13.140	 	 	 	4.529	 	 	 	2.997	 	 	 	2.347	 	 	 	1.941	 	 	 	1.439	 	 	 	1.138	 	 	 	0.938	 	 	 	0.687	 	 	 	0.436	 
	May 15, 2014
	 	 	33.071	 	 	 	16.476	 	 	 	3.404	 	 	 	0.000	 	 	 	0.000	 	 	 	0.000	 	 	 	0.000	 	 	 	0.000	 	 	 	0.000	 	 	 	0.000	 	 	 	0.000	 	 	 	0.000	 	 	 	0.000	 	 	 	0.000	 






provided, however, that:





     (i) if the actual Stock Price of such Make-Whole Fundamental Change is between two
Stock Prices listed in the table above under the row titled “Stock Price,” or if the actual
Effective Date of such Make-Whole Fundamental Change is between two Effective Dates listed
in the table above in the column immediately below the title “Effective Date,” then the
Make-Whole Conversion Rate Adjustment for such Make-Whole Fundamental Change shall be
determined by the Company by straight-line interpolation between the Make-Whole Conversion
Rate Adjustment set forth for such higher and lower Stock Prices, or for such earlier and
later Effective Dates based on a 365 day year, as applicable;




     (ii) if the actual Stock Price of such Make-Whole Fundamental Change is greater than
$60.00 per share (subject to adjustment in the same manner as the Stock Price as provided in
clause (iii) below), or if the actual Stock Price of such Make-Whole Fundamental Change is
less than $3.97 per share (subject to adjustment in the same manner as the Stock Price as
provided in clause (iii) below), then the Make-Whole Conversion Rate Adjustment shall be
equal to zero and this Section 5.03 shall not require the Company to increase the Conversion
Rate with respect to such Make-Whole Fundamental Change;




     (iii) if an event occurs that requires, pursuant to this Article 5 (other than solely
pursuant to this Section 5.03), an adjustment to the Conversion Rate, then, on the date and
at the time such adjustment is so required to be made, each price set forth in the table
above under the row titled “Stock Price” shall be deemed to be adjusted so that such Stock
Price, at and after such time, shall be equal to the product of (1) such Stock Price as in
effect immediately before such adjustment to such Stock Price and (2) a fraction whose
numerator is the Conversion Rate in effect immediately before such adjustment to the
Conversion Rate and whose denominator is the Conversion Rate to be in effect, in accordance
with this Article 5, immediately after such adjustment to the Conversion Rate;



23









 






     (iv) each Make-Whole Conversion Rate Adjustment set forth in the table above shall be
adjusted in the same manner in which, at the same time and for the same events for which,
the Conversion Rate is to be adjusted pursuant to Section 5.04; and




     (v) in no event will the total number of shares of Common Stock issuable upon
conversion of the Notes exceed 251.8892 per $1,000 principal amount of Notes, subject to
adjustment in the same manner as the Conversion Rate pursuant to Section 5.04.



          (b) As soon as practicable after the Company determines the anticipated Effective Date of any
proposed Make-Whole Fundamental Change, the Company shall provide each Noteholder, the Trustee and
the Conversion Agent written notice of, and shall issue through a public medium that is customary
for such announcements and publish on the Company’s website a press release indicating, the
anticipated Effective Date of such proposed Make-Whole Fundamental Change and shall use
commercially reasonable efforts in time to give such notice thirty Business Days in advance of such
anticipated Effective Date. Each such press release notice, announcement and publication shall
also state that in connection with such Make-Whole Fundamental Change, the Company shall increase,
in accordance herewith, the Conversion Rate applicable to Notes entitled as provided herein to such
increase (along with a description of how such increase shall be calculated and the time periods
during which Notes must be surrendered in order to be entitled to such increase). No later than
five Business Days after the actual Effective Date of each Make-Whole Fundamental Change, the
Company shall provide each Noteholder, the Trustee and the Conversion Agent written notice of, and
shall issue through a public medium that is customary for such announcements and publish on the
Company’s website a press release indicating, such Effective Date and the amount by which the
Conversion Rate has been so increased.




          Nothing in this Section 5.03 shall prevent an adjustment to the Conversion Rate pursuant to
Section 5.04 in respect of a Make-Whole Fundamental Change.




          Section 5.04. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from time
to time by the Company as follows:




          (a) If the Company issues solely shares of Common Stock as a dividend or distribution on all
or substantially all of the shares of Common Stock, or if the Company effects a share split or
share combination of the Common Stock, the applicable Conversion Rate will be adjusted based on the
following formula:









       where



	 	 	 	 
	 	 
	 	 
	 	CR0  =

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

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






24









 






	 	 	 	 
	 	 

	 	the open of business on the effective date of such share split or share
combination, as the case may be;
	 	 
	 	 
	 	OS0

	=	the number of shares of Common Stock outstanding immediately prior to the
open of business on the Ex-Dividend Date for such dividend or distribution, or
immediately prior to the open of business on the effective date of such share split or
share combination, as the case may be; and
	 	 
	 	 
	 	OS

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





Such adjustment shall become effective immediately after the opening of business on the Ex-Dividend
Date for such dividend or distribution, or the effective date for such share split or share
combination. If any dividend or distribution of the type described in this Section 5.04(a) is
declared but not so paid or made, or the outstanding shares of Common Stock are not split or
combined, as the case may be, the Conversion Rate shall be immediately readjusted, effective as of
the date the Board of Directors determines not to pay such dividend or distribution, or split or
combine the outstanding shares of Common Stock, as the case may be, to the Conversion Rate that
would then be in effect if such dividend, distribution, share split or share combination had not
been declared or announced.




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









         where



	 	 	 	 
	 	 
	 	 
	 	CR0

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

	=	the applicable Conversion Rate in effect immediately after the open of
business on the Ex-Dividend Date for such distribution;
	 	 
	 	 
	 	OS0

	=	the number of shares of the Common Stock that are outstanding immediately
prior to the open of business on the Ex-Dividend Date for such distribution;
	 	 
	 	 
	 	X

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

	=	the number of shares of the Common Stock equal to the aggregate price payable
to exercise such rights, options or warrants, divided by the average of the Last
Reported Sale Prices of Common Stock over the ten consecutive Trading Day period ending
on, and including, the Trading Day immediately preceding the Ex-Dividend Date relating
to such distribution of such rights, options or warrants.






25









 





Such adjustment shall be successively made whenever any such rights, options or warrants are
distributed and shall become effective immediately after the opening of business on the Ex-Dividend
Date for such distribution. To the extent that shares of the Common Stock are not delivered after
the expiration of such rights, options or warrants, the Conversion Rate shall be readjusted to the
Conversion Rate that would then be in effect had the adjustments made upon the issuance of such
rights, options or warrants been made on the basis of delivery of only the number of shares of
Common Stock actually delivered. If such rights, options or warrants are not so issued, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if
such Ex-Dividend Date for such distribution had not been fixed.




          For purposes of this Section 5.04(b), in determining whether any rights, options or warrants
entitle the holders to subscribe for or purchase shares of the Common Stock at less than the
average of the Last Reported Sale Prices of the Common Stock for each Trading Day in the applicable
ten-consecutive-Trading Day period, there shall be taken into account any consideration received by
the Company for such rights, options or warrants and any amount payable on exercise or conversion
thereof, the value of such consideration, if other than cash, to be determined by the Board of
Directors or a committee thereof. In no event shall the Conversion Rate be decreased pursuant to
this Section 5.04(b).




          (c) If the Company shall distribute shares of its Capital Stock, evidences of its indebtedness
or other of its assets or property (other than (i) dividends or distributions (including share
splits) covered by Section 5.04(a) or Section 5.04(b), (ii) dividends or distributions paid
exclusively in cash, and (iii) Spin-Offs, to which the provisions set forth below in this Section
5.04(c)) shall apply to all or substantially all holders of its Common Stock, then, in each such
case the Conversion Rate shall be increased based on the following formula:









         where



	 	 	 	 
	 	 
	 	 
	 	CR0

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

	=	the applicable Conversion Rate in effect immediately after the open of
business on the Ex-Dividend Date for such distribution.
	 	 
	 	 
	 	SP0

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

	=	the fair market value (as determined by the Board of Directors or a committee
thereof) of the shares of Capital Stock, evidences of indebtedness, assets or property
distributed with respect to each outstanding share of the Common Stock as of the open
of business on the Ex-Dividend Date for such distribution.





Such adjustment shall become effective immediately prior to the opening of business on the
Ex-Dividend Date for such distribution; provided that if “FMV” as set forth above is equal to or
greater than “SP0” as set forth above, in lieu of the foregoing adjustment, adequate
provisions shall be made so that each Noteholder shall have the right to receive on conversion in
respect of each $1,000 principal amount of the Notes held by such holder, in addition to the number
of shares of Common Stock equal to the Conversion Rate, the amount and kind of Distributed Property
such holder would have received had such holder



26









 






owned a number of shares of Common Stock equal to the Conversion Rate immediately prior to the
Record Date for such distribution. If such distribution is not so paid or made, the Conversion
Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such
dividend or distribution had not been declared. If the Board of Directors or a committee thereof
determines “FMV” for purposes of this Section 5.04(c) by reference to the actual or when issued
trading market for any Notes, it must in doing so consider the prices in such market over the same
period used in computing the Last Reported Sale Prices of the Common Stock over the ten consecutive
Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such
distribution.




          With respect to an adjustment pursuant to this Section 5.04(c) where there has been a dividend
or other distribution on the Common Stock of shares of Capital Stock of any class or series, or
similar equity interest, of or relating to a Subsidiary or other business unit of the Company (a
“Spin-Off”), the Conversion Rate will be increased based on the following formula:









          where



	 	 	 	 
	 	 
	 	 
	 	CR0

	=	the applicable Conversion Rate in effect immediately prior to the open of
business on the Ex-Dividend Date for the Spin-Off;
	 	 
	 	 
	 	CR

	=	the applicable Conversion Rate in effect immediately after the open of
business on the Ex-Dividend Date for the Spin-Off;
	 	 
	 	 
	 	FMV

	=	the average of the Last Reported Sale Prices of the Capital Stock or similar
equity interest distributed to holders of the Common Stock applicable to one share of
the Common Stock over the first ten consecutive Trading Day period immediately
following, and including, the Ex-Dividend Date for the Spin-Off (such period, the
“Valuation Period”), and
	 	 
	 	 
	 	MP0

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





The adjustment to the Conversion Rate under the preceding paragraph of this Section 5.04(c) shall
be made immediately after the opening of business on the day after the last day of the Valuation
Period, but shall become effective as of the opening of business on the Ex-Dividend Date for the
Spin-Off. If the Ex-Dividend Date for the Spin-Off is less than ten Trading Days prior to, and
including, the end of the Cash Settlement Averaging Period in respect of any conversion, references
within this Section 5.04(c) to ten Trading Days shall be deemed replaced, for purposes of
calculating the affected daily Conversion Rates in respect of that conversion, with such lesser
number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for the Spin-Off
to, and including, the last Trading Day of such Cash Settlement Averaging Period. For purposes of
determining the applicable Conversion Rate, in respect of any conversion during the ten Trading
Days commencing on the Ex-Dividend Date of any Spin-Off, references in the portion of this Section
5.04(c) related to Spin-Offs to ten Trading Days shall be deemed replaced with such lesser number
of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, but
excluding, the Conversion Date for such conversion.




          Subject in all respect to Section 5.10, rights, options or warrants distributed by the Company
to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase
shares of the Company’s Capital Stock, including Common Stock (either initially or under certain



27









 






circumstances), which rights, options or warrants, until the occurrence of a specified event
or events (“Trigger Event”): (i) are deemed to be transferred with such shares of the Common
Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the
Common Stock, shall be deemed not to have been distributed for purposes of this Section 5.04 (and
no adjustment to the Conversion Rate under this Section 5.04 will be required) until the occurrence
of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made
under this Section 5.04(c). If any such right, option or warrant, including any such existing
rights, options or warrants distributed prior to the date of this Supplemental Indenture, are
subject to events, upon the occurrence of which such rights, options or warrants become exercisable
to purchase different Notes, evidences of indebtedness or other assets, then the date of the
occurrence of any and each such event shall be deemed to be the date of distribution and
Ex-Dividend Date with respect to new rights, options or warrants with such rights (and a
termination or expiration of the existing rights, options or warrants without exercise by any of
the holders thereof). In addition, in the event of any distribution (or deemed distribution) of
rights, options or warrants, or any Trigger Event or other event (of the type described in the
preceding sentence) with respect thereto that was counted for purposes of calculating a
distribution amount for which an adjustment to the Conversion Rate under this Section 5.04 was
made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or
repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon
such final redemption or repurchase to give effect to such distribution or Trigger Event, as the
case may be, as though it were a cash distribution, equal to the per share redemption or repurchase
price received by a holder or holders of Common Stock with respect to such rights, options or
warrants (assuming such holder had retained such rights or warrants), made to all holders of Common
Stock as of the date of such redemption or repurchase, and (2) in the case of such rights, options
or warrants that shall have expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.




          For purposes of this Section 5.04(c), Section 5.04(a), and Section 5.04(b), any dividend or
distribution to which this Section 5.04(c) is applicable that also includes shares of Common Stock,
or rights, options or warrants to subscribe for or purchase shares of Common Stock to which Section
5.04(b) applies (or both), shall be deemed instead to be (1) a dividend or distribution of the
evidences of indebtedness, assets or shares of capital stock other than such shares of Common Stock
or rights, options or warrants to which Section 5.04(c) applies (and any Conversion Rate adjustment
required by this Section 5.04(c) with respect to such dividend or distribution shall then be made)
immediately followed by (2) a dividend or distribution of such shares of Common Stock or such
rights, options or warrants (and any further Conversion Rate adjustment required by Section 5.04(a)
and Section 5.04(b) with respect to such dividend or distribution shall then be made), except (A)
the Ex-Dividend Date of such dividend or distribution shall be substituted as “the Ex-Dividend
Date,” “the Ex-Dividend Date relating to such distribution of such rights, options or warrants” and
“the Ex-Dividend Date for such distribution” within the meaning of Section 5.04(a) and Section
5.04(b) and (B) any shares of Common Stock included in such dividend or distribution shall not be
deemed “outstanding immediately prior to the Ex-Dividend Date for such dividend or distribution, or
the effective date of such share split or share combination, as the case may be” within the meaning
of Section 5.04(a) or “outstanding immediately prior to the Ex-Dividend Date for such dividend or
distribution” within the meaning of Section 5.04(b).




          In no event shall the Conversion Rate be decreased pursuant to this Section 5.04(c).




          (d) If any cash dividend or distribution is made to all or substantially all holders of its
outstanding Common Stock, the applicable Conversion Rate shall be increased based on the following
formula:




28









 













               where



	 	 	 
	 
	 	 
	CR0  =

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

	 	the applicable Conversion Rate in effect immediately after the open of
business on the Ex-Dividend Date for such dividend or distribution;
	 
	 	 
	SP0  =

	 	the average of the Last Reported Sale Prices of the Common Stock over the
ten consecutive Trading Day period ending on, and including, the Trading Day
immediately preceding the Ex-Dividend Date for such dividend or distribution; and
	 
	 	 
	C     =

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





Such adjustment shall become effective immediately after the opening of business on the Ex-Dividend
Date for such dividend or distribution; provided that if “C” as set forth above is equal to or
greater than “SP0” as set forth above, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Noteholder shall have the right to receive on the date on
which the relevant cash dividend or distribution is distributed to holders of Common Stock, for
each $1,000 principal amount of Notes, the amount of cash such holder would have received had such
holder owned a number of shares equal to the Conversion Rate on the Record Date for such
distribution. If such dividend or distribution is not so paid or made, the Conversion Rate shall
again be adjusted to be the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.




          For the avoidance of doubt, for purposes of this Section 5.04(d), in the event of any
reclassification of the Common Stock, as a result of which the Notes become convertible into more
than one class of Common Stock, if an adjustment to the Conversion Rate is required pursuant to
this Section 5.04(d), references in this Section to one share of Common Stock or Last Reported Sale
Prices of one share of Common Stock shall be deemed to refer to a unit or to the price of a unit
consisting of the number of shares of each class of Common Stock into which the Notes are then
convertible equal to the numbers of shares of such class issued in respect of one share of Common
Stock in such reclassification. The above provisions of this paragraph shall similarly apply to
successive reclassifications.




          In no event shall the Conversion Rate be decreased pursuant to this Section 5.04(d).




          (e) If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or
exchange offer for the Common Stock and if the cash and value of any other consideration included
in the payment per share of the Common Stock exceeds the average of the Last Reported Sale Prices
of the Common Stock over the ten consecutive Trading-Day period commencing on, and including, the
Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to
such tender or exchange offer (the “Expiration Date”), the Conversion Rate shall be increased based
on the following formula:










29









 








            where




	 	 	 
	 
	 	 
	CR0  =

	 	the applicable Conversion Rate in effect immediately prior to the open of
business on the Trading Day next succeeding the Expiration Date;
	 
	 	 
	CR   =

	 	the applicable Conversion Rate in effect immediately after the open of
business on the Trading Day next succeeding the Expiration Date;
	 
	 	 
	AC   =

	 	the aggregate value of all cash and any other consideration (as determined by
the Board of Directors) paid or payable for shares of Common Stock purchased in such
tender or exchange offer;
	 
	 	 
	OS0  =

	 	the number of shares of Common Stock outstanding immediately prior to the
time (the “Expiration Time”) such tender or exchange offer expires (prior to giving
effect to such tender offer or exchange offer);
	 
	 	 
	OS   =

	 	the number of shares of Common Stock outstanding immediately after the
Expiration Time (after giving effect to such tender offer or exchange offer); and
	 
	 	 
	SP   =

	 	the average of the Last Reported Sale Prices of Common Stock over the ten
consecutive Trading Day period commencing on, and including, the Trading Day next
succeeding the Expiration Date.





Such adjustment under this Section 5.04(e) shall become effective at the opening of business on the
Trading Day next succeeding the Expiration Date. If the Trading Day next succeeding the Expiration
Date is less than ten Trading Days prior to, and including, the end of the Cash Settlement
Averaging Period in respect of any conversion, references within this Section 5.04(e) to ten
Trading Days shall be deemed replaced, for purposes of calculating the affected daily Conversion
Rates in respect of that conversion, with such lesser number of Trading Days as have elapsed from,
and including, the Trading Day next succeeding the Expiration Date to, and including, the last
Trading Day of such Cash Settlement Averaging Period. For purposes of determining the applicable
Conversion Rate, in respect of any conversion during the ten Trading Days commencing on the Trading
Day next succeeding the Expiration Date, references within this Section 5.04(e) to ten Trading Days
shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and
including, the Trading Day next succeeding the Expiration Date to, but excluding, the Conversion
Date for such conversion. 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 or all or any portion of such purchases or all such purchases are rescinded, the Conversion
Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender
or exchange offer had not been made or had been made only in respect of the purchases that had been
effected. In no event shall the Conversion Rate be decreased pursuant to this Section 5.04(e).




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




          (g) In addition to those required by clauses (a), (b), (c), (d) and (e) of this Section 5.04,
and to the extent permitted by applicable law and subject to the applicable rules of the New York



30









 






Stock Exchange, the Company from time to time may increase the Conversion Rate by any amount
for a period of at least twenty Business Days if the Board of Directors determines that such
increase would be in the Company’s best interest. In addition, the Company may also (but is not
required to) increase the Conversion Rate to avoid or diminish any income tax to holders of Common
Stock or rights to purchase Common Stock in connection with any dividend or distribution of shares
(or rights to acquire shares) or similar event. Whenever the Conversion Rate is increased pursuant
to the preceding sentence, the Company shall mail to the holder of each Note at its last address
appearing on the Security Register provided for in Section 2.05 of the Base Indenture a notice of
the increase at least fifteen days prior to the date the increased Conversion Rate takes effect,
and such notice shall state the increased Conversion Rate and the period during which it will be in
effect.




          (h) The Company shall not take any action that would result in adjustment of the Conversion
Rate, pursuant to this Article 5, in such a manner as to result in the reduction of the Conversion
Price to less than the par value per share of Common Stock.




          (i) The applicable Conversion Rate will not be adjusted:





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




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




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




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




     (v) for accrued and unpaid interest, including Additional Interest, if any; or




     (vi) for any transactions described in this Section 5.04 if Noteholders participate (as
a result of holding the Notes, and at the same time as holders of Common Stock participate)
in such transactions as if such Noteholders held a number shares of Common Stock equal to
the Conversion Rate at the time such adjustment would be required, multiplied by the
principal amount (expressed in thousands) of Notes held by such Noteholder, without having
to convert their Notes.



          (j) All calculations and other determinations under this Article 5 shall be made by the
Company and shall be made to the nearest one-ten thousandth (1/10,000) of a share.




          (k) The Company shall not be required to make an adjustment in the Conversion Rate unless the
adjustment would require a change of at least 1% in the Conversion Rate. However, the Company
shall carry forward any adjustments that are less than 1% of the Conversion Rate and make such
carried forward adjustment, regardless of whether the aggregate adjustment is less than 1%, (i)
upon any conversion of Notes, and (ii) on each of the twenty-two Scheduled Trading Days immediately
preceding the Maturity Date.




31









 








          (l) Except as set forth in this Article 5, the Company shall not adjust the Conversion Rate.




          (m) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and any Conversion Agent other than the Trustee an Officers’ Certificate
setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have
received such Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any
adjustment of the Conversion Rate and may assume without inquiry that the last Conversion Rate of
which it has knowledge is still in effect. Promptly after delivery of such certificate, the
Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted
Conversion Rate and the date on which each adjustment becomes effective and shall notify the
Trustee and either (i) issue a press release containing the relevant information (and make such
press release available on the Company’s website) or (ii) provide notice to the Noteholders in any
manner permitted in Section 5.09. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.




          (n) If, in respect of any Trading Day within the Cash Settlement Averaging Period for a
converted Note:





     (i) shares of Common Stock are deliverable with respect to the Daily Settlement Amount
for such Trading Day in accordance with this Article 5;




     (ii) any event that requires an adjustment to the Conversion Rate under any of clauses
(a), (b), (c), (d) and (e) of this Section 5.04 has not resulted in an adjustment to the
Conversion Rate as of such Trading Day; and




     (iii) the shares of Common Stock the holder of such Note shall receive in respect of
such Trading Day are not entitled to participate in the distribution or transaction giving
rise to such adjustment event because, pursuant to the terms of Section 5.02(i), such shares
were not held by such holder on the record date corresponding to such distribution or
transaction,


then the Company will adjust the number of shares of Common Stock deliverable with respect to the
Daily Settlement Amount for such Trading Day to reflect the relevant distribution or transaction.




     (o) If:




     (i) the Company elects to satisfy the Conversion Obligation solely in shares of Common
Stock;




     (ii) any event that requires an adjustment to the Conversion Rate under any of clauses
(a), (b), (c), (d) and (e) of this Section 5.04 has not resulted in an adjustment to the
Conversion Rate as of the Conversion Date; and




     (iii) the shares of Common Stock the holder of such Note shall receive on settlement
are not entitled to participate in the distribution or transaction giving rise to such
adjustment event because, pursuant to the terms of Section 5.02(i), such shares were not
held by such holder on the record date corresponding to such distribution or transaction,


then the Company will adjust the number of shares of Common Stock deliverable to reflect the
relevant distribution or transaction.




32









 








          (p) For purposes of this Section 5.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
The Company will not pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company.




          (q) If (i) a Noteholder is deemed to have received a distribution or dividend subject to U.S.
federal income tax as a result of an adjustment or the nonoccurrence of an adjustment of the
Conversion Rate, as a result of the distribution of cash dividends to holders of Common Stock or
otherwise, and (ii) the Company pays withholding taxes or applies backup withholding on behalf of a
Noteholder in respect of such deemed distribution or dividend, the Company may, at its option, set
off such withholding tax or backup withholding payments against subsequent payments of cash and
Common Stock on the Notes (or, in certain circumstances, against payments on Common Stock) of such
Noteholder.




          Section 5.05. Shares to Be Fully Paid. The Company shall provide, free from preemptive
rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of
Common Stock to provide for conversion of the Notes from time to time as such Notes are presented
for conversion after application of Section 5.02(a).




          Section 5.06. Effect of Reclassification, Consolidation, Merger or Sale. Upon the occurrence
of (i) any reclassification or change of the outstanding shares of Common Stock (other than a
change in par value, or from par value to no par value, or from no par value to par value, or as a
result of a split, subdivision or combination covered by Section 5.04(a)), (ii) any consolidation,
merger, combination or binding share exchange involving the Company, or (iii) any sale or
conveyance of all or substantially all of the property and assets of the Company to any other
Person, in each case as a result of which holders of Common Stock shall be entitled to receive
cash, securities or other property or assets with respect to or in exchange for such Common Stock
(any such event a “Merger Event”), then:




          (a) the Company or the successor or purchasing Person, as the case may be, shall execute with
the Trustee a supplemental indenture permitted under Section 4.01(g) as set forth in this
Supplemental Indenture. Such supplemental indenture shall provide for adjustments that shall be as
nearly equivalent as may be practicable to the adjustments provided for in this Article 5. If, in
the case of any Merger Event, the Reference Property includes shares of stock or other securities
and assets of a corporation other than the successor or purchasing corporation, as the case may be,
in such reclassification, change, consolidation, merger, combination, binding 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 Notes
as the Board of Directors (or a duly constituted committee thereof) shall reasonably consider
necessary by reason of the foregoing, including to the extent required by the Board of Directors
(or such committee) and practicable the provisions providing for the repurchase rights set forth in
Article 6 herein.




          In the event the Company shall execute a supplemental indenture pursuant to this Section 5.06,
the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the
reasons therefor, the kind or amount of cash, securities or property or asset that will comprise
the Reference Property after any such Merger Event, any adjustment to be made with respect thereto
and that all conditions precedent have been complied with, and shall promptly provide notice
thereof to all Noteholders. The Company shall cause notice of the execution of such supplemental
indenture to be provided to each Noteholder, at its address appearing on the Security Register
provided for in this Indenture, within twenty days after execution thereof. Failure to deliver
such notice shall not affect the legality or validity of such supplemental indenture.




33









 








          (b) Notwithstanding the provisions of Section 5.02(a), and subject to the provisions of
Section 5.01 and Section 5.03, at and after the effective time of such Merger Event, (i) the right
to convert each $1,000 principal amount of Notes into cash, shares of Common Stock or a combination
of cash and shares of Common Stock at the Company’s election as set forth in Section 5.02 will be
changed to a right to convert each $1,000 principal amount of such Note into cash, the kind and
amount of shares of stock, securities or other property or assets (including cash or any
combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion
Rate immediately prior to such transaction would have owned or been entitled to receive (the
“Reference Property”) or a combination of cash and Reference Property at the Company’s election,
(ii) the related Conversion Obligation shall be settled as set forth under clause (c) below, and
(iii) references herein to “Common Stock” shall be to such Reference Property to the extent the
context of such references require.




          (c) With respect to each $1,000 principal amount of Notes surrendered for conversion after the
effective date of any such Merger Event, the Company’s Conversion Obligation shall be settled in
cash or units of Reference Property, at the Company’s election, in accordance with Section 5.02(a)
as follows:





     (i) (A) if the Company elects to satisfy its Conversion Obligation in respect of such
conversion by delivering solely Reference Property, the Company shall deliver to the
converting Noteholder a number of units of Reference Property (each such unit comprised of
the kind and amount of shares of stock, securities or other property or assets (including
cash or any combination thereof) that a holder of one share of Common Stock immediately
prior to such Merger Event would have owned or been entitled to receive based on the
Weighted Average Consideration) equal to (1) the aggregate principal amount of Notes to be
converted, divided by $1,000, multiplied by (2) the then-applicable Conversion Rate; (B) if
the Company elects to satisfy its Conversion Obligation in respect of such conversion by
paying solely cash, the Company shall pay to the converting Noteholder cash in an amount,
per $1,000 principal amount of Notes equal to the sum of the Daily Conversion Values for
each of the twenty consecutive Trading Days during the related Cash Settlement Averaging
Period, such Daily Conversion Values determined as if the reference to “the Daily VWAP of
the Common Stock” in definition thereof were instead a reference to “the Daily VWAP of a
unit of Reference Property” comprised of the kind and amount of shares of stock, securities
or other property or assets (including cash or any combination thereof) that a holder of one
share of Common Stock immediately prior to such Merger Event would have owned or been
entitled to receive based on the Weighted Average Consideration; and (C) if the Company
elects to satisfy its Conversion Obligation through delivery of a combination of cash and
Reference Property, the Company shall deliver in respect of each $1,000 principal amount of
Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts
for each of the twenty consecutive Trading Days during the Cash Settlement Averaging Period
for such Note, such Daily Settlement Amounts determined as if the reference to “the Daily
VWAP of the Common Stock” in definition of Daily Conversion Value and Daily Share Amount
were instead a reference to “the Daily VWAP of a unit of Reference Property” comprised of
the kind and amount of shares of stock, securities or other property or assets (including
cash or any combination thereof) that a holder of one share of Common Stock immediately
prior to such Merger Event would have owned or been entitled to receive based on the
Weighted Average Consideration.




     (ii) The Company will deliver the cash in lieu of fractional units of Reference
Property as set forth pursuant to Section 5.02(j) (provided that the amount of such cash
shall be determined as if references in such Section to “the Daily VWAP of the Common Stock”
were instead a reference to “the Daily VWAP of a unit of Reference Property” composed of the
kind and amount of shares of stock, securities or other property or assets (including cash
or any



34









 






combination thereof) that a holder of one share of Common Stock immediately prior to
such Merger Event would have owned or been entitled to receive based on the Weighted Average
Consideration).




     (iii) The Daily Settlement Amounts (if applicable) and Daily Conversion Values (if
applicable) shall be determined by the Company promptly following the last day of the Cash
Settlement Averaging Period.




     (iv) For purposes of this Section 5.06, the “Weighted Average Consideration” means the
weighted average of the types and amounts of consideration received by the holders of the
Common Stock entitled to receive cash, securities or other property or assets with respect
to or in exchange for such Common Stock in any Merger Event (in the event holders of the
Common Stock are entitled to elect the type of consideration such holders receive,
considering only holders who affirmatively make such an election).



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




          (e) In the event that the Notes become convertible into Reference Property pursuant to this
Section 5.06, the Company shall notify the Trustee and issue a press release containing the
relevant information, which will include the Weighted Average Consideration, and make such press
release available on the Company’s website.




          Section 5.07. Certain Covenants.




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




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




          Section 5.08. Responsibility of Trustee. The Company hereby appoints the Trustee as the
initial Conversion Agent, which appointment the Trustee accepts and agrees to perform in accordance
with the terms of this Indenture. The Trustee, in its capacity as initial Conversion Agent, and
any other Conversion Agent shall not at any time be under any duty or responsibility to any
Noteholder to determine the Conversion Rate (or any adjustment thereto) or whether any facts exist
that may require any adjustment (including any increase) of the Conversion Rate, or with respect to
the nature or extent or calculation of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in making the same.
The Trustee and any other Conversion Agent (the “Conversion Agent”) shall not be accountable with
respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any
securities, property or cash that may at any time be issued or delivered upon the conversion of any
Note; and the Trustee and any other Conversion Agent make no representations with respect thereto.
Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the Company to
issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or
property or cash upon the surrender of any Note for the purpose of conversion or to comply with any
of the duties, responsibilities or covenants of the Company contained in this Article. Without
limiting the generality of the foregoing, neither the Trustee nor any Conversion Agent shall be
under any responsibility to determine the correctness of any provisions





35












 




contained in any supplemental indenture entered into pursuant to Section 5.06 relating either
to the kind or amount of shares of stock or securities or property (including cash) receivable by
Noteholders upon the conversion of their Notes after any event referred to in such Section 5.06 or
to any adjustment to be made with respect thereto, but, subject to the provisions of Section 7.02
of the Base Indenture, may accept (without any independent investigation) as conclusive evidence of
the correctness of any such provisions, and shall be protected in relying upon, the Officers’
Certificate (which the Company shall be obligated to file with the Trustee prior to the execution
of any such supplemental indenture) with respect thereto. The rights, privileges, protections,
immunities and benefits given to the Trustee, including without limitation its right to be
compensated, reimbursed, and indemnified, are extended to, and shall be enforceable by, the Trustee
in each of its capacities hereunder, including its capacity as Conversion Agent.




          Section 5.09. Notice to Noteholders Prior to Certain Actions. In case:




          (a) the Company shall declare a dividend (or any other distribution) on its Common Stock that
would require an adjustment in the Conversion Rate pursuant to Section 5.04; or




          (b) the Company shall authorize the granting to all of the holders of its Common Stock of
rights, options or warrants to subscribe for or purchase any share of any class or any other
rights, options or warrants; 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 or merger to which the Company
is a party and for which approval of any stockholders of the Company is required, or of the sale or
transfer of all or substantially all of the 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 to be provided to each Noteholder at its
address appearing on the Security Register provided for in Section 2.05 of the Base Indenture, as
promptly as possible, a notice stating (i) the date on which a record is to be taken for the
purpose of such dividend, distribution or rights, options or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled to such dividend,
distribution or rights are to be determined, or (ii) the date on which such reclassification,
consolidation, merger, 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, 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, transfer,
dissolution, liquidation or winding-up.




          Section 5.10. Stockholder Rights Plans. To the extent that the Company has a stockholder
rights plan or other “poison pill” in effect upon conversion of the Notes, each share of Common
Stock, if any, issued upon such conversion shall be entitled to receive the appropriate number of
rights, if any, and the certificates representing the Common Stock issued upon such conversion
shall bear such legends, if any, in each case as may be provided by the terms of any such
stockholder rights plan or poison pill, as the same may be amended from time to time. If, however,
prior to the time of conversion, the rights have separated from the shares of Common Stock in
accordance with the provisions of the applicable stockholder rights agreement so that the holders
of the Notes would not be entitled to receive any rights in respect of Common Stock, if any,
issuable upon conversion of the Notes, the Conversion




36









 







Rate will be adjusted at the time of separation as if the Company has distributed to all
holders of Common Stock, shares of Capital Stock of the Company, evidence of indebtedness or assets
as provided in Section 5.04(c), subject to readjustment in the event of the expiration, termination
or redemption of such rights.




          Section 5.11. Exchange in Lieu of Conversion. When a Noteholder surrenders its Notes for
conversion, the Company may, at its election, direct the Conversion Agent to surrender, on or prior
to the second Business Day following the relevant Conversion Date, such Notes to a financial
institution designated by the Company (the “Designated Institution”) for exchange in lieu of
conversion. In order to accept any Notes surrendered for conversion for exchange in lieu of
conversion, the Designated Institution must agree to timely deliver to the Conversion Agent for
delivery to the Noteholder, in exchange for such Notes, the shares of Common stock and/or cash that
would otherwise be due upon conversion pursuant to Section 5.02 and in respect of which the Company
has notified converting Noteholders. If the Company makes the election provided for in this
Section 5.11, the Company shall, by the close of business on the second Business Day following the
relevant Conversion Date as part of its Settlement Notice, notify the Noteholder surrendering its
Notes for conversion that it has made such election. In addition, the Company shall concurrently
notify the Designated Institution of the Settlement Method (and, if applicable, the Specified
Dollar Amount) that Company has elected with respect to such conversion and the relevant deadline
for delivery of the consideration due upon conversion. Any Notes exchanged by the Designated
Institution will remain Outstanding.




          If the Designated Institution agrees to accept any Notes for exchange but does not timely
deliver the related consideration due upon conversion to the Conversion Agent, or if the Designated
Institution does not accept such Notes for exchange, the Company shall, as promptly as practical
thereafter, convert such Notes into cash and/or shares of Common Stock, as applicable in accordance
with the provisions of Section 5.02.




          For the avoidance of doubt, in no event will the Company’s designation of a Designated
Institution pursuant to this Section 5.11 require the Designated Institution to accept any Notes
for exchange. The Company will not pay any consideration to, or otherwise enter into any agreement
with, the Designated Institution for or with respect to such designation.




ARTICLE 6

REPURCHASE OF NOTES AT OPTION OF NOTEHOLDERS




          Section 6.01. Repurchase at Option of Noteholders upon a Fundamental Change. (a) If there
shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall
have the right, at such holder’s option, to require the Company to repurchase for cash all of such
holder’s Notes, or any portion thereof that is an integral multiple of $1,000 principal amount, on
the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than
twenty Business Days and not more than thirty-five Business Days after the date of the Fundamental
Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal
amount thereof, together with accrued and unpaid interest (including Additional Interest, if any)
thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change
Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date
and on or prior to the related Interest Payment Date, in which case interest (including Additional
Interest, if any) accrued to the Interest Payment Date will be paid to holders of the Notes as of
the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the
holder surrendering the Note for repurchase pursuant to this Article 6 shall be equal to the
principal amount of Notes subject to repurchase and will not include any accrued and unpaid
interest (including Additional Interest, if any). Repurchases of Notes under this Section 6.01
shall be made, at the option of the holder thereof, upon:




37









 









     (i) delivery to the Paying Agent by a holder of a duly completed notice (the
“Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as
Exhibit C thereto on or prior to the Scheduled Trading Day immediately preceding the
Fundamental Change Repurchase Date; and




     (ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after
delivery of the Fundamental Change Repurchase Notice (together with all necessary
endorsements) at the office of the Paying Agent, such delivery being a condition to receipt
by the holder of the Fundamental Change Repurchase Price therefor; provided that such
Fundamental Change Repurchase Price shall be so paid pursuant to this Section 6.01 only if
the Note so delivered to the Paying Agent shall conform in all respects to the description
thereof in the related Fundamental Change Repurchase Notice.




     The Fundamental Change Repurchase Notice shall state:




     (A) if certificated, the certificate numbers of Notes to be delivered for
repurchase;




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




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


provided, however, that if the Notes are not in certificated form, the Fundamental Change
Repurchase Notice must comply with appropriate Depositary procedures.




          Any repurchase by the Company contemplated pursuant to the provisions of this Section 6.01
shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section
6.03(a).




          Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this Section 6.01 shall have the right to
withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the
close of business on the Scheduled Trading Day immediately preceding the Fundamental Change
Repurchase Date in accordance with Section 6.02.




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




          (b) On or before the twentieth calendar day after the occurrence of the effective date of a
Fundamental Change, the Company shall provide or cause to be provided to all holders of record of
the Notes and the Trustee a notice (the “Fundamental Change Company Notice”) of, and issue a press
release (and make such press release available on the Company’s website) in respect of, the
occurrence of the effective date of the Fundamental Change and of the repurchase right at the
option of the holders arising as a result thereof. The Company shall also deliver a copy of the
Fundamental Change Company Notice to the Trustee, the Paying Agent and the Conversion Agent within
five Business Days after the effective date of the Fundamental Change. Each Fundamental Change
Company Notice shall specify:





     (i) the events causing the Fundamental Change;



38









 






     (ii) the effective date of the Fundamental Change, and whether the Fundamental Change
is a Make-Whole Fundamental Change, in which case the Effective Date of the Make-Whole
Fundamental Change;




     (iii) the last date on which a holder may exercise the repurchase right pursuant to
this Article 6;




     (iv) the Fundamental Change Repurchase Price;




     (v) the Fundamental Change Repurchase Date;




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




     (vii) if applicable, the applicable Conversion Rate, and any adjustments to the
applicable Conversion Rate resulting from the Fundamental Change;




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




     (ix) that the holder must exercise the repurchase right on or prior to the close of
business on the Scheduled Trading Day immediately preceding the Fundamental Change
Repurchase Date (the “Fundamental Change Expiration Time”);




     (x) that the holder shall have the right to withdraw any Notes surrendered prior to the
Fundamental Change Expiration Time; and




     (xi) the procedures that holders must follow to require the Company to repurchase their
Notes.



          No failure of the Company to give the foregoing notices and no defect therein shall limit the
Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the
Notes pursuant to this Section 6.01.




          (c) Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of
the holders upon a Fundamental Change if the principal amount of the Notes has been accelerated,
and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date
(except in the case of an acceleration resulting from a Default by the Company in the payment of
the Fundamental Change Repurchase Price with respect to such Notes).




          (d) In connection with any purchase offer, the Company will:





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




     (ii) file a Schedule TO or any successor or similar schedule, if required under the
Exchange Act, and




     (iii) otherwise comply with all applicable federal and state securities laws in
connection with any offer by the Company to purchase the Notes.



39









 





          Notwithstanding anything to the contrary provided in this Indenture, compliance by the Company
with Rule 13e-4, Rule 14e-1 and any other tender offer rule under the Exchange Act in accordance
with clause (i) above, to the extent inconsistent with any other provision of this Indenture, will
not, standing alone, constitute an Event of Default solely as a result of compliance by the Company
with such rules.




          Notwithstanding the foregoing the Company shall not be required to repurchase the Notes in
accordance with this Section 6.01 if a third party makes an offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Section 6.01 and purchases all
Notes validly tendered and not withdrawn under such purchase offer.




          Section 6.02. Withdrawal of Fundamental Change Repurchase Notice.




          (a) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the Corporate Trust Office (as defined in Section 1.01 of the Base
Indenture) of the Paying Agent in accordance with this Section 6.02 at any time prior to the close
of business on the Scheduled Trading Day immediately preceding the Fundamental Change Repurchase
Date, specifying:





     (i) the certificate number, if any, of the Note in respect of which such notice of
withdrawal is being submitted, or the appropriate Depositary information if the Note in
respect of which such notice of withdrawal is being submitted is represented by a Global
Note,




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




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


provided, however, that if the Notes are not in certificated form, Noteholders must comply with
appropriate Depositary procedures.




          Section 6.03. Deposit of Fundamental Change Repurchase Price.




          (a) The Company will deposit with the Trustee (or other Paying Agent appointed by the Company,
or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) on or
prior to 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date an amount of cash
sufficient to repurchase all of the Notes to be repurchased at the appropriate Fundamental Change
Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent
appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn prior to
the Fundamental Change Expiration Time) will be made on the later of (i) the Fundamental Change
Repurchase Date with respect to such Note (provided the holder has satisfied the conditions in
Section 6.01) and (ii) the time of book-entry transfer or the delivery of such Note to the Trustee
(or other Paying Agent appointed by the Company) by the holder thereof in the manner required by
Section 6.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto
as they shall appear in the Security Register, provided, however, that payments to the Depositary
shall be made by wire transfer of immediately available funds to the account of the Depositary or
its nominee. The Trustee shall, promptly after such payment and upon written demand by the
Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.




40









 








          (b) If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the
Trustee (or other Paying Agent appointed by the Company) holds money sufficient to make payment on
all the Notes or portions thereof that are to be repurchased as a result of the corresponding
Fundamental Change, then (i) such Notes will cease to be Outstanding, (ii) interest, including
Additional Interest, if any, will cease to accrue on such Notes, and (iii) all other rights of the
holders of such Notes will terminate (other than the right to receive the Fundamental Change
Repurchase Price, and previously accrued but unpaid interest, including Additional Interest, if
any, upon delivery of the Notes), whether or not book-entry transfer of the Notes has been made or
the Notes have been delivered to the Trustee or Paying Agent.




          (c) Upon surrender of a Note that is to be repurchased in part pursuant to Section 6.01, the
Company shall execute and the Trustee shall authenticate and deliver to the holder a new Note in an
authorized denomination equal in principal amount to the unrepurchased portion of the Note
surrendered.




ARTICLE 7

MISCELLANEOUS




          Section 7.01. Ratification of Indenture.




          The Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and
confirmed, and this Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided with the following revisions in regard to the Notes only:




          (a) Article 3 (Redemption of Securities and Sinking Fund Provisions) of the Base Indenture
shall not apply to the Notes.




          (b) Section 5.03 of the Base Indenture is hereby replaced, in regard to the Notes only, with
the following text: The Company covenants and agrees to furnish to the Trustee any documents or
reports that it is required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act, within 15 days after the same are required to be filed with the Commission (giving
effect to any grace period provided by Rule 12b-25 under the Exchange Act). Documents filed with
the Commission via its Electronic Data-Gathering, Analysis, and Retrieval system shall be deemed
furnished to the Trustee as of the time they are filed via such system.




          (c) Article 6 of the Base Indenture is hereby replaced in regard to the Notes only, with the
provisions of Article 3 of this Supplemental Indenture.




          (d) Section 7.06(b) of the Base Indenture shall not apply to the Notes.




          (e) Article 9 of the Base Indenture is hereby replaced in regard to the Notes only, with the
provisions of Article 4 of this Supplemental Indenture.




          (f) Section 10.01 of the Base Indenture is hereby replaced, in regard to the Notes, with the
following text:





The Company shall not consolidate with or merge with or into, or convey, transfer or lease
all or substantially all of its properties and assets to, another Person unless:




     (1) if the Company is not the resulting, surviving or transferee Person, the resulting,
surviving or transferee Person is a corporation organized and existing under the laws of the



41









 







United States of America, any state thereof or the District of Columbia, and such
Person expressly assumes by supplemental indenture all of the Company’s obligations under
the Notes and the Indenture; and




     (2) immediately after giving effect to such transaction, no Default has occurred and is
continuing under the Indenture.



          (g) Sections 11.01 and 11.02 of the Base Indenture are hereby replaced, in regard to the Notes
only, with the following text (provided that capitalized terms in the following text shall have the
meaning given them in the Supplemental Indenture, notwithstanding their deemed use in the Base
Indenture):





If at any time all Notes theretofore authenticated and delivered (other than (x) Notes which
have been destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.07 and (y) Notes for whose payment money has theretofore been deposited in trust
with the Trustee or any Paying Agent or segregated and held in trust by the Company and
thereafter repaid to the Company as provided in Section 11.05) have been delivered to the
Trustee for cancellation; or (B) the Company has deposited with the Trustee or delivered to
Holders of the Notes, as applicable, after the Notes have become due and payable, whether at
the Maturity Date, any Fundamental Change Repurchase Date, upon conversion or otherwise,
cash or cash and shares of Common Stock, if any (solely to satisfy the Company’s Conversion
Obligation, if applicable), sufficient to pay all of the Outstanding Notes and all other
sums due payable under this Indenture by the Company, then this Indenture shall thereupon
cease to be of further effect with respect to the Notes except for the except for the
provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until
the date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05,
that shall survive to such date and thereafter, and the Trustee, on demand of the Company
and at the cost and expense of the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to the Notes.



          (h) For the avoidance of doubt, Article 14 and Article 15 of the Base Indenture shall not
apply to the Notes.




          Section 7.02. Trustee Not Responsible for Recitals.




          The recitals herein contained are made by the Company and not by the Trustee, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee makes no representation as to
the validity or sufficiency of this Supplemental Indenture. All of the provisions contained in the
Indenture in respect of the rights, privileges, immunities, powers, and duties of the Trustee shall
be applicable in respect of the Supplemental Indenture as fully and with like force and effect as
though fully set forth in full herein.




          Section 7.03. Waiver of Stay, Extension or Usury Laws.




          The Company covenants (to the fullest extent permitted by applicable law) that it will not at
any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury law or other law that would prohibit or forgive the Company
from paying all or any portion of the principal of or interest (including Additional Interest, if
any) on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture. The Company hereby
expressly waives (to the fullest extent permitted by applicable law) all benefit or advantage of
any such law, and covenants that it will not




42









 







hinder, delay or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had been enacted.




          Section 7.04. Governing Law.




          This Supplemental Indenture and the Notes shall be governed by and construed in accordance
with the laws of the State of New York.




          Section 7.05. Separability.




          In case any provision contained in this Supplemental Indenture or in the Notes shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Supplemental Indenture or of the
Notes, but this Supplemental Indenture and the Notes shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.




          Section 7.06. Counterparts.




          This Supplemental 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 7.07. Notices to Noteholders.




          Except as otherwise described herein, notices to Noteholders shall be given to the addresses
as they appear in the Security Register. Notices shall be deemed to have been given on the date of
mailing or electronic delivery. Any notice required to be given by the Company may be given by the
Trustee on the Company’s behalf.




43









 








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




	 	 	 	 	 
	 	

US AIRWAYS GROUP, INC.

 	 
	 	By:  	/s/ Thomas T. Weir	 
	 	 	Name:  	Thomas T. Weir	 
	 	 	Title:  	Vice President and Treasurer	 
	 
	 	THE BANK OF NEW YORK MELLON TRUST COMPANY,

    N.A., as Trustee

 	 
	 	By:  	/s/ Karen Z. Kelly	 
	 	 	Name:  	Karen Z. Kelly	 
	 	 	Title:  	Vice President	 
	 




44












 





EXHIBIT A




[FORM OF FACE OF SECURITY]



[EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.11 OF THE INDENTURE (AS DEFINED HEREIN), THIS SECURITY
MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO ANOTHER NOMINEE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), OR TO A SUCCESSOR DEPOSITARY OR TO A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]1



THE SECURITIES REPRESENTED BY THIS CERTIFICATE (AND THE SECURITIES THAT MAY BE ISSUED UPON
CONVERSION THEREOF) ARE SUBJECT TO VOTING RESTRICTIONS WITH RESPECT TO SECURITIES HELD BY PERSONS
OR ENTITIES THAT FAIL TO QUALIFY AS “CITIZENS OF THE UNITED STATES” AS SUCH TERM IS DEFINED BY
RELEVANT LEGISLATION. SUCH VOTING RESTRICTIONS ARE CONTAINED IN THE AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF US AIRWAYS GROUP, INC., AS THE SAME MAY BE AMENDED OR RESTATED FROM
TIME TO TIME. A COMPLETE AND CORRECT COPY OF SUCH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
SHALL BE FURNISHED FREE OF CHARGE TO THE HOLDER OF SUCH SECURITIES UPON WRITTEN REQUEST TO THE
SECRETARY OF US AIRWAYS GROUP, INC.






 




			
	1	 	Use bracketed language for a Global Note.




A-1









 










US AIRWAYS GROUP, INC.




7.25% Convertible Senior Note due 2014




			
	 	 	 
	No. [                    ]
	 	$[  ]
	 	 	 
	CUSIP No. [     ]	 	 






          US Airways Group, Inc., a corporation duly organized and validly existing under the laws of
the State of Delaware (herein called the “Company,” which term includes any successor corporation
or other entity under the Indenture referred to on the reverse hereof), for value received hereby
promises to pay to [CEDE & CO., or its registered assigns,]2 the principal sum of [ ]
Dollars, [as revised by the Schedule of Increases and Decreases in Global Note attached
hereto,]3 on May 15, 2014, interest thereon as set forth below and Additional Interest
in the manner, at the rates and to the Persons set forth in Section 3.07 of the Indenture.




          The Company promises to pay interest on the principal amount of this Note at the rate of 7.25%
per annum (subject to increase pursuant to Section 3.07 of the Indenture) from May 13, 2009 until
May 15, 2014. The Company will pay interest semi-annually on November 15 and May 15 of each year,
commencing on November 15, 2009, to holders of record at the close of business on the preceding
November 1 and May 1 (whether or not such day is a Business Day), respectively. Interest on the
Note will accrue from the most recent date to which interest has been paid, or, if no interest has
been paid on the Note, from May 13, 2009.




          Payment of the principal of and accrued and unpaid interest and Additional Interest, if any,
on this Note shall be made at the office or agency of the Company maintained for that purpose in
the Borough of Manhattan, The City of New York, in such lawful money of the United States of
America as at the time of payment shall be legal tender for the payment of public and private
debts; provided, however, that any payment to the Depositary or its nominee shall be paid by wire
transfer in immediately available funds in accordance with the wire transfer instruction supplied
by the Depositary or its nominee from time to time to the Trustee and Paying Agent (if different
from Trustee).




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




          This Note 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 and governed by the laws of said State
(without regard to the conflicts of laws provisions thereof).






 




			
	2	 	Use bracketed language for a Global Note.
	 
	3	 	Use bracketed language for a Global Note.




A-2









 










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




[Remainder of page intentionally left blank]




A-3









 








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




	 	 	 	 	 
	 	US AIRWAYS GROUP, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:




TRUSTEE’S CERTIFICATE OF AUTHENTICATION




THE BANK OF NEW YORK MELLON TRUST COMPANY,

NATIONAL ASSOCIATION

as Trustee, certifies that this is one of the Notes described

in the within-named Indenture




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Officer
	 	 






A-4









 






[FORM OF REVERSE OF SECURITY]




US AIRWAYS GROUP, INC.

7.25% Convertible Senior Note due 2014




          This Note is one of a duly authorized issue of Notes of the Company, designated as its 7.25%
Convertible Senior Notes due 2014 (the “Notes”), limited to the aggregate principal amount of
$172,500,000 all issued or to be issued under and pursuant to a First Supplemental Indenture, dated
as of May 13, 2009, between the Company and The Bank of New York Mellon Trust Company, National
Association, as trustee (the “Trustee”), to the Indenture, dated as of March 13, 2009, between the
Company and the Trustee (as such may be amended from time to time, the “Indenture”) to which
Indenture and all indentures supplemental thereto reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders of the Notes. Additional Notes may be issued in an unlimited aggregate
principal amount, subject to certain conditions specified in the Indenture.




          In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of and interest, including Additional Interest, if any, on all Notes may
be declared, by either the Trustee or the holders of not less than 25% in aggregate principal
amount of Notes then Outstanding, and upon said declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions and certain exceptions set forth in the
Indenture.




          Subject to the terms and conditions of the Indenture, the Company will make all payments and
deliveries in respect of the Fundamental Change Repurchase Price and the principal amount on the
Maturity Date, as the case may be, to each holder who surrenders a Note to a Paying Agent to
collect such payments in respect of the Note. The Company will pay cash amounts in money of the
United States that at the time of payment is legal tender for payment of public and private debts.




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




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




          The Notes are issuable in registered form without coupons in denominations of $1,000 principal
amount and integral multiples thereof. At the office or agency of the Company referred to on the
face hereof, and in the manner and subject to the limitations provided in the Indenture, Notes may
be exchanged for a like aggregate principal amount of Notes of other authorized denominations,
without payment of any service charge but, if required by the Company or Trustee, with payment of a
sum sufficient to cover any tax, assessments or other governmental charges that may be imposed in
connection therewith as a result of the name of the holder of the new Notes issued upon such
exchange of Notes being different from the name of the holder of the old Notes surrendered for such
exchange.




A-5









 








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




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




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




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




A-6









 








ABBREVIATIONS




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




	 	 	 	 	 	 	 
	TEN COM -as tenants in common

	 	UNIF GIFT MIN ACT
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Custodian	 	 
	 

	 	 	 	 	 	 
	 

	 	(Cust)	 	 	 	 
	 
	 	 	 	 	 	 
	TEN ENT -as tenants by the entireties
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	(Minor)	 	 	 	 
	 
	 	 	 	 	 	 
	JT TEN -as joint tenants with right of
survivorship and not as tenants in common

	 	Uniform Gifts to Minors Act
	 	(State)	 	 
	 

	 	 	 	 	 	 





Additional abbreviations may also be used

though not in the above list.




A-7









 








SCHEDULE OF INCREASES AND DECREASES IN GLOBAL SECURITY4




US AIRWAYS GROUP, INC.

7.25% Convertible Senior Notes due 2014




          The initial principal amount of this Global Note is $[          ]. The following
increases or decreases in this Global Note have been made:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Signature	 
	 	 	Amount of decrease in	 	 	Amount of increase in	 	 	Principal Amount of this	 	 	of authorized signatory of	 
	 	 	Principal Amount of this	 	 	Principal Amount of this	 	 	Global Note following	 	 	Trustee or	 
	Date	 	Global Note	 	 	Global Note	 	 	such decrease or increase	 	 	Custodian	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 







 




			
	4	 	For Global Notes only.






A-8











 





EXHIBIT B




[FORM OF NOTICE OF CONVERSION]



To: US AIRWAYS GROUP, INC.




     The undersigned registered owner of this Note hereby exercises the option to convert this
Note, or the portion hereof (that is $1,000 principal amount or an integral multiple thereof) below
designated, into cash, shares of Common Stock or a combination of cash and shares of Common Stock,
as applicable, in accordance with the terms of the Indenture referred to in this Note, and directs
that any shares of Common Stock issuable and deliverable upon such conversion, together with any
cash comprising the Daily Conversion Values or a portion of the Daily Settlement Amounts for each
of the twenty Trading Days during the Cash Settlement Averaging Period and for any fractional
shares, and any Notes representing any unconverted principal amount hereof, be issued and delivered
to the registered holder hereof unless a different name has been indicated below. If any shares of
Common Stock or any portion of this Note not converted are to be issued in the name of a Person
other than the undersigned, the undersigned will pay all transfer taxes, assessments or other
governmental charges payable with respect thereto. Any amount required to be paid to the
undersigned on account of interest accompanies this Note.



	 	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 

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






B-1









 






	 	 	 	 	 
	Fill in for registration of shares if
to be issued, and Notes if to
be delivered, other than to and in the
name of the registered holder:
	 	 	 	 
	 
	 	 	 	 
	 

(Name)

	 	 	 	 
	 
	 	 	 	 
	 

(Street Address)

	 	 	 	 
	 
	 	 	 	 
	 

(City, State and Zip Code)

	 	 	 	 
	Please print name and address
	 	 	 	 
	 
	 	 	 	 
	 

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

	 	$                    ,000	 	 
	 
	 	 	 	 
	 

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

	 	 

Social Security or Other Taxpayer Identification
Number
	 	 







B-2









 








EXHIBIT C




[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]



To: US AIRWAYS GROUP, INC.



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



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




	 	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 

Signature(s)
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 

Social Security or Other Taxpayer Identification
Number
	 	 
	 
	 	 	 	 	 	 	 	 
	 

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

	 	 	 	 	 	$                    ,000	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 

Certificate Numbers (if applicable)
	 	 
	 
	 	 	 	 	 	 	 	 
	 

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







C-1









 








EXHIBIT D




[FORM OF ASSIGNMENT AND TRANSFER]



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




	 	 	 	 	 
	Dated:
	 	 	 	 
	 

	 	 

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





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





D-1