Exhibit
4.1

     

    
      EXECUTION COPY

      


       

       

      
        

        

      

       

      
 

      WESTERN
REFINING, INC.

      


      as
Issuer

      


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

         

        as
Trustee

      

       

       

      
 

      Supplemental
Indenture

       

      Dated
as of June 10, 2009

       

      Supplemental
to

       

      Senior
Indenture Dated as of June 10, 2009

      


      


      


      


      5.75%
Convertible Senior Notes due 2014

      


      


      


      


      
        

        

      

      


      
        
          
          

        

        
          
          

          
          

        

        
          
          

        

         

      

      TABLE OF CONTENTS

      


      Page


      
        
          	
                  ARTICLE
      1

                
	 
      	 
      
	
                  DEFINITIONS
      AND OTHER PROVISIONS OF GENERAL APPLICATION

                
	 
      	 
      
	
                  SECTION
      1.01.    Scope of Supplemental
    Indenture

                	
                  2

                
	
                  SECTION
      1.02.    Definitions

                	
                  2

                
	 
      	 
      
	
                  ARTICLE
      2

                
	 
      	 
      
	
                  THE
      SECURITIES

                
	 
      	 
      
	
                  SECTION
      2.01.    Title and Terms; Payments

                	
                  10

                
	
                  SECTION
      2.02.    Book-Entry Provisions for Global
      Notes

                	
                  11

                
	
                  SECTION
      2.03.    CUSIP Numbers

                	
                  12

                
	
                  SECTION
      2.04.    Reporting Requirement

                	
                  12

                
	 
      	 
      
	
                  ARTICLE
      3

                
	 
      	 
      
	
                  FUNDAMENTAL
      CHANGES AND REPURCHASES THEREUPON; NO OPTIONAL

                
	
                  REDEMPTION

                
	 
      	 
      
	
                  SECTION
      3.01.    Repurchase at Option of Holders Upon a
      Fundamental Change

                	
                  12

                
	
                  SECTION
      3.02.    Effect of Fundamental Change Repurchase
      Notice

                	
                  15

                
	
                  SECTION
      3.03.    Withdrawal of Fundamental Change Repurchase
      Notice

                	
                  15

                
	
                  SECTION
      3.04.    Deposit of Fundamental Change Repurchase
      Price

                	
                  16

                
	
                  SECTION
      3.05.    Notes Repurchased in Whole or in
      Part

                	
                  16

                
	
                  SECTION
      3.06.    Covenant to Comply With Applicable Laws Upon
      Repurchase of Notes

                	
                  16

                
	
                  SECTION
      3.07.    Repayment to the Company

                	
                  16

                
	
                  SECTION
      3.08.    No Optional Redemption by the
      Company

                	
                  16

                
	 
      	 
      
	
                  ARTICLE
      4

                
	 
      	 
      
	
                  CONVERSION

                
	 
      	 
      
	
                  SECTION
      4.01.    Conversion Privilege

                	
                  17

                
	
                  SECTION
      4.02.    Conversion Procedures

                	
                  19

                
	
                  SECTION
      4.03.    Settlement Upon Conversion

                	
                  21

                
	
                  SECTION
      4.04.    Adjustment of Conversion Rate

                	
                  23

                
	
                  SECTION
      4.05.    Certain Other Adjustments

                	
                  31

                
	
                  SECTION
      4.06.    Adjustments Upon Certain Fundamental
      Changes

                	
                  31

                
	
                  SECTION
      4.07.    Effect of Recapitalization, Reclassification,
      Consolidation, Merger or Sale

                	
                  33

                
	
                  SECTION
      4.08.    Taxes on Shares Issued

                	
                  35

                


        

      

      


      
        
          
          

        

        
          i

          
            

          

        

        
          
          

        

      

       

      
        	
                SECTION 4.09.    Reservation of Shares;
      Shares to be Fully Paid; Compliance With

              	 
      
	
                 
      Governmental Requirements; Listing of Common Stock

              	
                35

              
	
                SECTION
      4.10.    Responsibility of Trustee

              	
                35

              
	
                SECTION
      4.11.    Notice to Holders Prior to Certain
      Actions

              	
                36

              
	
                SECTION
      4.12.    Stockholder Rights Plan

              	
                37

              
	 
      	 
      
	
                ARTICLE
      5

              
	 
      	 
      
	
                REMEDIES

              
	 
      	 
      
	
                SECTION
      5.01.    Events of Default

              	
                37

              
	
                SECTION
      5.02.    Additional Interest

              	
                38

              
	
                SECTION
      5.03.    Waiver of Past Defaults

              	
                38

              
	
                SECTION
      5.04.    Rights of Holders to Receive
      Payment

              	
                39

              
	
                SECTION
      5.05.    Notice of Default

              	
                39

              
	 
      	 
      
	
                ARTICLE
      6

              
	 
      	 
      
	
                SATISFACTION
      AND DISCHARGE

              
	 
      	 
      
	
                SECTION
      6.01.    Satisfaction and Discharge of the
      Supplemental Indenture

              	
                39

              
	
                SECTION
      6.02.    Deposited Monies to Be Held in Trust by
      Trustee

              	
                40

              
	
                SECTION
      6.03.    Paying Agent to Repay Monies
    Held

              	
                40

              
	
                SECTION
      6.04.    Return of Unclaimed Monies

              	
                40

              
	
                SECTION
      6.05.    Reinstatement

              	
                41

              
	 
      	 
      
	
                ARTICLE
      7

              
	 
      	 
      
	
                SUPPLEMENTAL
      INDENTURES

              
	 
      	 
      
	
                SECTION
      7.01.    Amendments or Supplements Without Consent of
      Holders

              	
                41

              
	
                SECTION
      7.02.    Amendments, Supplements or Waivers With
      Consent of Holders

              	
                41

              
	 
      	 
      
	
                ARTICLE
      8

              
	 
      	 
      
	
                CONSOLIDATION;
      MERGER; SALE OF ASSETS

              
	 
      	 
      
	
                SECTION
      8.01.    Company May Consolidate, Etc., Only on
      Certain Terms

              	
                42

              
	
                SECTION
      8.02.    Successor Substituted

              	
                43

              
	 
      	 
      
	
                ARTICLE
      9

              
	 
      	 
      
	
                INAPPLICABLE
      PROVISIONS OF THE ORIGINAL INDENTURE

              
	 
      	 
      
	
                SECTION
      9.01.    Article 3, Sections 5.01, 5.02 and 8.05 of
      Original Indenture

              	
                43

              


      

      


      
        
          
          

        

        
          ii

          
            

          

        

        
          
          

        

      

       

      
        	
                ARTICLE 10

              
	 
      	 
      
	
                MISCELLANEOUS

              
	 
      	 
      
	
                SECTION
      10.01.  Governing Law

              	
                44

              
	
                SECTION
      10.02.  Payments on Business Days

              	
                44

              
	
                SECTION
      10.03.  No Security Interest Created

              	
                44

              
	
                SECTION
      10.04.  Trust Indenture Act

              	
                44

              
	
                SECTION
      10.05.  Benefits of Indenture

              	
                44

              
	
                SECTION
      10.06.  Calculations

              	
                44

              
	
                SECTION
      10.07.  Table of Contents, Headings, Etc

              	
                45

              
	
                SECTION
      10.08.  Execution in Counterparts

              	
                45

              
	
                SECTION
      10.09.  Severability

              	
                45

              
	
                SECTION
      10.10.  Ratification of Indenture

              	
                45

              


      

      


       

      EXHIBITS

      


      
        	
                Exhibit
      A

              	
                Form
      of Note

              	
                A-1

              
	
                Exhibit
      B

              	
                Form
      of Conversion Notice

              	
                B-1

              
	
                Exhibit
      C

              	
                Form
      of Fundamental Change Repurchase Notice

              	
                C-1

              
	
                Exhibit
      D

              	
                Form
      of Assignment and Transfer

              	
                D-1

              


      

      


      
        
          
          

        

        
          iii

          
            

          

        

        
          
          

        

      

       

      SUPPLEMENTAL INDENTURE, dated as of June 10, 2009, between Western
Refining, Inc., a Delaware corporation (the “Company,” which term includes
any successor Person under the Indenture hereinafter referred to), and The Bank
of New York Mellon Trust Company, N.A., as trustee (the “Trustee”) under the Indenture
dated as of June 10, 2009, between the Company and the Trustee (as amended or
supplemented from time to time in accordance with the terms thereof, the “Original
Indenture”).

      


      RECITALS
OF THE COMPANY

      


      WHEREAS,
the Company executed and delivered the Original Indenture to the Trustee to
provide, among other things, for the issuance, from time to time, of the
Company’s senior debentures, notes or other evidences of indebtedness (the
“Securities”), in an
unlimited aggregate principal amount, in one or more series to be established by
the Company under, and authenticated and delivered as provided in, the Original
Indenture;

      


      WHEREAS,
Section 9.01(e) of the Original Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Original Indenture to
establish the form and terms of Securities of any series as contemplated by
Sections 2.01 and 2.03 of the Original Indenture;

      


      WHEREAS,
the Board of Directors has duly adopted resolutions authorizing the Company to
execute and deliver this Supplemental Indenture;

      


      WHEREAS,
pursuant to the terms of the Original Indenture, the Company desires to
establish a new series of its Securities to be known as its “5.75% Convertible
Senior Notes due 2014” (the “Notes”), the form and
substance of such Notes and the terms, provisions and conditions thereof to be
set forth as provided in the Original Indenture and this Supplemental
Indenture;

      


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

      


      WHEREAS,
the Company has requested that the Trustee execute and deliver this Supplemental
Indenture, and all requirements necessary to make (i) this Supplemental
Indenture a valid instrument in accordance with its terms, and (ii) the Notes,
when executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been performed, and the execution and
delivery of this Supplemental Indenture have been duly authorized in all
respects.

      


      NOW,
THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, for and in consideration of
the premises and the purchases of the Notes by the Holders thereof, it is
mutually agreed, for the benefit of the Company and the equal and proportionate
benefit of all Holders of the Notes, as follows:

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

      

      ARTICLE 1

      


      DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION

      


      SECTION
1.01. Scope of
Supplemental Indenture. The changes, modifications and supplements to the
Original Indenture effected by this Supplemental Indenture shall be applicable
only with respect to, and shall only govern the terms of, the Notes, which may
be issued from time to time, and shall not apply to any other Securities that
may be issued under the Original Indenture unless a supplemental indenture with
respect to such other Securities specifically incorporates such changes,
modifications and supplements. The provisions of this Supplemental Indenture
shall supersede any corresponding provisions in the Original
Indenture.

      


      SECTION
1.02. Definitions. For all
purposes of the Indenture, except as otherwise expressly provided or unless the
context otherwise requires:

      


      (i) the
terms defined in this Article 1 shall have the meanings assigned to them in this
Article and include the plural as well as the singular;

      


      (ii) all
words, terms and phrases defined in the Original Indenture (but not otherwise
defined herein) shall have the same meanings as in the Original
Indenture;

      


      (iii) all
other terms used herein that are defined in the Trust Indenture Act, either
directly or by reference therein, shall have the meanings assigned to them in
the Trust Indenture Act;

      


      (iv) all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in accordance with generally accepted accounting principles, and, except
as otherwise herein expressly provided, the term “generally accepted accounting
principles” with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted at the date of
this instrument; and

      


      (v) the
words “herein,” “hereof” and “hereunder” and other words of similar import refer
to this Supplemental Indenture as a whole and not to any particular Article,
Section or other subdivision.

      


      “Additional Interest” has the
meaning specified in Section 5.02.

      


      “Additional Notes” has the
meaning specified in Section 2.01.

      


      “Additional Shares” has the
meaning specified in Section 4.06(a).

      


      “Agent Members” has the meaning
specified in Section 2.02.

      


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

      


      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

         

      

      “Business
Day” means, with respect to any Note, any day other than a Saturday, a
Sunday or any other day on which banks or trust companies in The City of New
York are authorized or required by law or executive order to be
closed.

      


      “Clause A Distribution” has the
meaning specified in Section 4.04(c).

      


      “Clause B Distribution” has the
meaning specified in Section 4.04(c).

      


      “Clause C Distribution” has the
meaning specified in Section 4.04(c).

      


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

      


      “Common Stock” means, subject
to Section 4.07, the shares of common stock, par value $0.01 per share, of the
Company as such shares of common stock exist on the date of this Supplemental
Indenture.

      


      “Consideration Notice” has the
meaning specified in Section 4.03(b)(i).

      


      “Continuing Directors” means
(i) individuals who on the date of original issuance of the Notes constituted
the board of directors of the Company and (ii) any new members of the board of
directors of the Company whose election to the board of directors of the Company
or whose nomination for election by the stockholders of the Company was approved
by at least a majority of the members of the board of directors of the Company
then still in office (or a duly constituted committee thereof), either who were
members of the board of directors of the Company on the date of original
issuance of the Notes or whose election or nomination for election was
previously so approved.

      


      “Conversion Agent” means the
Trustee or such other office or agency designated by the Company where Notes may
be presented for conversion. The Conversion Agent shall initially be the
Trustee.

      


      “Conversion Date” has the
meaning specified in Section 4.02(b).

      


      “Conversion Notice” has the
meaning specified in Section 4.02(b).

      


      “Conversion Obligation” has the
meaning specified in Section 4.01(a).

      


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

      


      “Conversion Rate” means,
initially, 92.5926 shares of Common Stock per $1,000 principal amount of Notes,
subject to adjustment as set forth herein.

      


      “Custodian” means the Trustee,
as custodian with respect to the Notes (so long as the Notes constitute Global
Notes), or any successor entity.

      


      “Daily Conversion Value” means,
for each of the 25 consecutive VWAP Trading Days during the relevant Observation
Period, one twenty-fifth (1/25th) of the product of (1) the

      


      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

       

      applicable Conversion Rate on such VWAP Trading Day and (2) the Daily
VWAP on such VWAP Trading Day of the Common Stock or the Daily VWAP on such VWAP
Trading Day of one unit of the Reference Property into which the Common Stock
has been converted in connection with any Merger Event. Any determination of the
Daily Conversion Value by the Company will be conclusive absent manifest
error.

      


      “Daily Settlement Amount” for
each of the 25 VWAP Trading Days during the applicable Observation Period
means:

      


      (a) an amount
of cash equal to the lesser of (x) $40 and (y) the Daily Conversion Value for
such VWAP Trading Day; and

      


      (b) if the
Daily Conversion Value exceeds $40, a number of shares of Common Stock equal to
the Daily Share Amount.

      


      “Daily Share Amount” means,
with respect to any VWAP Trading Day during the relevant Observation Period, a
number of shares of Common Stock equal to (A) the difference between the Daily
Conversion Value on such VWAP Trading Day and $40, divided by (B) the Daily VWAP of the
Common Stock on such VWAP Trading Day.

      


      “Daily VWAP” for the Common
Stock means, for each of the 25 consecutive VWAP Trading Days during the
applicable Observation Period, the per share volume-weighted average price as
displayed under the heading “Bloomberg VWAP” on Bloomberg page
WNR.N<equity>AQR (or any equivalent successor page) in respect of the
period from the scheduled open of trading on the principal trading market for
the Common Stock to the scheduled close of trading on such market on such VWAP
Trading Day (without regard to after- hours trading), or if such volume-weighted
average price is unavailable, the market value of one share of the Common Stock
(or one unit of Reference Property consisting of marketable equity securities)
on such VWAP Trading Day using a volume-weighted method (or, in the case of
Reference Property consisting of cash, the amount of such cash or in the case of
Reference Property other than marketable equity securities or cash, the market
value thereof), in each case as determined by a nationally recognized
independent investment banking firm retained for this purpose by the
Company.

      


      “Depositary” means The
Depository Trust Company until a successor Depositary shall have become such
pursuant to the applicable provisions of the Indenture, and thereafter
“Depositary” shall mean such successor Depositary.

      


      “Effective Date” has the
meaning specified in Section 4.06(b).

      


      “Event of Default” has the
meaning specified in Section 5.01.

      


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

      


      “Ex-Date” means the first date
upon which the shares of Common Stock trade on the relevant exchange or in the
relevant market, regular way, without the right to receive such issuance or
distribution in question.

      


      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

         

      

      “Existing
Owners” means (1) each of Paul L. Foster, Jeff A. Stevens, Scott D.
Weaver and Ralph A. Schmidt and their respective immediate family members (as
defined by the National Association of Security Dealers Automatic Quotation
system listing requirements) or the spouses and former spouses (including widows
and widowers), heirs or lineal descendants of any of the foregoing; (2) Franklin
Mountain Investments Limited Partnership; and (3) any affiliate controlled by
any of the foregoing.

      


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

      


      (1) a
“person” or “group” within the meaning of Section 13(d) of the Exchange Act,
other than the Company, its Subsidiaries, and its and their employee benefit
plans and the Existing Owners, 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 “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, or the Existing Owners, considered
as a group, file a Schedule TO or any schedule, form or report under the
Exchange Act disclosing that such group has become the direct or indirect
“beneficial owner” of the Company’s common equity representing more than 70% of
the voting power of the Company’s common equity;

      


      (2)
consummation of any share exchange, consolidation or merger of the Company or
any other transaction or series of transactions pursuant to which 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 transactions of all or
substantially all of the consolidated assets of the Company and its
Subsidiaries, taken as a whole, to any Person other than one of the Company’s
Subsidiaries; provided,
however, that a
transaction where the holders of all classes of the Company’s common equity
immediately prior to such transaction that is a share exchange, consolidation or
merger (each such holder, a “pre-transaction holder”) own,
directly or indirectly, more than 50% of all classes of common equity of the
continuing or surviving corporation or transferee or the parent thereof
immediately after such event shall not be a Fundamental Change, so long as the
proportion of the respective ownership of each pre-transaction holder remains
substantially the same relative to all other pre-transaction
holders;

      


      (3) the
first day on which a majority of the members of the board of directors of the
Company does not consist of Continuing Directors;

      


      (4) the
Company’s stockholders approve any plan or proposal for the liquidation or
dissolution of the Company; or

      


      (5) the
Common Stock (or other common stock into which the Notes are then convertible,
in whole or in part) ceases to be listed or quoted on any of the New York Stock
Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or any of
their respective successors).

      


      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

       

      Notwithstanding the foregoing, it shall not be a Fundamental Change
upon the occurrence of any transaction described in clauses (1) or (2) above if
at least 90% of the consideration received or to be received by the holders of
the Common Stock, excluding cash payments for fractional shares of the Common
Stock and cash payments made pursuant to dissenters’ appraisal rights, in
connection with such transaction consists of common stock traded on any of the
New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global
Market (or any of their respective successors) or that will be so traded or
quoted when issued or exchanged in connection with such transactions and as a
result of this transaction the Notes become convertible into such consideration,
excluding cash payments for fractional shares, subject to the Company’s right to
pay cash or pay cash and deliver shares of Common Stock to converting holders as
set forth in Section 4.03(c)(ii) and (iii), respectively.

      


      “Fundamental Change Company
Notice” has the meaning specified in Section 3.01(b).

      


      “Fundamental Change Repurchase
Date” has the meaning specified in Section 3.01(a).

      


      “Fundamental Change Repurchase
Notice” has the meaning specified in Section 3.01(a)(i).

      


      “Fundamental Change Repurchase
Price” has the meaning specified in Section 3.01(a).

      


      “Global Note” means any
registered Note that is in global form.

      


      “Indenture” means the Original
Indenture, as originally executed and as supplemented from time to time by one
or more indentures supplemental thereto, including this Supplemental Indenture,
entered into pursuant to the applicable provisions of the Indenture, including,
for all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
the Original Indenture, this Supplemental Indenture and any other such
supplemental indenture, respectively.

      


      “Initial Notes” has the meaning
specified in Section 2.01.

      


      “Interest Payment Date” means,
with respect to the payment of interest on the Notes, each June 15 and December
15 of each year, beginning on December 15, 2009.

      


      “Last Reported Sale Price” of
the Common Stock on any date means the closing sale price per share of Common
Stock (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. securities exchange on which the Common Stock is traded. If
the Common Stock is not listed for trading on a U.S. national or regional
securities exchange on the relevant date, the “Last Reported Sale Price” shall be
the last quoted bid price for the Common Stock in the over-the-counter market
on the relevant date as reported by Pink OTC Markets Inc. or similar
organization. If the Common Stock is not so quoted, the “Last Reported Sale Price”
shall be the average of the mid-point of the last bid and ask prices for the
Common Stock on the relevant

      


      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      

      


      date from a nationally recognized independent investment banking
firm selected by the Company for this purpose.

      


      “Make-Whole Fundamental Change”
means any transaction or event that constitutes a Fundamental Change (determined
after giving effect to any exceptions or exclusions to such definition, but
without regard to the proviso in clause (2) of the
definition thereof).

      


      “Market Disruption Event” means
the occurrence or existence on any Scheduled Trading Day for the Common Stock 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 futures contracts relating to the Common
Stock, and such suspension or limitation occurs or exists at any time within the
30 minutes prior to the closing time of the relevant exchange on such
day.

      


      “Measurement Period” has the
meaning specified in Section 4.01(b).

      


      “Merger Event” has the meaning
specified in Section 4.07(a).

      


      “Net Share Settlement Election”
has the meaning specified in Section 4.03(a)(i).

      


      “Note” or “Notes” has the meaning
specified in the fourth paragraph of the recitals of this Supplemental
Indenture, and shall include any Additional Notes issued pursuant to Section
2.01 hereof.

      


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

      


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

      


      “Observation Period” with
respect to any Note means:

      


      (a) with
respect to any Conversion Date occurring on or after the 30th Scheduled Trading
Day immediately preceding the Stated Maturity, the 25 consecutive VWAP Trading
Day period beginning on, and including, the 27th Scheduled Trading Day
immediately preceding the Stated Maturity (or if such day is not a VWAP Trading
Day, the next succeeding VWAP Trading Day); and

      


      (b) in all
other instances, the 25 consecutive VWAP Trading Day period beginning on, and
including, the third Trading Day immediately following the relevant Conversion
Date.

      


      “Original Indenture” has the
meaning specified in the first paragraph of this Supplemental
Indenture.

      


      “Paying Agent” has the meaning
set forth in Section 2.05 of the Original Indenture, which shall initially be
the Trustee, and shall be the Person authorized by the

      


      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

      

      


      Company
to pay the principal amount of, interest on, or Fundamental Change Repurchase
Price of, any Notes on behalf of the Company.

      


      “Physical Notes” means
certificated Notes that are not in global form and are registered Notes issued
in denominations of $1,000 principal amount and multiples thereof.

      


      “Place of Payment” means, for
purposes of the Notes, New York, New York.

      


      “Principal Portion” means, for
each of the 25 VWAP Trading Days during the applicable Observation Period the
amount determined pursuant to clause (a) of the definition of “Daily Settlement
Amount”.

      


      “Prospectus Supplement” means
the prospectus supplement dated June 4, 2009 to the prospectus filed by the
Company with the Commission on April 23, 2009 and relating to the offering and
sale of the Notes.

      


      “Reference Property” has the
meaning specified in Section 4.07(c).

      


      “Registrar” has the meaning set
forth in Section 2.05 of the Original Indenture.

      


      “Regular Record Date” means,
with respect to the payment of interest on the Notes, the June 1 (whether or not
a Business Day) immediately preceding an Interest Payment Date on June 15 and
the December 1 (whether or not a Business Day) immediately preceding an Interest
Payment Date on December 15.

      


      “Security Register” has the
meaning set forth in Section 2.05 of the Original Indenture.

      


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

      


      “Significant Subsidiary” means
a “significant subsidiary” as defined in Article 1, Rule 1-02(w) of Regulation
S-X under the Securities Act of 1933, as amended.

      


      “Spin-Off” has the meaning
specified in Section 4.04(c).

      


      “Stated Maturity” means, with
respect to any Note and the payment of the principal amount thereof, June 15,
2014.

      


      “Stock Price” has the meaning
specified in Section 4.06(b).

      


      “Trading Day” means a day on
during which (i) trading in the Common Stock generally occurs on the principal
United States national or regional securities exchange or market on which the
Common Stock is listed or admitted for trading and (ii) there is no Market
Disruption Event.

      


      
        
          
          

        

        
          8

          
            

          

        

        
          
          

        

      

       

      “Trading
Price” with respect to the Notes, on any date of determination means the
average of the secondary market bid quotations obtained by the Company or its
agent for $2.0 million principal amount of Notes at approximately 3:30 p.m. (New
York City time) on such determination date from three independent nationally
recognized securities dealers selected by the Company, which may include one or
more of the Underwriters; provided, however, that if three such
bids cannot reasonably be obtained, but two such bids are obtained, then the
average of the two bids shall be used, and if only one such bid is reasonably
obtained, that one bid shall be used. If at least one bid for $2.0 million
principal amount of Notes cannot reasonably be obtained, then the trading price
per $1,000 principal amount of Notes shall be deemed to be less than 98% of the
product of the Last Reported Sale Price of the Common Stock and the applicable
Conversion Rate. Any determination made by the Company in the preceding sentence
shall be conclusive absent manifest error.

      


      “Trigger Event” has the meaning
specified in Section 4.04(c).

      


      “Underwriters” means the
underwriters named in the Underwriting Agreement.

      


      “Underwriting Agreement” means
the Underwriting Agreement, dated June 4, 2009, entered into by the Company and
the Underwriters in connection with the sale of the Notes.

      


      “U.S.” means the United States
of America.

      


      “Valuation Period” has the
meaning specified in Section 4.04(c).

      


      “VWAP Trading Day” means a day
during which (i) trading in the Common Stock generally occurs on the principal
U.S. national or regional securities exchange or market on which the Common
Stock is listed or admitted for trading and (ii) there is no VWAP Market
Disruption Event. If the Common Stock is not so listed or traded, then “VWAP
Trading Day” means a Business Day.

      


      “VWAP Market Disruption Event”
means (i) a failure by the principal U.S. national or regional securities
exchange or market on which the Common Stock is listed or admitted to trading to
open for trading during its regular trading session or (ii) the occurrence or
existence on any Scheduled Trading Day for the Common Stock for 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 futures contracts
relating to the Common Stock and traded on a principal national or regional
securities exchange or market located in the U.S.

      


      “Weighted Average
Consideration” shall have the meaning specified in Section
4.07(d)(iv).

      


      
        
          
          

        

        
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      ARTICLE
2

      


      THE
SECURITIES

      


      SECTION
2.01. Title and Terms;
Payments. There is hereby established a series of Securities designated
the “5.75% Convertible Senior Notes due 2014” initially limited in aggregate
principal amount to $230,000,000.

      


      The
principal amount of Notes then outstanding shall be payable at Stated
Maturity.

      


      The
Company may, without the consent of the Holders of the Notes, hereafter issue
additional notes (“Additional
Notes”) under the Indenture with the same terms and with the same CUSIP
number (except to the extent necessary for securities law purposes) as the Notes
issued on the date of this Supplemental Indenture (the “Initial Notes”) in an
unlimited aggregate principal amount; provided that such Additional
Notes must be part of the same issue as the Initial Notes for federal income tax
purposes. Any such Additional Notes shall constitute a single series together
with the Initial Notes for all purposes hereunder, including, without
limitation, for purposes of any waivers, supplements or amendments to the
Indenture requiring the approval of Holders of the Notes and any offers to
repurchase the Notes.

      


      The Form
of Note, the Form of Conversion Notice, the Form of Fundamental Change
Repurchase Notice and the Form of Assignment and Transfer shall be substantially
as set forth in Exhibits A, B, C and D, respectively, hereto, which are
incorporated into and shall be deemed a part of this Supplemental Indenture, in
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by the Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined to be
necessary or appropriate by the officers of the Company executing such Notes, as
evidenced by their execution of the Notes.

      


      The
Company shall pay the principal of and interest on any Global Note in
immediately available funds to the Depositary or its nominee, as the case may
be, as the registered Holder of such Global Note and shall make all such
payments in accordance with the procedures of the Depositary.

      


      The
Company shall pay the principal of any Physical Notes at the office or agency
designated by the Company for that purpose. The Company has initially designated
the Trustee as its Paying Agent and Registrar in respect of the Notes and its
agency in New York, New York as a place where Notes may be presented for payment
or for registration of transfer. The Company may, however, change the Paying
Agent or Registrar for the Notes without prior notice to the Holders thereof,
and the Company may act as Paying Agent or Registrar for the Notes. Interest on
any Physical Notes will be payable (i) to Holders of Physical Notes having an
aggregate principal amount of Notes of $5,000,000 or less, by check mailed to
the Holders of such Notes at their address in the Security Register and (ii) to
Holders having an aggregate principal amount of Physical Notes in excess of
$5,000,000, either by check mailed to each Holder at its address in the Security
Register or, upon application by a Holder to the Registrar

      


      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

      

      


      not later than the relevant Regular Record Date, by wire transfer in
immediately available funds to that Holder’s account within the United States,
which application shall remain in effect until that Holder notifies, in writing,
the Registrar to the contrary.

      


      SECTION
2.02. Book-Entry
Provisions for Global Notes. (a) The Notes initially shall be issued in
the form of one or more Global Notes without interest coupons (i) registered in
the name of Cede & Co., as nominee of the Depositary and (ii) delivered to
the Trustee as custodian for the Depositary.

      


      Members
of, or participants in, the Depositary (“Agent Members”) shall have no
rights under this Supplemental Indenture or the Original Indenture with respect
to any Global Note held on their behalf by the Depositary, or the Trustee as its
custodian, or under the Global Note, and Cede & Co., or such other Person
designated by the Depositary as its nominee, may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of the
Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of any Holder.

      


      (b)
Transfers of Global Notes shall be limited to transfers in whole, but not in
part, to the Depositary, its successors or their respective nominees. Interests
of beneficial owners in a Global Note may be transferred or exchanged, in whole
or in part, for Physical Notes, only if: (i) the Depositary notifies the Company
at any time that it is unwilling or unable to continue in its capacity as
Depositary for the Notes, or the Depositary ceases to be registered as a
clearing agency under the Exchange Act, and, in either case, a successor
Depositary is not appointed within 60 days or (ii) if an Event of Default with
respect to the Notes has occurred and is continuing, upon request by the
beneficial owner of any Note, in each case in accordance with the rules and
procedures of the Depositary. Other than as set forth in this Section 2.02(b),
the Notes shall remain in global form as Global Notes.

      


      (c) In
connection with any transfer or exchange of a portion of the beneficial interest
in the Global Note to beneficial owners pursuant to Section 2.02(b), the
Registrar shall (if one or more Physical Notes are to be issued) reflect on its
books and records the date and a decrease in the principal amount of the Global
Note in an amount equal to the principal amount of the beneficial interest in
the Global Note to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Physical Notes of like tenor
and amount. In connection with the transfer of the entire Global Note to
beneficial owners pursuant to Section 2.02(b), the Global Note shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depositary in exchange for its beneficial interest in
the Global Note, an equal aggregate principal amount of Physical Notes of
authorized denominations and the same tenor.

      


      (d)
Physical Notes issued in exchange for a Global Note pursuant to this Section
2.02 shall be registered in such names and in such authorized denominations as
the Depositary for such Global Note, pursuant to instructions from its direct or
indirect participants

      


      
        
          
          

        

        
          11

          
            

          

        

        
          
          

        

      

      


      or
otherwise, shall instruct the Trustee or an agent of the Company or the Trustee.
The Trustee or such agent shall deliver such Physical Notes to or as directed by
the Persons in whose names such Physical Notes are so registered.

      


      (e) The
Holder of Global Notes may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent
Members, to take any action that a Holder is entitled to take under this
Supplemental Indenture, Original Indenture or the Notes.

      


      SECTION
2.03. CUSIP
Numbers. In issuing the Notes, the Company may use “CUSIP” numbers (if
then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in
notices of redemption as a convenience to Holders of the Notes; provided that any such notice
may state that no representation is made as to the correctness of such numbers
as printed on the Notes and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the “CUSIP” numbers of the
Notes.

      


      SECTION
2.04. Reporting
Requirement. (a) The Company shall deliver to the Trustee within 15 days
after the same is required to be filed with the Commission, copies of any
documents and reports that the Company is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act (giving effect to any grace
period provided by Rule 12b-25 under the Exchange Act), and the Company shall
otherwise comply with the requirements of Trust Indenture Act Section
314(a).

      


      (b) The
Company intends to file the reports referred to in Section 2.04(a)
hereof with the SEC in electronic form pursuant to Regulation S-T of the SEC
using the SEC’s Electronic Data Gathering, Analysis and Retrieval (“EDGAR”)
system. The Company shall notify the Trustee in the manner prescribed herein of
each such filing. The Trustee will be directed to access the EDGAR system for
purposes of retrieving the reports so filed. Compliance with the foregoing shall
constitute delivery by the Company of such reports to the Trustee in compliance
with the provisions of Section 2.04(a)
hereof. The Trustee shall have no duty to search for or obtain any electronic or
other filings that the Company makes with the SEC, regardless of whether such
filings are periodic, supplemental or otherwise.

       

      


      ARTICLE
3

      


      
         
FUNDAMENTAL
CHANGES AND REPURCHASES THEREUPON; NO OPTIONAL REDEMPTION

      

      


      SECTION
3.01. Repurchase at
Option of Holders Upon a Fundamental Change. (a) Generally. If a
Fundamental Change occurs at any time, then each Holder of Notes shall have the
right, at such Holder’s option, to require the Company to repurchase for cash
any or all of such Holder’s Notes, or any portion of the principal amount
thereof, that is equal to $1,000 or a multiple of $1,000, on a date specified by
the Company that is not less than 20 or more than 35

      


      
        
          
          

        

        
          12

          
            

          

        

        
          
          

        

      

      


      calendar days following the date of the Fundamental Change Company
Notice (as defined below) (the “Fundamental Change Repurchase
Date”), at a repurchase price equal to 100% of the principal amount
thereof, together with accrued and unpaid interest, if any, thereon to, but
excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase
Price”); provided, however, that if a
Fundamental Change Repurchase Date is after a Regular Record Date and on or
prior to the Interest Payment Date to which such Regular Record Date relates,
the full amount of interest payable in respect of such Interest Payment Date
shall be payable to the Holders of record as of the corresponding Regular Record
Date and the Fundamental Change Repurchase Price shall be equal to 100% of the
principal amount of the Notes to be repurchased pursuant to this Article 3. The
requirement for the Company to repurchase any Notes on the Fundamental Change
Repurchase Date will be subject to extension to comply with applicable
law.

      


      Repurchases
of Notes under this Section 3.01 shall be made, at the option of the Holder
thereof, upon, in each case on or before the close of business on the Business
Day immediately preceding the Fundamental Change Repurchase Date:

      


      (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, if the Notes are Physical Notes, or in compliance with the Depositary’s
procedures for tendering interests in Global Notes, if the Notes are not
Physical Notes; and

      


      (ii)
delivery of the Notes, in the case of Physical Notes, to the Paying Agent
appointed by the Company (duly endorsed for transfer), or, in the case of book-
entry transfer of the Notes if the Notes are not Physical Notes, in compliance
with the procedures of the Depositary, such delivery or transfer being a
condition to receipt by the Holder of the Fundamental Change Repurchase Price
therefor.

      


      The
Fundamental Change Repurchase Notice in respect of any Notes to be delivered for
repurchase shall state:

      


      (i)  if such Notes are
Physical Notes, the certificate numbers of such

      


      Notes;

      


      (ii) the
portion of the principal amount of such Notes, which must be $1,000 or a
multiple thereof; and

      


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

      


      provided, however, that in the case of
Global Notes, the Fundamental Change Repurchase Notice must also comply with
appropriate procedures of the Depositary.

      


      Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this Section 3.01 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 Business Day
immediately preceding the

      


      
        
          
          

        

        
          13

          
            

          

        

        
          
          

        

      

      


      Fundamental Change Repurchase Date by delivery of a written notice
of withdrawal to the Paying Agent in accordance with Section 3.03
below.

      


      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) Fundamental Change Company
Notice. On or before the 10th calendar day after the occurrence of a
Fundamental Change, the Company shall provide to all Holders of record of the
Notes, the Trustee and the Paying Agent (in the case of any Paying Agent other
than the Trustee) a notice (the “Fundamental Change Company
Notice”) of the occurrence of such Fundamental Change and of the
resulting repurchase right at the option of the Holders arising as a result
thereof. Such notice shall be sent by first class mail or, in the case of any
Global Notes, in accordance with the procedures of the Depositary for providing
notices. Simultaneously with providing such Fundamental Change Company Notice,
the Company shall publish a notice containing the information included therein
in a newspaper of general circulation in New York, New York or shall publish
such information on the Company’s website or through such other public medium as
the Company may use at such time.

      


      Each
Fundamental Change Company Notice shall specify:

      


      
        (i)  the
events causing a Fundamental Change;

      

      


      
        (ii)  the date
of the Fundamental Change;

      

      


      
        (iii)  the last
date on which a Holder of Notes may exercise the repurchase
right pursuant to this Article 3;

      

      


      
        (iv)  the
Fundamental Change Repurchase Price;

      

      


      
        (v)  the
Fundamental Change Repurchase Date;

      

      


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

      

      


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

      


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

      


      (ix) 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 repurchase rights of the Holders of Notes or affect the validity of
the proceedings for the repurchase of the Notes pursuant to this Section
3.01.

      


      
        
          
          

        

        
          14

          
            

          

        

        
          
          

        

      

      


      (c) No Payment During Events of
Default. There
shall be no repurchase of any Notes pursuant to this Section 3.01 if there has
occurred and is continuing an Event of Default with respect to the Notes (other
than an Event of Default that is cured by the payment of the Fundamental Change
Repurchase Price of the Notes). The Paying Agent will promptly return to the
respective Holders thereof any Physical Notes held by it during the continuance
of an Event of Default (other than an Event of Default that is cured by the
payment of the Fundamental Change Repurchase Price with respect to the Notes)
and shall deem canceled any instructions for book-entry transfer of the Global
Notes in compliance with the procedures of the Depositary, in which case, upon
such return and cancellation, the Fundamental Change Repurchase Notice with
respect thereto shall be deemed to have been withdrawn.

      


      SECTION
3.02. Effect of
Fundamental Change Repurchase Notice. Upon receipt by the Paying Agent of
the Fundamental Change Repurchase Notice specified in Section 3.01 hereof, the
Holder of the Note in respect of which such Fundamental Change Repurchase Notice
was given shall (unless such Fundamental Change Repurchase Notice is withdrawn
in accordance with Section 3.03 hereof) thereafter be entitled to receive solely
the Fundamental Change Repurchase Price in cash with respect to such Note. Such
Fundamental Change Repurchase Price shall be paid to such Holder, subject to
receipt of funds by the Paying Agent, on the later of (x) the Fundamental Change
Repurchase Date with respect to such Note (provided the conditions in
Section 3.01 hereof have been satisfied) and (y) the time of book- entry
transfer or delivery of such Note to the Paying Agent by the Holder thereof in
the manner required by Section 3.01 hereof.

      


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

      


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

      


      (ii) if
Physical Notes have been issued, the certificate numbers of the withdrawn Notes;
and

      


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

      


      provided, however, that if such
written notice of withdrawal relates to Notes that are not Physical Notes, such written
notice of withdrawal must comply with appropriate procedures of the
Depositary.

      


      The
Paying Agent will promptly return to the respective Holders thereof any Physical
Notes with respect to which a Fundamental Change Repurchase Notice has been
withdrawn in compliance with the provisions of this Section 3.03.

      


      
        
          
          

        

        
          15

          
            

          

        

        
          
          

        

      

       

      SECTION 3.04. Deposit of Fundamental
Change Repurchase Price. Prior to 11:00 a.m. (local time in The City of
New York) on the Fundamental Change Repurchase Date, the Company shall deposit
with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of
either of them is acting as the Paying Agent, shall segregate and hold in trust
as provided herein) an amount of money (in immediately available funds if
deposited on such Business Day) sufficient to pay the Fundamental Change
Repurchase Price of all the Notes or portions thereof that are to be repurchased
as of the Fundamental Change Repurchase Date. If the Paying Agent holds cash
sufficient to pay the Fundamental Change Repurchase Price of the Notes for which
a Fundamental Change Repurchase Notice has been tendered and not withdrawn in
accordance with this Supplemental Indenture on the Fundamental Change Repurchase
Date, then as of such Fundamental Change Repurchase Date, (a) such Notes will
cease to be outstanding and interest will cease to accrue thereon (whether or
not book-entry transfer of such Notes is made or whether or not such Notes have
been delivered to the Paying Agent) and (b) all other rights of the Holders in
respect thereof will terminate (other than the right to receive the Fundamental
Change Repurchase Price and previously accrued and unpaid interest (if any) upon
delivery or book-entry transfer of such Notes).

      


      SECTION
3.05. Notes
Repurchased in Whole or in Part. Any Note that is to be repurchased,
whether in whole or in part, shall be surrendered at the office of the Paying
Agent (with, if the Company or the Trustee so requires in the case of Physical
Notes, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or such Holder’s attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Note, without service charge, a new Note or Notes of any authorized denomination
as requested by such Holder in aggregate principal amount equal to, and in
exchange for, the portion of the principal amount of the Note so surrendered
that is not repurchased.

      


      SECTION
3.06. Covenant to
Comply With Applicable Laws Upon Repurchase of Notes. In
connection with any offer to repurchase Notes under Section 3.01 hereof,
the Company shall,
in each case if required, (i) comply with Rule 13e-4, Rule 14e-1 and any other
tender offer rules under the Exchange Act that may then be applicable and (ii)
file a Schedule TO or any other required schedule under the Exchange
Act.

      


      SECTION
3.07. Repayment to the
Company. To the extent that the aggregate amount of cash deposited by the
Company pursuant to Section 3.04 exceeds the aggregate Fundamental Change
Repurchase Price of the Notes or portions thereof that the Company is obligated
to repurchase as of the Fundamental Change Repurchase Date, then, following the
Fundamental Change Repurchase Date, the Paying Agent shall promptly return any
such excess to the Company.

      


      SECTION
3.08. No Optional
Redemption by the Company. The Notes may not be redeemed by the Company
at its option prior to the Stated Maturity.

      


      
        
          
          

        

        
          16

          
            

          

        

        
          
          

        

         

      

      ARTICLE 4

      


      CONVERSION

      


      SECTION
4.01.    Conversion
Privilege.  (a)   Upon compliance with the
provisions
of this Article 4 and subject to the restrictions set forth in Section 4.01(b),
a Holder shall have the right, at such Holder’s option, to convert all or any
portion (if the portion to be converted is $1,000 principal amount or an
integral multiple thereof) of such Note (i) subject to satisfaction of the
conditions described in Section 4.01(b) below, at any time prior to March 15,
2014 under the circumstances and during the periods set forth in Section 4.01(b)
below, and (ii) regardless of the conditions described in Section 4.01(b) below,
on or after March 15, 2014 and prior to the close of business on the second
Scheduled Trading Day immediately preceding the Stated Maturity, in each case,
at the Conversion Rate (subject to the settlement provisions of Section 4.03,
the “Conversion
Obligation”).

      


      (b) (i)
Prior to the close of business on the Business Day immediately preceding March
15, 2014, the Notes may be surrendered for conversion during the five Business
Day period after any five consecutive Trading Day period (the “Measurement Period”) in which
the Trading Price per $1,000 in principal amount of Notes for each Trading Day
of such Measurement Period was less than 98% of the product of the
then-applicable Conversion Rate on such Trading Day and the Last Reported Sale
Price of the Common Stock on such Trading Day. The Company shall have no
obligation to determine the Trading Price of the Notes unless a Noteholder
provides the Company with reasonable evidence that the Trading Price per $1,000
in principal amount of the Notes would be less than 98% of the product of the
then-applicable Conversion Rate and the Last Reported Sale Price of the Common
Stock at such time, at which time the Company shall determine the Trading Price
of the Notes beginning on the next Trading Day and on each successive Trading
Day until the Trading Price per $1,000 in principal amount of Notes is greater
than or equal to 98% of the product of the then-applicable Conversion Rate and
the Last Reported Sale Price of the Common Stock on such Trading Day. If the
Company does not determine the Trading Price of the Notes as provided in the
preceding sentence, then the Trading Price per $1,000 in principal amount of
Notes will be deemed to be less than 98% of the product of the Last Reported
Sale Price of the Common Stock and the then-applicable Conversion Rate on each
Trading Day that it fails to do so. If the Trading Price condition set forth
above has been met, the Company shall so notify the Noteholders, the Trustee and
the Conversion Agent. If, at any time after the Trading Price condition set
forth above has been met, the Trading Price per $1,000 principal amount of Notes
is greater than 98% of the product of the then-applicable Conversion Rate and
the Last Reported Sale Price of the Common Stock on such Trading Day, the
Company shall so notify the Holders of the Notes, the Trustee and the Conversion
Agent.

      


      (ii)
Prior to the close of business on the Business Day immediately preceding March
15, 2014, the Notes may be surrendered for conversion during any calendar
quarter beginning after the calendar quarter ending September 30, 2009, and only
during such calendar quarter, if the Last Reported Sale Price of the Common
Stock for 20 or more Trading Days in a period of 30 consecutive Trading Days
ending on the last Trading Day of the immediately preceding calendar quarter
exceeds 130% of the then-applicable Conversion Price on the last Trading Day of
such preceding calendar quarter.

      


      
        
          
          

        

        
          17

          
            

          

        

        
          
          

        

      

      


      (iii)      In the event that the
Company elects to:

      


      (A) issue
to all or substantially all holders of the Common Stock any rights, options or
warrants entitling them, for a period of not more than 60 calendar days after
the date of such issuance, to subscribe for or purchase shares of the Common
Stock at a price per share less than the average of the Last Reported Sale
Prices of the Common Stock for the ten consecutive Trading Day period ending on
and including the Trading Day immediately preceding the Ex- Date for such
issuance; or

      


      (B)
distribute to all or substantially all holders of the Common Stock assets of the
Company (including cash), debt securities or rights to purchase securities of
the Company, which distribution has a per share value (as determined by the
Board of Directors) exceeding 15% of the Last Reported Sale Price of the Common
Stock on the Trading Day immediately preceding the declaration date for such
distribution,

      


      then, in
each case, the Company shall notify all Holders of the Notes and the Trustee at
least 30 Scheduled Trading Days prior to the Ex-Date for such distribution. Once
the Company has given such notice, Holders may surrender their Notes for
conversion at any time until the earlier of (i) 5:00 p.m. (New York City time)
on the Business Day immediately preceding the Ex-Date for such distribution or
(ii) the announcement by the Company that such distribution will not take place,
even if the Notes are not otherwise convertible at such time (in which event
Holders will be permitted to withdraw any Notes submitted for conversion in
connection with such distribution). Holders may not exercise the conversion
right described in this Section 4.01(b)(iii) if they may participate (as a
result of holding Notes, and at the same time as holders of Common Stock
participate) in any of the transactions described in subparagraph (A) or (B) as
if such Noteholders held a number of shares of Common Stock equal to the
applicable Conversion Rate, multiplied by the principal amount of Notes held by
such Holders divided by $1,000, without having to convert their
Notes.

      


      (iv) In
the event of a Make-Whole Fundamental Change or Fundamental Change, the Company
shall notify the Holders and the Trustee of the occurrence of any such event no
later than the date on which such event occurs or becomes effective and shall
issue a press release on such date. Once the Company has provided such notice, a
Holder may surrender Notes for conversion at any time from such date until the
Fundamental Change Repurchase Date corresponding to such event (or, in the case
of a Make-Whole Fundamental Change that is not a Fundamental Change, on the
35th
Business Day immediately following the Effective Date of such Make-Whole
Fundamental Change) .

      


      (v)
Holders will also have the right to convert their Notes if the Company is a
party to a combination, merger, recapitalization, reclassification, binding
share exchange or other similar transaction or sale or conveyance of all or
substantially all of the property and assets of the Company, in each case
pursuant to which the Common Stock would be converted into cash, securities
and/or other property, that does not also constitute a Fundamental Change or a
Make-Whole Fundamental Change. In such event, Holders will have the right to
convert their Notes at any time beginning on the earlier of (i) the date on
which the

      


      
        
          
          

        

        
          18

          
            

          

        

        
          
          

        

      

      


      Company notifies Holders of such transaction and (ii) the effective
date of such transaction and ending on the 35th
Business Day following the effective date of such transaction. The Company will
use commercially reasonable efforts to notify Holders and the Trustee at least
30 Scheduled Trading Days prior to the anticipated effective date of any such
transaction described in this clause (v), and in any event will give such notice
no later than the actual effective date of any such
transaction.

      


      SECTION
4.02. Conversion
Procedures. (a) Each Note shall be convertible at the office of the
Conversion Agent and, if applicable, in accordance with the procedures of the
Depositary.

      


      (b) In
order to exercise the conversion privilege with respect to any interest in a
Global Note, the Holder must complete the appropriate instruction form for
conversion pursuant to the Depositary’s book-entry conversion program, and pay
the funds, if any, required by Section 4.02(f) and all taxes or duties if
required pursuant to Section 4.08, and the Conversion Agent must be informed of
the conversion in accordance with the customary practice of the Depositary. In
order to exercise the conversion privilege with respect to any Physical Notes,
the Holder of any such Notes to be converted, in whole or in part,
shall:

      


      (i) complete
and manually sign the conversion notice provided on the back of the Note (the
“Conversion Notice”) or
a facsimile of the Conversion Notice;

      


      (ii) deliver
the Conversion Notice, which is irrevocable, and the Note to the Conversion
Agent;

      


      
        (iii) if
required, furnish appropriate endorsements and transfer documents,

      

      


      
        (iv)
if
required, pay all transfer or similar taxes as set forth in Section
4.08; and

      

      


      
        (v) if
required, make any payment required under Section 4.02(f).

      

      


      The
Trustee (and if different, the relevant Conversion Agent) shall notify the
Company of any conversion pursuant to this Article 4 on the date of such
conversion.

      


      The date
on which the Holder satisfies all of the applicable requirements set forth above
is the “Conversion
Date.” Each conversion shall be deemed to have been effected as to any
such Notes (or portion thereof) surrendered for conversion on the relevant
Conversion Date. A converting Holder of Notes will be treated as the record
holder of any shares of Common Stock due upon such conversion as of the close of
business on (x) the relevant Conversion Date, if the Conversion Obligation in
respect of the relevant Notes is settled pursuant to Section 4.03(c)(i), or (y)
the last VWAP Trading Day of the applicable Observation Period if the Conversion
Obligation in respect of the relevant Notes is settled pursuant to Section
4.03(c)(iii) (including, for the avoidance of doubt, in connection with any
election described in Section 4.03(a)(i)). Notwithstanding the foregoing, in no
event shall a Holder be entitled to the benefit of a Conversion Rate adjustment
pursuant to Section 4.04 in respect of Notes surrendered for conversion if, by
virtue of being deemed the record holder of the shares of Common
Stock

      


      
        
          
          

        

        
          19

          
            

          

        

        
          
          

        

      

      


      issuable upon such conversion pursuant to the foregoing sentence,
such Holder participates, as a result of being such holder of record, in the
transaction or event that would otherwise give rise to such Conversion Rate
adjustment to the same extent and in the same manner as holders of shares of
Common Stock generally. Upon conversion of Notes, such Person shall no longer be
a Noteholder.

      


      (c) Each
Conversion Notice shall state the name or names (with address or addresses) in
which any certificate or certificates for shares of Common Stock which shall be
issuable on such conversion shall be issued. All such Notes surrendered for
conversion shall, unless the shares issuable on conversion are to be issued in
the same name as the registration of such Notes, be duly endorsed by, or be
accompanied by instruments of transfer in form satisfactory to the Company duly
executed by, the Holder or his duly authorized attorney.

      


      (d) In
case any Notes of a denomination greater than $1,000 shall be surrendered for
partial conversion, the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of the Notes so surrendered, without charge, new Notes
in authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Notes.

      


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

      


      (f) Upon
the conversion of any Notes, the Holder will not be entitled to receive any
separate cash payment for accrued and unpaid interest, if any, except to the
extent specified below. The Company’s delivery to the Holder of Common Stock
together with any cash payment for any fractional share of Common Stock, into
which a Note is convertible will be deemed to satisfy in full the Company’s
obligation to pay the principal amount of the Notes so converted and accrued and
unpaid interest, if any, to, but not including, the Conversion Date. As a
result, accrued and unpaid interest, if any, to, but not including, the
Conversion Date will be deemed to be paid in full rather than cancelled,
extinguished or forfeited.

      


      Notwithstanding
the foregoing, if Notes are converted after the close of business on a Regular
Record Date for the payment of interest, Holders of such Notes at the close of
business on such Regular Record Date will receive the 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 Regular Record Date to the open of business on the immediately
following Interest Payment Date must be accompanied by funds equal to the amount
of interest, if any, payable on the Notes so converted on such following
Interest Payment Date; provided that no such payment
need be made (i) for conversions following the Regular Record Date immediately
preceding the Stated Maturity, (ii) if the Company has specified a Fundamental
Change Repurchase Date that is after a Regular Record Date and on or prior to
the corresponding Interest Payment Date, or (iii) to the extent of any overdue
or defaulted interest, if any overdue or defaulted interest exists at the time
of conversion with respect to such Note.

      


      
        
          
          

        

        
          20

          
            

          

        

        
          
          

        

      

      


      (g)
Notwithstanding the foregoing, a Note in respect of which a Holder has delivered
a Fundamental Change Repurchase Notice exercising such Holder’s option to
require the Company to repurchase such Note may be converted only if such notice
of exercise is withdrawn in accordance with Section 3.03 hereof prior to the
close of business on the Business Day prior to the relevant Fundamental Change
Repurchase Date.

      


      SECTION
4.03. Settlement Upon
Conversion. (a) (i) At any time on or prior to the 60th Scheduled Trading
Day immediately preceding the Stated Maturity, the Company may make a one-time
irrevocable election to settle all conversions of the Notes from the date of
such notice pursuant to clause (iii) of Section 4.03(c) (the “Net Share Settlement
Election”). Upon making the Net Share Settlement Election, the Company
will promptly issue a press release and post such information on its website, or
otherwise publicly disclose such information, and will provide a written notice
to the Noteholders and the Trustee in the manner contemplated by this Indenture,
including through the facilities of the Depositary.

      


      (ii) The
Company may irrevocably renounce the right to make the Net Share Settlement
Election by notice to the Trustee at any time prior to the earlier of (A) the
60th Scheduled Trading Day preceding the Stated Maturity and (B) the Company’s
exercise of such right to the Net Share Settlement Election. Upon such
renunciation, the Company shall no longer have the right to the Net Share
Settlement Election with respect to the Notes, and any such attempted election
shall have no effect.

      


      (b) (i)
Unless the Company has made the Net Share Settlement Election as set forth above
in Section 4.03(a)(i), the Company may elect to settle Notes surrendered for
conversion pursuant to clause (i), (ii) or (iii) (in the case of clause (iii),
subject to any renunciation of the Net Share Settlement Election pursuant to
Section 4.03(a)(ii)) of Section 4.03(c) by providing notice (a “Consideration Notice”) to the
converting Noteholders through the Trustee of the applicable settlement method
no later than the second Scheduled Trading Day immediately following the related
Conversion Date. If the Company has made the irrevocable Net Share Settlement
Election, the Company may only settle the conversion of the applicable Notes
pursuant to clause (iii) of Section 4.03(c). If the Company does not provide a
Consideration Notice in respect of a conversion and has not previously made the
Net Share Settlement Election, conversion of the applicable Notes will be
settled pursuant to clause (iii) of Section 4.03(c) (unless the Company has not
previously renounced the Net Share Settlement Election pursuant to Section
4.02(a)(ii), in which case conversion of the applicable Notes will be settled
pursuant to clause (i) of Section 4.03).

      


      (ii)
Prior to the 60th Scheduled Trading Day preceding the Stated Maturity, if the
Company has not made the Net Share Settlement Election, the Company may deliver
a one- time Consideration Notice to the Noteholders, the Trustee, the Conversion
Agent and the Paying Agent designating the settlement method for all conversions
that occur on or after the 60th Scheduled Trading Day preceding such Stated
Maturity. For conversions that occur on or after the 60th Scheduled Trading Day
preceding the Stated Maturity, if the Company has not delivered such one-time
Consideration Notice referred to in this Section 4.03(b)(ii) and has not made an
irrevocable Net Share Settlement Election, conversion of the Notes will be
settled in accordance with clause (iii) of Section 4.03(c) (unless the Company
has not previously renounced the Net

      


      
        
          
          

        

        
          21

          
            

          

        

        
          
          

        

      

      


      Share Settlement Election pursuant to Section 4.02(a)(ii), in which
case conversion of the applicable Notes will be settled pursuant to clause (i)
of Section 4.03).

      


      (iii) The
Company will settle all conversions by Holders of Notes converting on the same
Trading Day in the same manner. Except for all conversions that occur on or
after the 60th Scheduled Trading Day preceding the Stated Maturity, the Company
will have no obligation to settle any Notes surrendered for conversion on
different Trading Days in the same manner.

      


      (c)
Subject to this Section 4.03, upon any conversion of any Note, the Company shall
deliver to converting Noteholders,

      


      (i) on
the third Business Day immediately following the relevant Conversion Date, a
number of shares of Common Stock obtained by dividing the aggregate principal
amount of Notes to be converted by $1,000, and multiplying that quotient by the
applicable Conversion Rate on the relevant Conversion Date, provided, however, that with respect to
conversions that occur on or after the Regular Record Date occurring on June 1,
2014, the Company will deliver such shares of Common Stock on the Stated
Maturity;

      


      (ii) on
the third Business Day immediately following the last Trading Day of the related
Observation Period, for each $1,000 in principal amount of Notes surrendered for
conversion, cash in an amount equal to the sum of the Daily Conversion Values
for each of the 25 VWAP Trading Days during the related Observation Period;
or

      


      (iii) on
the third Scheduled Trading Day immediately following the last Trading Day of
the related Observation Period, for each $1,000 in principal amount of Notes
surrendered for conversion, cash and shares of Common Stock, if any, equal to
the sum of the Daily Settlement Amounts for each of the 25 VWAP Trading Days
during the related Observation Period, in each case, if applicable, subject to
Section 4.03(d). The Company will pay cash equal to the sum of the Principal
Portions for each VWAP Trading Day during the related Observation Period. In
addition, if the Daily Conversion Value exceeds the Principal Portion of the
Notes converted on the related VWAP Trading Day during the applicable
Observation Period, the Company will also deliver shares of Common Stock with a
value equal to the excess of the Daily Conversion Value over the Principal
Portion on that VWAP Trading Day.

      


      (d) For
each Note surrendered for conversion and converted pursuant to clause (iii) of
Section 4.03(c), 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 Observation Period and any fractional shares remaining after
such computation, and any factional shares remaining after any conversion
pursuant to clause (i) of Section 4.03(c) shall, in each case, 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

      


      
        
          
          

        

        
          22

          
            

          

        

        
          
          

        

      

      


      fractional shares by multiplying the Daily VWAP of a full share of
Common Stock on (x) the last VWAP Trading Day of the related Observation Period
in the case of conversions pursuant to clause (iii) of Section 4.03(c) or (y)
the Conversion Date (or, if the Conversion Date is not a Trading Day, the next
following Trading Day), in the case of conversions pursuant to clause (i) of
Section 4.03(c), in each case, by the fractional amount and rounding the product
to the nearest whole cent. The Company shall determine the number of fractional
shares for which cash shall be delivered by aggregating (x) all Notes a holder
surrenders for conversion and (y) fractional shares included in the Daily
Settlement Amounts over the entire related Observation Period in the case of any
conversion pursuant to clause (iii) of Section 4.03(c) rather than delivering
cash in lieu of fractional shares for (A) each individual Note of such Holder
surrendered for conversion or (B) each day of the related Observation
Period.

      


      SECTION
4.04. Adjustment of
Conversion Rate. The Conversion Rate shall be adjusted from time to time
by the Company if any of the following events occurs, except that the Company
will not make any adjustment to the Conversion Rate if Holders of Notes
participate, as a result of holding the Notes, in any of the transactions
described under Section 4.04(a) (but only with respect to stock dividends or
distributions), Section 4.04(b), Section 4.04(c), and Section 4.04(d), at the
same time as holders of the Common Stock participate, without having to convert
their Notes, as if such Holders held the full number of shares of Common Stock
underlying such Holders’ Notes.

      


      (a) If
the Company, at any time or from time to time while any of the Notes are
outstanding, exclusively issues shares of its Common Stock as a dividend or
distribution on shares of Common Stock, or if the Company effects a share split
or share combination, then the Conversion Rate will be adjusted based on the
following formula:

      


      
      

      


      where,

      


      
        CR0 = 
the Conversion Rate in effect immediately prior to the open of business on the
Ex-Date of such dividend or distribution, or immediately prior to the open of
business on the effective date of such share split or share combination, as
applicable;

      

      


      
        CR1=  
the Conversion Rate in effect immediately after the open of business on such Ex-
Date or immediately after the open of business on such effective
date;

      

      


      
        OS0
=  the number of shares of Common Stock outstanding immediately prior
to the open of business on such Ex-Date or immediately prior to the open of
business on such effective date; and

      

      


      
        OS1 = 
the number of shares of Common Stock outstanding immediately after giving effect
to such dividend, distribution, share split or share
combination.

      

      


      Any
adjustment made under this Section 4.04(a) shall become effective immediately
after the open of business on the Ex-Date for such dividend or distribution or
immediately after the open

      


      
        
          
          

        

        
          23

          
            

          

        

        
          
          

        

      

      


      of business on the effective date for such share split or share
combination. If any dividend or distribution of the type described in this
Section 4.04(a) is declared but not so paid or made, or any share split or
combination of the type described in this Section 4.04(a) is announced but the
outstanding shares of the 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 not to split or combine the outstanding shares of the 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 issues to all or substantially all holders of the Common Stock any
rights, options or warrants entitling them for a period of not more than 60
calendar days after the date of such issuance to subscribe for or purchase
shares of the Common Stock at a price per share less than the average of the
Last Reported Sale Prices of Common Stock for the 10 consecutive Trading Day
period ending on the Trading Day immediately preceding the Ex- Date for such
issuance, the Conversion Rate shall be adjusted based on the following
formula:

      



      where,

      


      CR0 = 
the Conversion Rate in effect immediately prior to the open of business on the
Ex-Date for such
issuance;

      


      CR1
=  the Conversion Rate in effect immediately after the open of
business on such Ex-Date;

      


      OS0
=  the number of shares of Common Stock outstanding immediately prior
to the open of business
on such Ex-Date;

      


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

      

      


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

      

      


      Any
adjustment made under this Section 4.04(b) will be made successively whenever
any such rights, options or warrants are issued and shall become effective
immediately after the open of business on the Ex-Date for such issuance. To the
extent such shares of Common Stock are not delivered after the expiration of
such rights, options or warrants, the Conversion Rate shall be readjusted to the
Conversion Rate which would then be in effect had the adjustments made upon the
issuance of such rights, options or warrants been made on the basis of the
delivery of only the number of shares of Common Stock actually delivered. In the
event that such rights, options or warrants are not so issued, the Conversion
Rate shall again be adjusted to be the Conversion Rate which would then be in
effect if the record date for such issuance had not occurred.

      


      
        
          
          

        

        
          24

          
            

          

        

        
          
          

        

      

      


      For the
purposes of this Section 4.04(b), in determining whether any rights, options or
warrants entitle the holders to subscribe for or purchase shares of Common Stock
at less than the average of the Last Reported Sale Prices of Common Stock for
the 10 consecutive Trading Day period ending on the Trading Day immediately
preceding the Ex-Date of such issuance, and in determining the aggregate
offering price of such shares of Common Stock, there shall be taken into account
any consideration received by the Company for such rights, options or warrants
and any amount payable on the exercise or conversion thereof, with the value of
such consideration, if other than cash, as shall be determined by the Board of
Directors.

      


      (c) If
the Company distributes shares of capital stock of the Company, evidences of its
indebtedness, other assets or property of the Company or rights, options or
warrants to acquire the Company’s capital stock or other securities to all or
substantially all holders of its Common Stock, excluding:

      


      (i)
dividends or distributions and rights, options or warrants as to which Section
4.04(a) or Section 4.04(b) is applicable;

      


      
        (ii) dividends
or distributions paid exclusively in cash; and

      

      


      
        (iii)  Spin-Offs
to which the provisions set forth below in this Section
4.04(c) shall apply;

      

      


      then the
Conversion Rate shall be adjusted based on the following
formula:


      
        


      

       

      
        where,

         

        
          CR0
=      the Conversion Rate in effect immediately
prior to the open of business on the Ex-Date for such
distribution;

        

         

        
          CR1
=      the Conversion Rate in effect immediately
after the open of business on such Ex-Date;

        

         

        
          SP0
=       the average of the Last Reported
Sale Prices of the Common Stock over the 10 consecutive Trading Day period
ending on the Trading Day immediately preceding the Ex-Date for such
distribution; and

        

         

        
          FMV
=    the fair
market value (as determined by the Board of Directors) of the shares of capital
stock, evidences of indebtedness, assets, property, rights, options or warrants
distributed with respect to each outstanding share of the Common Stock on the
Ex-Date for such distribution.

        

         

      

      If “FMV” (as defined above) is equal to
or greater than “SP0” (as defined above), in lieu of the
foregoing adjustment, each Holder of Notes shall receive, for each $1,000
principal amount of Notes, at the same time and upon the same terms as holders
of the Common Stock, the amount and kind of capital stock of the Company,
evidences of its indebtedness, other assets or property

      


      
        
          
          

        

        
          25

          
            

          

        

        
          
          

        

      

      


      of the Company or rights, options or warrants to acquire the
Company’s capital stock or other securities that such Holder would have received
as if such Holder owned a number of shares of Common Stock equal to the
Conversion Rate in effect on the Ex-Date for the distribution. Any adjustment
made under the portion of this Section 4.04(c) above will become effective
immediately after the open of business on the Ex-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 been declared.

      


      With
respect to an adjustment pursuant to this Section 4.04(c) where there has been a
payment of a dividend or other distribution on the Common Stock of shares of
capital stock of any class or series, or similar equity interest, of or relating
to a Subsidiary or other business unit and such shares of capital stock or
similar equity interests are listed for trading on a securities exchange (a
“Spin-Off”), the
Conversion Rate shall be increased based on the following
formula:


      
        


      

      


      where,

      


      
        CR0
=     the Conversion Rate in effect immediately prior to the
close of business on the last Trading Day of the Valuation Period (as defined
below);

      

      


      
        CR1
=     the Conversion Rate in effect immediately after the
close of business on the last Trading Day of the Valuation
Period;

      

      


      
        FMV0 = 
the average of the Last Reported Sale Prices of the capital stock or similar
equity interest distributed to holders of Common Stock applicable to one share
of Common Stock (determined for purposes of the definition of Last Reported Sale
Price as if such capital stock or similar equity interest were the Common Stock)
over the first ten consecutive Trading Day period after, and including, the
Ex-Date of the Spin-Off (the “Valuation Period”);
and

      

      


      
        MP0
=     the average of the Last Reported Sale Prices of Common
Stock over the Valuation Period.

      

      


      The
adjustment to the Conversion Rate under the preceding paragraph will occur at
the close of business on the last Trading Day of the Valuation Period, but will
be given effect as of the open of business on the Ex-Date for the Spin-Off. The
Company will delay the settlement of conversion of any Notes if the final VWAP
Trading Day of the related Observation Period (or, if the Company has elected to
settle the relevant conversion by delivering solely shares of Common Stock, the
Conversion Date) occurs during the Valuation Period. In such event, the Company
will deliver the shares of Common Stock, or pay and deliver, as applicable, the
sum of the Daily Settlement Amounts for the relevant Observation Period, as
applicable (based on the adjusted Conversion Rate) on the third Business Day
immediately following the last Trading Day of the Valuation Period (or the
Conversion Date, as applicable).

      


      
        
          
          

        

        
          26

          
            

          

        

        
          
          

        

      

       

      For the purposes of this Section 4.04(c) (and subject in all
respects to Section 4.11), rights, options or warrants distributed by the
Company to all holders of its Common Stock entitling them to subscribe for or
purchase shares of the Company’s capital stock (either initially or under
certain circumstances), which rights, options or warrants, until the occurrence
of a specified event or events (a “Trigger Event”): (1) are
deemed to be transferred with such shares of Common Stock; (2) are not
exercisable; and (3) are also issued in respect of future issuances of Common
Stock, shall be deemed not to have been distributed for purposes of this Section
4.04(c), (and no adjustment to the Conversion Rate under this Section 4.04(c)
will be required) until the occurrence of the earliest Trigger Event, whereupon
such rights, options 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 4.04(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
securities, evidences of indebtedness or other assets, then the date of the
occurrence of any and each such event shall be deemed to be the date of
distribution and Ex-Date of such deemed distribution (in which case the original
rights, options or warrants shall be deemed to terminate and expire on such date
without exercise by any of the holders). 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 4.04(c)
was made, (1) in the case of any such rights, options or warrants which shall
all have been redeemed or purchased without exercise by any Holders thereof,
upon such final redemption or repurchase (x) the Conversion Rate shall be
readjusted as if such rights, options or warrants had not been issued and (y)
the Conversion Rate shall then again be readjusted to give effect to such
distribution, deemed distribution or Trigger Event, as the case may be, as
though it were a cash distribution, equal to the per share redemption or
purchase price received by holders of Common Stock with respect to such rights,
options or warrants made to all holders of Common Stock as of the date of such
redemption or purchase, and (2) in the case of such rights, options or warrants
which 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 the
purposes of this Section 4.04(c) and subsections (a) and (b) of this Section
4.04, any dividend or distribution to which this Section 4.04(c) applies which
also includes one or both of:

       

      (A) a
dividend or distribution of shares of Common Stock to which Section 4.04(a)
applies (the “Clause A
Distribution”), and

      


      (B) a
dividend or distribution of rights, options or warrants to which Section 4.04(b)
applies (the “Clause B
Distribution”),

      


      then (1)
such dividend or distribution, other than the Clause A Distribution and the
Clause B Distribution, shall be deemed to be a dividend or distribution to which
this Section 4.04(c) applies (the “Clause C Distribution”) and
any Conversion Rate adjustment required by this Section 4.04(c) with respect
thereto shall then be made, and (2) the Clause A Distribution and

      


      
        
          
          

        

        
          27

          
            

          

        

        
          
          

        

      

      


      Clause B
Distribution shall be deemed to immediately follow the Clause C Distribution and
any Conversion Rate adjustment required by Section 4.04(a) and Section 4.04(b)
with respect thereto shall then be made, except that, if determined by the
Company, (I) the “Ex-Date” of the Clause A Distribution and the Clause B
Distribution shall be deemed to be the Ex-Date of the Clause C Distribution and
(II) any shares of Common Stock included in the Clause A Distribution or Clause
B Distribution shall be deemed not to be “outstanding immediately prior to the
open of business on such Ex-Date or such effective date” within the meaning of
Section 4.04(a) or “outstanding immediately prior to the open of business on
such Ex-Date” within the meaning of Section 4.04(b).

      


      (d) If
the Company pays any cash dividends or distributions to all or substantially all
holders of Common Stock, the Conversion Rate shall be adjusted based on the
following formula:

      


      


      
        where,

         

        
          CR0 = the
Conversion Rate in effect immediately prior to the open of business on the
Ex-Date for such dividend or distribution;

        

         

        
          CR1 = the
Conversion Rate in effect immediately after the open of business on the Ex-Date
for such dividend or distribution;

        

         

        
          SP0 = 
the Last Reported Sale Price of the Common Stock on the Trading Day immediately
preceding the Ex-Date for such dividend or distribution; and

           

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

        

         

      

      If “C”
(as defined above) is equal to or greater than “SP0” (as
defined above), in lieu of the foregoing adjustment, each Holder of a Note shall
receive, for each $1,000 principal amount of Notes, at the same time and upon
the same terms as holders of shares of Common Stock, the amount of cash that
such holder would have received as if such holder owned a number of shares of
Common Stock equal to the Conversion Rate on the Ex-Date for such cash dividend
or distribution. Such adjustment shall become effective immediately after the
open of business on the Ex-Date for such dividend or distribution. If such
dividend or distribution is not so paid, 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.

      


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

      


      
        
          
          

        

        
          28

          
            

          

        

        
          
          

        

      

       

      
        

      

      


      where,

      


      
        CR0 = 
the Conversion Rate in effect immediately prior to the close of business on the
Trading Day next succeeding the date such tender or exchange offer
expires;

      

      


      
        CR1 = 
the Conversion Rate in effect immediately after the close of business on the
Trading Day next succeeding the date such tender or exchange offer
expires;

      

      


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

      

      


      
        OS0 = 
the number of shares of Common Stock outstanding immediately prior to the date
such tender or exchange offer expires (prior to giving effect to the purchase of
shares pursuant to such tender or exchange offer);

      

      


      
        OS1 = 
the number of shares of Common Stock outstanding immediately after the date such
tender or exchange offer expires (after giving effect to the purchase of all
shares accepted for purchase or exchange in such tender or exchange offer);
and

      

      


      
        SP1 = 
the Last Reported Sale Prices of the Common Stock on the Trading Day next
succeeding the date such tender or exchange offer expires.

      

      


      The
adjustment to the Conversion Rate under this Section 4.04(e) shall occur as of
the close of business on the Trading Day next succeeding the date such tender or
exchange offer expires.

      


      (f)
Notwithstanding the foregoing Sections 4.04(a) through (e), if a Conversion Rate
adjustment becomes effective on any Ex-Date as described above, and a Holder
that has converted its Notes would be treated as the record holder of shares of
Common Stock as of the related Conversion Date pursuant to Section 4.02(b) based
on the adjusted Conversion Rate for such Ex-Date, then, the Conversion Rate
adjustment relating to such Ex-Date will not be made for such converting Holder.
Instead, such Holder will be deemed to be the holder of record of shares of
Common Stock on an un-adjusted basis and participate in the related dividend,
distribution or other event giving rise to such adjustment.

      


      (g) The
Company from time to time may increase the Conversion Rate by any amount for a
period of at least 20 Business Days, so long as the Board of Directors shall
have made a determination that such increase would be in the best interests of
the Company, which determination shall be conclusive. Whenever the Conversion
Rate is increased pursuant to this Section 4.04(g), the Company shall mail to
Holders of record of the Notes a notice of the increase at least one day 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 may (but shall not be required to) increase the Conversion Rate, in
addition to any adjustments pursuant to Section 4.04(a), 4.04(b), 4.04(c),
4.04(d) or

      


      
        
          
          

        

        
          29

          
            

          

        

        
          
          

        

      

      


      4.04(e),
if the Board of Directors considers such increase to be advisable to avoid or
diminish any income tax to holders of Common Stock or rights to purchase shares
of Common Stock in connection with a dividend or distribution of shares (or
rights to acquire shares) or similar event.

      


      (i) All
calculations under this Article 4 shall be made by the Company and shall be made
to the nearest cent (including, in the case of any adjustment to the Conversion
Rate, the resulting adjustment to the Conversion Price) or to the nearest one
ten-thousandth of a share. No adjustment shall be required to be made for the
Company’s issuance of Common Stock or any securities convertible into or
exchangeable for shares of Common Stock or rights to purchase shares of Common
Stock or such convertible or exchangeable securities, other than as provided in
this Section 4.04 and in Section 4.12 hereof.

      


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

      


      (k) For
purposes of this Section 4.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company so long
as the Company does not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company, but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares
of Common Stock.

      


      (l)
Notwithstanding the foregoing, if the application of the foregoing formulas set
forth in this Section 4.04 would result in a decrease in the Conversion Rate, no
adjustment to the Conversion Rate shall be made (other than as a result of a
reverse split or a share combination).

      


      (m)
Notwithstanding anything to the contrary in this Article 4, no adjustment to the
Conversion Rate shall be made:

      


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

      


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

      


      
        
          
          

        

        
          30

          
            

          

        

        
          
          

        

      

       

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

      


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

      

      


      
        (v)  for
accrued and unpaid interest on the Notes.

      

      


      (n) 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 will 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%, upon any Conversion Date
with respect to the Notes.

      


      SECTION
4.05. Certain Other
Adjustments. To the extent not otherwise covered by Section 4.04,
whenever a provision of this Supplemental Indenture requires the calculation of
Last Reported Sale Prices or Daily VWAPs over a span of multiple days, the Board
of Directors will make appropriate adjustments to such Last Reported Sale
Prices, such Daily VWAPs and the Conversion Rate or the number of shares of
Common Stock due upon conversion 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-Date of the event occurs, at any time during the
period from which such Last Reported Sale Prices or such Daily VWAPs are to be
calculated. In addition, the Board of Directors will make appropriate
adjustments to the Conversion Rate where a Conversion Date occurs on or after an
Ex-Date relating to any event requiring an adjustment to the Conversion Rate and
on or prior to the record date relating to such Ex-Date. Any such adjustment in
accordance with the provisions of this Section 4.05 shall be determined in good
faith by the Board of Directors in order to give effect to the intent of Section
4.04 and the other provisions of this Article 4 and to avoid unjust or
inequitable results.

      


      SECTION
4.06. Adjustments Upon
Certain Fundamental Changes. (a) If a Make-Whole Fundamental Change
occurs and a Holder elects to convert its Notes in connection with such
Make-Whole Fundamental Change, the Company shall, under certain circumstances,
increase the Conversion Rate for the Notes so surrendered for conversion by a
number of additional shares of Common Stock (the “Additional Shares”) as
described below. A conversion of Notes shall be deemed for these purposes to be
“in connection with” such Make-Whole Fundamental Change if such conversion
occurs on or after the Effective Date (as defined below) of the Make-Whole
Fundamental Change and prior to the close of business on the Business Day
immediately preceding the related Fundamental Change Repurchase Date (or, in the
case of a Make-Whole Fundamental Change that is not a Fundamental Change, on the
35th
Business Day immediately following the Effective Date of such Make-Whole
Fundamental Change).

      


      (b) The
number of Additional Shares, if any, by which the Conversion Rate in the event
of a Make-Whole Fundamental Change will be increased will be determined by
reference to the table attached as Schedule A hereto,
based on the date on which the Make- Whole Fundamental Change occurs or becomes
effective (the “Effective
Date”) and the price (the “Stock Price”) paid (or deemed
paid) per share of the Common Stock in the Make-Whole

      


      
        
          
          

        

        
          31

          
            

          

        

        
          
          

        

      

      


      Fundamental Change. If the holders of the Common Stock receive only
cash in a Make-Whole Fundamental Change described in clause (2) of the
definition of Fundamental Change, the Stock Price shall be the cash amount paid
per share. Otherwise, the Stock Price shall be the average of the Last Reported
Sale Prices of the Common Stock over the ten Trading Day period ending on, and
including, the Trading Day immediately preceding the Effective Date of such
Make-Whole Fundamental Change.

      


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

      


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

      


      (ii) If
the Stock Price is greater than $75.00 per share (subject to adjustment in the
same manner as the Stock Prices set forth in the column headings of the table in
Schedule A
pursuant to subsection (c) below), no Additional Shares shall be added to the
Conversion Rate.

      


      (iii) If
the Stock Price is less than $9.00 per share (subject to adjustments in the same
manner as the Stock Prices set forth in the column headings of the table in
Schedule A
pursuant to subsection (c) below), no Additional Shares shall be added to the
Conversion Rate.

      


      Notwithstanding
the foregoing, in no event shall the Conversion Rate exceed 111.1111 shares of
Common Stock per $1,000 principal amount of Notes, subject to adjustments in the
same manner, and at the same time, as the Conversion Rate as set forth in
Section 4.04.

      


      (c) The
Stock Prices set forth in the column headings of the table in Schedule A hereto
shall be adjusted as of any date on which the Conversion Rate of the Notes
is otherwise
adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable
immediately prior to such adjustment, multiplied by a fraction, the numerator of
which is the Conversion Rate immediately prior to such adjustment giving rise to
the Stock Price adjustment and the denominator of which is the Conversion Rate
as so adjusted. The number of Additional Shares set forth in such table shall be
adjusted in the same manner, and at the same time, as the Conversion Rate as set
forth in Section 4.04.

      


      (d) The
Company shall notify the Holders of Notes and the Trustee of the Effective Date
of any Make-Whole Fundamental Change and issue a press release on such
date.

      


      (e) The
Company will settle conversions of Notes converted in connection with a
Make-Whole Fundamental Change as provided in Section 4.03(c); provided, however, that in connection
with a Make-Whole Fundamental Change described in clause (2) of the definition
of Fundamental Change in which holders of Common Stock receive only cash for
their shares of Common Stock, the Company shall settle conversions in connection
with such Make- Whole Fundamental Change by delivering, on the third Business
Day after the Conversion Date,

      


      
        
          
          

        

        
          32

          
            

          

        

        
          
          

        

      

      


      for each $1,000 principal amount of Notes, an amount of cash equal
to (i) the applicable Conversion Rate on the Conversion Date, increased by
Additional Shares, if any, calculated as set forth in this Section 4.06, multiplied by (ii) the
per-share amount of cash consideration paid in such Make-Whole Fundamental
Change.

      


      SECTION
4.07. Effect of
Recapitalization, Reclassification, Consolidation, Merger or
Sale.

      


      (a) If any of the following events
occur:

      


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

      


      
        (ii)  a
consolidation, merger or combination involving the Company;
or

      

      


      
        (iii)  a sale,
lease or other transfer to a third party of all or substantially all of
the consolidated assets of the Company and its Subsidiaries;
or

      

      


      (iv)      any
statutory share exchange;

      


      in each
case as a result of which the Common Stock would be converted into, or exchanged
for, stock, other securities, other property or assets (including cash or any
combination thereof) (any such event, a “Merger Event”),
then:

      


      (b) the
Company or the successor or purchasing Person, as the case may be, shall execute
with the Trustee a supplemental indenture (which shall comply with the Trust
Indenture Act as in force at the date of execution of such supplemental
indenture if such supplemental indenture is then required to so comply)
providing for the conversion and settlement of the Notes as set forth in this
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 4. 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, 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 shall reasonably
consider necessary by reason of the foregoing, including to the extent required
by the Board of Directors and practicable the provisions providing for the
repurchase rights set forth in Article 3 herein.

      


      In the
event the Company shall execute a supplemental indenture pursuant to this
Section 4.07, the Company shall promptly file with the Trustee an Officers’
Certificate briefly stating the reasons therefore, the kind or amount of cash,
securities or property or asset that will comprise the Reference Property after
any such Merger Event, any adjustment to be made with respect thereto and that
all conditions precedent have been complied with, and shall promptly mail notice
thereof to all Noteholders. The Company shall cause notice of the execution of
such supplemental indenture to be mailed to each Noteholder, at its address
appearing on the Security

      


      
        
          
          

        

        
          33

          
            

          

        

        
          
          

        

      

       

      
        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.

        


        (c)
Subject to the provisions of Section 4.01 and Section 4.06, at the effective
time of such Merger Event, (i) the right to convert each $1,000 principal amount
of Notes will be changed to a right to convert such Note into the kind and
amount of shares of stock, other securities or other property or assets
(including cash or any combination thereof) that a holder of a number of shares
of Common Stock equal to the applicable Conversion Rate immediately prior to
such transaction would have owned or been entitled to receive (the “Reference Property”) upon such
transaction, subject to the Company’s right to elect to settle the related
Conversion Obligation pursuant to either clause (i), (ii) or (iii) of Section
4.03(c), it being understood and agreed that for purposes of Section 4.01(b),
references therein to “the Last Reported Sale Price of the Common Stock” shall
be deemed at and after the effective time of such Merger Event to be references
to “the Last Reported Sale Price 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.” The Company shall not
become a party to any Merger Event unless its terms are consistent with this
Section 4.07. None of the foregoing provisions shall affect the right of a
holder of Notes to convert its Notes as set forth in Sections 4.01 through 4.03
prior to the effective date of such Merger Event.

        


        (d) 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 in accordance
with Section 4.03 as follows:

        


        (i) If the
Company elects to settle conversions pursuant to clause (i) of Section 4.03(c),
the Company will deliver units of Reference Property in lieu of the shares of
Common Stock otherwise deliverable;

        


        
          (ii)  If the
Company elects to settle conversions pursuant to clause
(ii) of Section 4.03(c), the Company will deliver cash in an amount equal to the
sum of the Daily Conversion Values for each of the 25 VWAP Trading Days during
the related Observation Period; and

        

        


        (iii) If
the Company irrevocably elects or otherwise elects to settle conversions
pursuant to clause (iii) of Section 4.03(c), the Company will (x) pay cash in an
amount up to the aggregate Principal Portions upon any conversion and (y) in
lieu of the shares of Common Stock otherwise deliverable, a number of units of
Reference Property equal to the number of shares of Common Stock that otherwise
would have been delivered (each unit of Reference Property corresponding to the
amount and type of Reference Property that a holder of one share of Common Stock
would have received in the relevant transaction).

        


        (iv) For
purposes of this Section 4.07, the “Weighted Average Consideration” shall be deemed
to be the weighted average of the types and

        


        


        
          
            
            

          

          
            34

            
              

            

          

          
            
            

          

        

         

        amounts of consideration received by the holders of Common Stock
that affirmatively make such an election.

        


        (v) The
Company shall notify the holders of the Weighted Average Consideration as soon
as practicable after the Weighted Average Consideration is
determined.

        


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

        


        SECTION
4.08. Taxes on Shares
Issued. The Company will pay any documentary, stamp or similar issue or
transfer tax due on the issue or delivery of shares of Common Stock on
conversion of Notes pursuant hereto; provided, however, that if
such documentary, stamp or similar issue or transfer tax is due because the
Holder of such Notes has requested that shares of Common Stock be issued in a
name other than that of the Holder of the Notes converted, then such taxes will
be paid by the Holder, and the Company shall not be required to issue or deliver
any stock certificate evidencing such shares unless and until the Holder shall
have paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.

        


        SECTION
4.09. Reservation of
Shares; Shares to be Fully Paid; Compliance With Governmental
Requirements; Listing of Common Stock. The Company shall reserve,
out of its
authorized but unissued shares or shares held in treasury, sufficient shares of
Common Stock to satisfy conversion of the Notes from time to time as such Notes
are presented for conversion (assuming that, at the time of the computation of
such number of shares or securities, all such Notes would be converted by a
single Holder).

        


        The
Company covenants that all shares of Common Stock that may be issued upon
conversion of Notes shall be newly issued shares or treasury shares, shall be
duly authorized, validly issued, fully paid and non-assessable and shall be free
from preemptive rights and free from any tax, lien or charge (other than those
created by the Holder).

        


        The
Company shall list or cause to have quoted any shares of Common Stock to be
issued upon conversion of Notes on each national securities exchange or
over-the-counter or other domestic market on which the Common Stock is then
listed or quoted.

        


        SECTION
4.10. Responsibility
of Trustee. The Trustee and any Conversion Agent shall not at any time be
under any duty or responsibility to any Holder of Notes to determine or
calculate the Conversion Rate, to determine whether any facts exist which may
require any adjustment of the Conversion Rate, or to confirm the accuracy of any
such adjustment when made or the appropriateness of the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same. The Trustee and any other Conversion Agent shall not be accountable with
respect to the validity or value (or the kind or amount) of any shares of Common
Stock or of any other securities or property that may at any time be issued or
delivered upon the conversion of any Notes; and the Trustee and the 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

        


        
          
            
            

          

          
            35

            
              

            

          

          
            
            

          

        

        


        deliver any shares of Common Stock or stock certificates or other
securities or property or cash upon the surrender of any Notes for the purpose
of conversion or to comply with any of the duties, responsibilities or covenants
of the Company contained in this Article 4. 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
4.11.    Notice to Holders 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
4.04; or

        


        (b) the
Company shall authorize the granting to the holders of all or substantially all
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 that would
require an adjustment in the Conversion Rate pursuant to Section 4.04 or Section
4.12 hereof; or

        


        (c) of any
reclassification or reorganization 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, lease or transfer of all or substantially all of the assets of the Company
and its consolidated Subsidiaries; or

        


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

        


        then, in
each case (unless notice of such event is otherwise required pursuant to another
provision of this Supplemental Indenture), the Company shall cause to be filed
with the Trustee and the Conversion Agent and to be mailed to each Holder of
Notes at such Holder’s address appearing on a list of Holders of Notes, which
the Company shall provide to the Trustee, as promptly as practicable but in any
event at least 5 days prior to the applicable date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the purpose of
such dividend (or any other 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, options or
warrants are to be determined, or (y) the date on which such reclassification,
reorganization, consolidation, merger, sale, lease, 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, reorganization, 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 (or any other distribution), reclassification, reorganization,
consolidation, merger, sale, transfer, dissolution, liquidation or winding
up.

        


         

        
          
            
            

          

          
            36

            
              

            

          

          
            
            

          

        

         

        SECTION 4.12. Stockholder Rights
Plan. Each share of Common Stock issued upon conversion of Notes pursuant
to this Article 4 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 stockholder rights plan adopted by the Company, as the same may
be amended from time to time. Notwithstanding the foregoing, if and only if
prior to any conversion such rights have separated from the shares of Common
Stock in accordance with the provisions of the applicable stockholder rights
agreement, the Conversion Rate shall be adjusted at the time of separation as if
the Company had distributed to all holders of the Common Stock, shares of the
Company’s capital stock, evidences of indebtedness, assets, property, rights,
options or warrants as described in Section 4.04(c) above, subject to
readjustment in the event of the expiration, termination or redemption of such
rights.

        


        ARTICLE
5

        


        REMEDIES

        


        SECTION
5.01. Events of
Default. In addition to the Events of Default specified in Section 6.01
of the Original Indenture, each of the following events shall be an “Event of Default” wherever
used herein with respect to the Notes:

        


        (a) failure
by the Company to comply with its obligation to convert the Notes in accordance
with the Indenture upon exercise of a Holder’s conversion right in accordance
with Article 4 hereof and such failure continues for a period of five
days;

        


        (b) failure
by the Company to provide a Fundamental Change Company Notice pursuant to
Section 3.01(b) when due;

        


        
          (c)  failure
to repurchase all or any part of the Notes in accordance with Article
3;

        

        


        (d) an event
of default as defined in any mortgage, indenture or instrument under which there
may be issued, or by which there may be secured or evidenced, any of the
Company’s indebtedness or indebtedness of the Subsidiaries of the Company for
money borrowed in excess of $50 million, whether such indebtedness now exists or
shall hereafter be created, shall happen and shall result in such indebtedness
becoming or being declared due and payable prior to the date on which it would
otherwise become due and payable;

        


        (e) a final
judgment for the payment of $50 million or more (excluding any amounts covered
by insurance) rendered against the Company or any Subsidiary of the Company,
which judgment is not discharged or stayed within 60 days after (i) the date on
which the right to appeal or petition for review thereof has expired if no such
appeal or review has commenced or (ii) the date on which all rights to appeal or
petition for review have been extinguished;

        


        (f) a court
having jurisdiction in the premises shall enter a decree or order for relief in
respect of any Significant Subsidiary of the Company in an involuntary
case

        


         

        
          
            
            

          

          
            37

            
              

            

          

          
            
            

          

        

         

        under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Significant
Subsidiary or for any substantial part of its property or ordering the winding
up or liquidation of its affairs, and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or

        


        (g) any
Significant Subsidiary of the Company (i) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consents to the entry of an order for relief in an involuntary case
under any such law, (ii) consents to the appointment of or taking possession by
a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of such Significant Subsidiary or for all or substantially all of its
property and assets or (iii) effects any general assignment for the benefit of
creditors.

        


        SECTION
5.02. Additional
Interest. Notwithstanding any provisions of the Indenture to the
contrary, to the extent the Company so elects, the sole remedy for an Event of
Default relating to any obligation to file documents and reports with the
Trustee as required by Section 314(a)(1) of the Trust Indenture Act, Section
2.04 of this Supplemental Indenture, or Section 4.05 of the Original Indenture
shall for the first 180 days following the occurrence of such Event of Default
consist exclusively of the right to receive additional interest on the Notes
equal to 0.50% per annum of the principal amount of the Notes (“Additional Interest”). If the
Company so elects, such Additional Interest will be payable on all Notes
outstanding on or before the date on which such Event of Default first occurs.
In order to elect to pay Additional Interest as the sole remedy during the first
180 days after the occurrence of an Event of Default relating to any reporting
obligations as described in this Section 5.02, the Company must give notice to
Holders of record of the Notes, the Trustee and the Paying Agent of such
election on or before the close of business on the Business Day immediately
prior to the date on which such Event of Default would occur. Upon the failure
to timely give such notice or to pay such Additional Interest, the Notes will be
subject to immediate acceleration as provided in Section 6.02 of the Original
Indenture. On the 180th day after such Event of Default occurs (if such Event of
Default is not cured or waived prior to such 180th day), the Notes shall be
subject to acceleration as provided in Section 6.02 of the Original Indenture.
This Section 5.02 shall not affect the rights of Holders of Notes in the event
of the occurrence of any other Event of Default. Whenever in the 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 5.02 to the extent that, in
such context, Additional Interest is, was or would be payable in respect thereof
pursuant to the provisions of this Section 5.02, 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
5.03. Waiver of Past
Defaults. Section 6.04 of the Original Indenture is, with respect to the
Notes, hereby replaced in its entirety with the following
paragraph:

        


        


        


        
          
            
            

          

          
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        “Subject to Section 6.02 of the Original Indenture and Sections 5.04
and 7.02 of this Supplemental Indenture, the Holders of at least a majority in
Principal amount of the outstanding Notes, by notice to the Trustee, may waive
an existing Default or Event of Default with respect to the Notes and its
consequences, except a Default in the payment of Principal of or interest on the
Note as specified in clauses (a) or (b) of Section 6.01 of the Original
Indenture, with respect to the failure to deliver the consideration due upon
conversion of any Note or in respect of a covenant or provision of the Indenture
which cannot be modified or amended without the consent of the Holder of each
outstanding Note affected. Upon any such waiver, such Default shall cease to
exist, and any Event of Default with respect to the Notes arising therefrom
shall be deemed to have been cured, for every purpose of the Indenture; but no
such waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereto.”

        


        SECTION
5.04. Rights of
Holders to Receive Payment. Section 6.07 of the Original Indenture is,
with respect to the Notes, hereby replaced in its entirety with the following
paragraph:

        


        “Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note to
receive payment of the principal of or interest, if any, on such Holder’s Notes
when due, the Fundamental Change Repurchase Price, or the right to receive
payment or delivery of the consideration due upon conversion of Notes, and to
bring suit for the enforcement of any such payment on or after such respective
due dates, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.”

        


        SECTION
5.05. Notice of
Default. Section 7.05 of the Original Indenture is, with respect to the
Notes, hereby replaced in its entirety with the following
paragraph:

        


        “If any
Default with respect to the Notes occurs and is continuing and if such Default
is known to the actual knowledge of a Responsible Officer with the Corporate
Trust Department of the Trustee, the Trustee shall give to each Holder of Notes
notice of such Default within 90 days after it occurs by mail in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, unless such
Default shall have been cured or waived before the mailing of such notice; provided, however, that,
except in the case of a Default in the payment of the Principal of or interest
on any Note or a Default in the payment or delivery of the consideration due
upon conversion of any Note, the Trustee shall be protected in withholding such
notice if the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Notes.”

        


        ARTICLE
6

        


        SATISFACTION
AND DISCHARGE

        


        SECTION
6.01. Satisfaction and
Discharge of the Supplemental Indenture. When (i) the Company shall
deliver to the Registrar for cancellation all Notes theretofore authenticated
(other than any Notes that have been destroyed, lost or stolen and in lieu of or
in substitution for which other Notes shall have been authenticated and
delivered) and not

        


        


        
          
            
            

          

          
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        theretofore canceled, or (ii) all the Notes not theretofore canceled
or delivered to the Trustee for cancellation shall have become due and payable
(whether at Stated Maturity for the payment of the principal amount thereof, on
any Fundamental Change Repurchase Date or upon conversion or otherwise) and the
Company shall deposit with the Trustee, in trust, or deliver to the Holders, as
applicable, cash, shares of Common Stock or cash and shares of Common Stock (and
cash in lieu of fractional shares), if applicable, or units of Reference
Property sufficient to pay all amounts due on all of such Notes (other than any
Notes that shall have been mutilated, destroyed, lost or stolen and in lieu of
or in substitution for which other Notes shall have been authenticated and
delivered) not theretofore canceled or delivered to the Trustee for
cancellation, including principal and interest due, accompanied, except in the
event the Notes are due and payable solely in cash at the Stated Maturity of the
Notes or upon an earlier Fundamental Change Repurchase Date, by a verification
report as to the sufficiency of the deposited amount from an independent
certified accountant or other financial professional reasonably satisfactory to
the Trustee (which may include any of the Underwriters), and if the Company
shall also pay or cause to be paid all other sums payable hereunder by the
Company, then this Supplemental Indenture shall cease to be of further effect
(except as to (A) rights hereunder of Holders of the Notes to receive all
amounts owing upon the Notes and the other rights, duties and obligations of
Holders of the Notes, as beneficiaries hereof with respect to the amounts, if
any, so deposited with the Trustee and (B) the rights, obligations and
immunities of the Trustee hereunder), and the Trustee, on written demand of the
Company accompanied by an Officers’ Certificate and an Opinion of Counsel as
required by Section 10.04 of the Original Indenture and at the cost and expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Supplemental Indenture; the Company, however, hereby agrees to
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred by the Trustee, including the fees and expenses of its
counsel, and to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with this Supplemental
Indenture or the Notes.

        


        SECTION
6.02. Deposited Monies
to Be Held in Trust by Trustee. Subject to Section 6.04, all cash and/or
shares of Common Stock deposited with the Trustee pursuant to Section 6.01 shall
be held in trust for the sole benefit of the Holders of the Notes, and such cash
and/or shares of Common Stock shall be applied by the Trustee to the payment,
either directly or through any Paying Agent (including the Company if acting as
its own Paying Agent), to the Holders of the particular Notes for the payment of
all sums due and to become due thereon for principal and interest, if any, or
for the settlement of the Conversion Obligation due upon conversion
thereof.

        


        SECTION
6.03. Paying Agent to
Repay Monies Held. Upon the satisfaction and discharge of this Indenture,
all cash and/or shares of Common Stock then held by any Paying Agent (if other
than the Trustee) shall, upon written request of the Company, be repaid to it or
paid to the Trustee, and thereupon such Paying Agent shall be released from all
further liability with respect to such cash and/or shares of Common
Stock.

        


        SECTION
6.04. Return of
Unclaimed Monies. Subject to the requirements of applicable law, any cash
and/or shares of Common Stock deposited with or paid to the Trustee for payment
of the principal of or interest, if any, on the Notes or for settlement of the
Conversion Obligation due upon conversion of the Notes and not applied but
remaining

         

        
 

        
          
            
            

          

          
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        unclaimed by the Holders of the Notes for two years after the date
upon which the principal of or interest, if any, on such Notes, or the
Conversion Obligation in respect of such Notes, as the case may be, shall have
become due and payable, shall be repaid to the Company by the Trustee on demand,
and all liability of the Trustee shall thereupon cease with respect to such cash
and/or shares of Common Stock; and the Holder of any of the Notes shall
thereafter look only to the Company for any payment or settlement that such
Holder of the Notes may be entitled to collect unless an applicable abandoned
property law designates another Person.

        


        SECTION
6.05. Reinstatement. If the
Trustee or the Paying Agent is unable to apply any cash and/or shares of Common
Stock in accordance with Section 6.02 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company’s obligations under the Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 6.01 until such time as the Trustee or the Paying Agent is permitted to
apply all such cash and/or shares of Common Stock in accordance with Section
6.02; provided, however, that if the Company
makes any payment of interest on or principal of any Note or settles any
Conversion Obligation in respect of any Note, as the case may be, following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment or settlement from the cash
and/or shares of Common Stock held by the Trustee or Paying Agent.

        


        ARTICLE
7

        


        SUPPLEMENTAL
INDENTURES

        


        SECTION
7.01. Amendments or
Supplements Without Consent of Holders. In addition to any permitted
amendment or supplement to the Indenture pursuant to Section 9.01 of the
Original Indenture, the Company and the Trustee may amend or supplement the
Indenture or the Notes without notice to or the consent of any Holder of the
Notes:

        


        (a) to add to
the Company’s covenants for the benefit of the Holders of the Notes or to
surrender any right or power conferred upon the Company;

        


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

        

        


        
          (c)  to secure
the Notes;

        

        


        
          (d)  to
surrender any rights the Company has under the Notes or the
Indenture;

        

        


        and

        


        (e) to
conform the provisions of the Indenture or the Notes to the section entitled
“Description of Notes” set forth in the Prospectus Supplement.

        


        SECTION
7.02. Amendments,
Supplements or Waivers With Consent of Holders. (a) The
Company and the Trustee may amend the Indenture with respect to the Notes and the Notes
as provided in Section 9.02 of the Original Indenture. Notwithstanding the
foregoing provision and in addition to the provisions of Section 9.02 of the
Original Indenture,

        


        


        
          
            
            

          

          
            41

            
              

            

          

          
            
            

          

        

        


         

         

        without the consent of each Holder of an outstanding Note affected
thereby, no amendment or waiver, including a waiver in relation to a past Event
of Default, may:

        


        (i)
change any place of payment where, or the currency in which, any Note or any
interest thereon is payable;

        


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

        


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

        


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

        


        (v)
reduce the percentage in principal amount of the Notes, the consent of whose
Holders is required for a supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with various provisions of the
Indenture or various defaults thereunder and their consequences provided for in
the Indenture; or

        


        (vi)
modify any of the foregoing provisions described in clause (v) above except to
increase any such percentage or to provide other provisions of the Indenture
cannot be modified or waived without the consent of the Holder of each
outstanding Note affected thereby.

        


        (b) After
an amendment, supplement or waiver under this Section 7.02 or Section 9.02 of
the Original Indenture becomes effective, the Company shall give to the Holders
affected thereby a notice briefly describing the amendment, supplement or
waiver. The Company will mail supplemental indentures to Holders upon request.
Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture or waiver.

        


        ARTICLE
8

        


        CONSOLIDATION;
MERGER; SALE OF ASSETS

        


        SECTION
8.01.    Company May Consolidate,
Etc., Only on Certain Terms.

        


        (a) The
Company shall not consolidate with or merge into any other Person and the
Company shall not sell, convey, assign, transfer, lease or otherwise dispose of
all or substantially all of the Company’s property and assets to any Person in a
single transaction or series of related transactions, unless:

        


        (i) the
Person formed by such consolidation or into which the Company is merged or the
Person which acquires by sale, conveyance, assignment, transfer or
other

        


        


        
          
            
            

          

          
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        disposition, or which leases all or substantially all of the
properties and assets of the Company (in each case, if other than the Company),
shall be a corporation organized and validly existing under the laws of the
United States of America or any state thereof or the District of Columbia, and
shall expressly assume, by a supplemental indenture executed and delivered to
the Trustee, in form and substance reasonably satisfactory to Trustee, all of
the Company’s obligations under the Notes and the Indenture;

        


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

        


        (iii) the
Company shall have, at or prior to the effective date of such consolidation or
merger or sale, conveyance, assignment, transfer, lease or other disposition,
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation or merger or sale, conveyance, assignment,
transfer, lease or other disposition and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture comply
with this Article 8 and that all conditions precedent provided for herein
relating to such transaction have been complied with.

        


        SECTION
8.02.    Successor
Substituted.

        


        Upon any
consolidation of the Company with, or merger of the Company into, any other
Person or any sale, conveyance, assignment, transfer, lease or other disposition
of all or substantially all of the Company’s assets in accordance with Section
8.01, the successor Person formed by such consolidation or into which the
Company is merged or to which such sale, conveyance, assignment, transfer, lease
or other disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Notes.

        


        ARTICLE
9

        


        INAPPLICABLE
PROVISIONS OF THE ORIGINAL INDENTURE

        


        SECTION
9.01.    Article 3, Sections 5.01,
5.02 and 8.05 of Original Indenture.

        


        (a) The
provisions of Article 3 of the Original Indenture shall not apply to the
Notes.

        


        (b) The
provisions concerning consolidation, merger and sale of assets set forth in
Article 8 of this Supplemental Indenture shall, with respect to the Notes,
supersede in their entirety the provisions of Sections 5.01 (When Company May
Merge, etc) and 5.02 (Successor Substituted) of the Original Indenture, and all
references in the Original Indenture to Sections 5.01 and 5.02 thereof and the
provisions concerning consolidation, merger and sale of assets therein shall,
with respect to the Notes, be deemed to be references to consolidation, merger
and sale of assets and related matters specified in this Supplemental
Indenture.

        


        


        
          
            
            

          

          
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        (c) The provisions concerning discharge obligations set forth in
Article 6 of this Supplemental Indenture shall, with respect to the Notes,
supersede in their entirety the provisions of Section 8.05 (Defeasance and
Discharge of Indenture) of the Original Indenture, and all references in the
Original Indenture to Section 8.05 thereof and the provisions concerning
discharge obligations therein shall, with respect to the Notes, be deemed to be
references to the discharge obligations and related matters specified in this
Supplemental Indenture.

        


        ARTICLE
10

        


        MISCELLANEOUS

        


        SECTION
10.01. 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
10.02. Payments on
Business Days. If any Interest Payment Date or the Stated Maturity of the
Notes or any earlier required repurchase date would fall on a day that is not a
Business Day, the required payment shall be made on the next succeeding Business
Day and no interest on such payment shall accrue in respect of the
delay.

        


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

        


        SECTION
10.04. Trust Indenture
Act. This Supplemental Indenture is hereby made subject to, and shall be
governed by, the provisions of the Trust Indenture Act required to be part of
and to govern indentures qualified under the Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof or
the Original Indenture that is required to be included in an indenture qualified
under the Trust Indenture Act, such required provision shall
control.

        


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

        


        SECTION
10.06. Calculations. Except
as otherwise provided in this Supplemental Indenture, the Company shall be
responsible for making all calculations called for under the Notes. These
calculations include, but are not limited to, determinations of any Last
Reported Sale Price of the Common Stock, accrued interest payable on the Notes,
daily VWAP and the Conversion Rate. The Company shall make all these
calculations in good faith and, absent manifest error, the Company’s
calculations shall be final and binding on Holders of Notes. The Company shall
provide a schedule of its calculations to each of the Trustee and the Conversion
Agent (if different than the Trustee), and each of the Trustee and Conversion
Agent (if different than the Trustee) is entitled to rely conclusively upon the
accuracy of the Company’s

        


        
          
            
            

          

          
            44

            
              

            

          

          
            
            

          

        

        


        


         

        calculations without independent verification. The Trustee will
forward the Company’s calculations to any Holder of Notes upon the request of
that Holder at the sole cost and expense of the Company.

        


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

        


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

        


        SECTION
10.10. Ratification of
Indenture. The Original 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.

        


        


        [Remainder of the page intentionally
left blank]

        


        


        


        


        


        


        


        


        


        


        


        


        


        


        


        
          
            
            

          

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

        


        
          
            
              
                
                  
                    	 
      	
                            WESTERN
      REFINING, INC.

                             

                          
	 
      	 
      	 
      
	 
      	
                            By:

                          	/s/
      Jeff A. Stevens
	 
      	 
      	
                            Name:
      Jeff A. Stevens

                          
	 
      	 
      	
                            Title:
      President and Chief Operating
Officer

                          


                  

                

              

            

          



        


        [Trustee Signature
Follows]

        


        


        


        


        


        


        


        


        


        


        


        


        
          
            
            

          

          
            46

            
              

            

          

          
            
            

          

        

        


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

                        	 
      
	 	 	 
	 
      	 
      	 
      	 
      
	 
      	
                          By:

                        	/s/
      Rafael Martinez  	 
      
	 
      	 
      	
                          Name:
      Rafael Martinez

                        	 
      
	 
      	 
      	
                          Title:
      Assistant Treasurer

                        	 
      


                

              

            

          



        


        


        


        


        


        


        


        


        


        


        


        


        


        


        


        


        


        
          
            
            

          

          
            47

            
              

            

          

          
            
            

          

        

         

        


        EXHIBIT A

        


        [FORM OF
FACE OF NOTE]

        


        THIS NOTE
IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.

        


        UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE 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 HEREON 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.

        


        
          
            
              	
                      WESTERN
      REFINING, INC.

                    
	 
	
                      5.75%
      Convertible Senior Note due
2014

                    


            

          

           

          	
                  No.
      R-1

                	
                  $_________

                
	
                  CUSIP
      No. 959319AC8

                	 
      
	
                  ISIN
      No. US959319AC82

                	 
      


        

        


        WESTERN
REFINING, INC., a Delaware corporation (herein called the “Company”, which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay CEDE & CO., or registered assigns,
-


        ________________________
DOLLARS ($_____________) (or such lesser principal amount as shall be specified
in the “Schedule of Exchanges of Notes” attached hereto as Schedule A) on June
15, 2014 unless earlier converted or repurchased, and to pay interest thereon as
set forth in the manner, at the rates and to the Persons set forth in the
Indenture.

        


        This Note
shall bear interest at a rate of 5.75% per annum from June 10, 2009 or from the
most recent date to which interest had been paid or provided to, but excluding,
the next scheduled Interest Payment Date, until the principal hereof shall be
repaid. Interest on this Note will be computed on the basis of a 360-day year
composed of twelve 30-day months. Interest is

        


        
          
            
            

          

          
            A-1

            
              

            

          

          
            
            

          

        

        


         

        payable semi-annually in arrears on each June 15 and December 15,
commencing on December 15, 2009, to the Person in whose name this Note (or one
or more predecessor securities) is registered at the close of business on the
Regular Record Date for such Interest Payment Date. Additional Interest will be
payable at the option of the Company on the terms set forth in Section 5.02 of
the within-mentioned Supplemental Indenture. Whenever in this Note there is
mentioned, in any context, the payment of interest hereon, or in respect hereof,
such mention shall be deemed to include mention of the payment of Additional
Interest provided for in Section 5.02 of the Supplemental Indenture to the
extent that, in such context, Additional Interest is, was or would be payable in
respect thereof pursuant to the provisions of Section 5.02 of the Supplemental
Indenture, and express mention of the payment of Additional Interest (if
applicable) in any provision of this Note shall not be construed as excluding
Additional Interest in those provisions of this Note where such express mention
is not made.

        


        If any
Interest Payment Date, the date of the Stated Maturity or Fundamental Change
Repurchase Date, if any, would fall on a day that is not a Business Day, the
required payment will be made on the next succeeding Business Day and no
interest on such payment will accrue in respect of the delay.

        


        The
Company will pay interest on overdue principal, and, to the extent lawful, on
overdue interest, in each case at a rate of 5.75% per annum. Interest not paid
when due and any interest on principal or interest not paid when due will be
paid to Holders on a special record date, which will be the 15th day preceding
the date fixed by the Company for the payment of such interest, whether or not
such day is a Business Day. At least 15 days before a special record date, the
Company will send to each Holder and to the Trustee a notice that sets forth the
special record date, the payment date and the amount of interest to be
paid.

        


        The
Company shall pay principal of and interest on this Note, so long as such Note
is a Global Note, in immediately available funds to the Depositary or its
nominee, as the case may be, as the registered Holder of such Note. The Company
shall pay principal of any Notes (other than Notes that are Global Notes) at the
office or agency designated by the Company for that purpose. The Company has
initially designated the Trustee as its Paying Agent and Registrar in respect of
the Notes and its agency in New York, New York as a place where Notes may be
presented for payment or for registration of transfer. The Company may, however,
change the Paying Agent or Registrar for the Notes without prior notice to the
Holders thereof, and the Company may act as Paying Agent or Registrar. Interest
on the Notes (other than Notes that are Global Notes) will be payable (i) to
Holders of the Notes having an aggregate principal amount of Notes of $5,000,000
or less, by check mailed to the Holders of these Notes at their address in the
Security Register and (ii) to Holders having an aggregate principal amount of
Notes in excess of $5,000,000, either by check mailed to each Holder at its
address in the Security Register or, upon application by a Holder to the
Registrar not later than the relevant Regular Record Date, by wire transfer in
immediately available funds to that Holder’s account within the United States,
which application shall remain in effect until that Holder notifies, in writing,
the Registrar to the contrary.

        


        Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.

        


        
          
            
            

          

          
            A-2

            
              

            

          

          
            
            

          

        

        


        In the case of any conflict between this Note and the Indenture, the
provisions of the Indenture shall control. This Note, for all purposes, shall be
governed by and construed in accordance with the laws of the State of New
York.

        


        Unless
the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.

        


        [Remainder of page intentionally left
blank]

         

         

         

         

        
          
            
            

          

          
            A-3

            
              

            

          

          
            
            

          

        

        


         

        IN WITNESS WHEREOF, WESTERN REFINING, INC. has caused this
instrument to be signed manually or by facsimile by its duly authorized
officers.

        


        Dated:  June
10, 2009

         

        
          
            
              
                
                  
                    
                      
                        	 
      	
                                WESTERN
      REFINING, INC.

                                 

                              	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                                By:

                              	 
      	 
      
	 
      	 
      	
                                Name:

                              	 
      	 
      
	 
      	 
      	
                                Title:

                              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                                By:

                              	 
      	 
      
	 
      	 
      	
                                Name:

                              	 
      	 
      
	 
      	 
      	
                                Title:

                              	 
      	 
      


                      

                    

                  

                

              

            

          

        

        


        


        
          
            
            

          

          
            A-4

            
              

            

          

          
            
            

          

        

         

         

        CERTIFICATE OF AUTHENTICATION

        


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

        


        Dated:  June
10, 2009

         

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

                      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                        By:

                      	 
      	 
      
	 
      	 
      	
                        Name:

                      	 
      
	 
      	 
      	
                        Title:

                      	 
      


              

            

          

        

        

 

        


        


        


        


        
 

        
          
            
            

          

          
            A-5

            
              

            

          

          
            
            

          

        

        


        


        


        


        [FORM OF REVERSE OF NOTE]

        


        WESTERN
REFINING, INC. 

        5.75%
Convertible Senior Note due 2014

        


        This Note
is one of a duly authorized issue of Securities of the Company (herein called
the “Notes”), issued
under an Indenture dated as of June 10, 2009, as previously amended and
supplemented from time to time in accordance with the terms thereof (herein
called the “Original
Indenture”) and as further supplemented by the Supplemental Indenture
dated as of June 10, 2009 (herein called the “Supplemental Indenture” and,
together with the Original Indenture, as supplemented by the Supplemental
Indenture, the “Indenture”) by and between the
Company and The Bank of New York Mellon Trust Company, N.A., herein called the
“Trustee”, and reference
is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Notes and of the terms upon which the Notes are,
and are to be, authenticated and delivered. Additional Notes may be issued in an
unlimited aggregate principal amount, subject to certain conditions specified in
the Indenture.

        


        This Note
is not subject to redemption at the option of the Company prior to June 15,
2014.

        


        This Note
is not subject to the provisions of Article 3, Sections 5.01, 5.02 and 8.05 of
the Original Indenture and the provisions in Article 6 and Article 8 of the
Supplemental Indenture supersede the entirety of Section 8.05 and Article 5 of
the Original Indenture, respectively.

        


        Upon the
occurrence of a Fundamental Change, the Holder has the right, at such Holder’s
option, to require the Company to repurchase 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 in accordance with the terms of the
Indenture.

        


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

        


        As
provided in and subject to the provisions 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 Stated Maturity thereof, as the case may
be, to the holder who surrenders a Note to the 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.

        


        


        
          
            
            

          

          
            A-6

            
              

            

          

          
            
            

          

        

        


        


        The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes to be effected under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in principal amount of the Notes at the time outstanding.
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Notes at the time outstanding, on behalf
of the Holders of all Notes, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.

        


        As
provided in and subject to the provisions of the Indenture, in case an Event of
Default, as defined in the Indenture, shall have occurred and be continuing, the
principal of and interest on all Notes may be declared due and payable, by
either the Trustee or 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 provided
in the Indenture; provided that upon the
occurrence of an Event of Default specified in Sections 6.01(d) or (e) of the
Original Indenture, the principal amount of, and interest on, all the Notes
shall automatically become due and payable.

        


        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 interest on this Note, if any, or
the Fundamental Change Repurchase Price, at the time, place and rate, and in the
coin and currency, herein prescribed, and to deliver the consideration due upon
conversion of this Note.

        


        As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal of and interest on this Note are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes of this series and of like tenor, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.

        


        The Notes
are issuable only in registered form without coupons in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.

        


        No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.

        


        


        
          
            
            

          

          
            A-7

            
              

            

          

          
            
            

          

        

        


        


        Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or Trustee may treat the
Person in whose name the Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the
contrary.

        


        All
defined terms used in this Note that are defined in the Indenture shall have the
meanings assigned to them in the Indenture.

        


        


        


        


        
          
            
            

          

          
            A-8

            
              

            

          

          
            
            

          

        

        


        


        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-9

            
              

            

          

          
            
            

          

        

        


        SCHEDULE A

        


        SCHEDULES
OF EXCHANGES OF NOTES

        


        WESTERN
REFINING, INC. 

        5.75%
Convertible Senior Notes due 2014

        


        The
initial principal amount of this Registered Global Security is ___________________DOLLARS
($___________). The following, exchanges, purchases or conversions of a part of
this Registered Global Security have been made:

         

        
          
            
              
                
                  
                    	
                            Date of Exchange

                          	
                            Amount
      of decrease in

                            principal
      amount of this

                            Registered Global Security

                          	
                            Amount
      of increase in

                            principal
      amount of this

                            Registered Global Security

                          	
                            Principal
      amount of

                            this
      Registered Global

                            Security
      following

                            such decrease or increase

                          	
                            Signature
      of authorized

                            signatory
      of

                            Trustee or Custodian

                          
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      


                  

                

              

            

          

        

         

        

          A-10