Exhibit 4.1


 




 


 





QWEST
COMMUNICATIONS INTERNATIONAL INC.


 


 


3.50%
Convertible Senior Notes due 2025


 


 










 


First
Supplemental Indenture


 


Dated as
of November 8, 2005


 










 


 


U.S. Bank
National Association,

as Trustee with respect to such series of Securities


 




 





 





















 


TABLE OF CONTENTS


 


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE ONE

  
	
   

  	
   

  	
   

  
	
  THE 3.50% CONVERTIBLE SENIOR NOTES DUE 2025

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Designation of Notes

  	
  2

  
	
  Section 1.02.

  	
  Other Terms of the Notes

  	
  2

  
	
  Section 1.03.

  	
  Definitions

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWO

  
	
   

  	
   

  	
   

  
	
  THE NOTES

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Form and Dating

  	
  13

  
	
  Section 2.02.

  	
  Execution and
  Authentication

  	
  14

  
	
  Section 2.03.

  	
  Registrar, Paying Agent
  and Conversion Agent

  	
  15

  
	
  Section 2.04.

  	
  Paying Agent To Hold Money
  in Trust

  	
  15

  
	
  Section 2.05.

  	
  Holder Lists

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE THREE

  
	
   

  	
   

  	
   

  
	
  OPTIONAL REDEMPTION

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Optional Redemption

  	
  16

  
	
  Section 3.02.

  	
  Selection and Notice of
  Redemption

  	
  16

  
	
  Section 3.03.

  	
  [Reserved.]

  	
  17

  
	
  Section 3.04.

  	
  Effect of Notice of
  Redemption

  	
  17

  
	
  Section 3.05.

  	
  Deposit of Redemption
  Price

  	
  17

  
	
  Section 3.06.

  	
  Notes Redeemed in Part

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOUR

  
	
   

  	
   

  	
   

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Payment of Notes

  	
  18

  
	
  Section 4.02.

  	
  Maintenance of Office or
  Agency

  	
  18

  
	
  Section 4.03.

  	
  Compliance Certificate

  	
  19

  
	
  Section 4.04.

  	
  Reservation of Common
  Stock

  	
  19

  
	
  Section 4.05.

  	
  Issuance of Shares

  	
  19

  
	
  Section 4.06.

  	
  Transfer Taxes

  	
  19

  
	
  Section 4.07.

  	
  Offer To Repurchase upon a
  Fundamental Change

  	
  20

  
	
  Section 4.08.

  	
  Offer to Repurchase on November 15,
  2010, 2015 and 2020

  	
  24

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE FIVE

  
	
   

  	
   

  	
   

  
	
  SUCCESSORS

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Merger, Consolidation, or
  Sale of Assets

  	
  25

  
	
  Section 5.02.

  	
  Successor Corporation
  Substituted

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE SIX

  
	
   

  	
   

  	
   

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Events of Default

  	
  26

  
	
  Section 6.02.

  	
  Acceleration

  	
  29

  
	
  Section 6.03.

  	
  Other Remedies

  	
  29

  
	
  Section 6.04.

  	
  Waiver of Past Defaults

  	
  30

  
	
  Section 6.05.

  	
  Control by Majority

  	
  30

  
	
  Section 6.06.

  	
  Limitation on Suits

  	
  30

  
	
  Section 6.07.

  	
  Rights of Holders of Notes
  To Receive Payment or Effect Conversion

  	
  31

  
	
  Section 6.08.

  	
  Collection Suit by Trustee

  	
  31

  
	
  Section 6.09.

  	
  Trustee May File
  Proofs of Claim

  	
  31

  
	
  Section 6.10.

  	
  Priorities

  	
  32

  
	
  Section 6.11.

  	
  Undertaking for Costs

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE SEVEN

  
	
   

  	
   

  	
   

  
	
  APPOINTMENT OF U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Appointment of U.S. Bank
  National Association

  	
  33

  
	
  Section 7.02.

  	
  Acceptance of Trustee

  	
  33

  
	
  Section 7.03.

  	
  Qualification of Trustee

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE EIGHT

  
	
   

  	
   

  	
   

  
	
  CONVERSION

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Conversion Right and
  Conversion Rate

  	
  33

  
	
  Section 8.02.

  	
  Conversion Consideration

  	
  35

  
	
  Section 8.03.

  	
  Exercise of Conversion
  Right

  	
  37

  
	
  Section 8.04.

  	
  Fractions of Shares

  	
  39

  
	
  Section 8.05.

  	
  Adjustment of Conversion
  Rate

  	
  39

  
	
  Section 8.06.

  	
  Notice of Adjustments of
  Conversion Rate

  	
  47

  
	
  Section 8.07.

  	
  Notice of Certain
  Corporate Transactions

  	
  48

  
	
  Section 8.08.

  	
  Cancellation of Converted
  Notes

  	
  48

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  Section 8.09.

  	
  Provision in Case of
  Consolidation, Merger or Sale of Assets

  	
  48

  
	
  Section 8.10.

  	
  Rights Issued in Respect
  of Common Stock

  	
  49

  
	
  Section 8.11.

  	
  Responsibility of Trustee
  and Conversion Agent for Conversion Provisions

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE NINE

  
	
   

  	
   

  	
   

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Without Consent of Holders
  of Notes

  	
  51

  
	
  Section 9.02.

  	
  With Consent of Holders of
  Notes

  	
  52

  
	
  Section 9.03.

  	
  Compliance with Trust
  Indenture Act

  	
  53

  
	
  Section 9.04.

  	
  Revocation and Effect of
  Consents

  	
  54

  
	
  Section 9.05.

  	
  Notation on or Exchange of
  Notes

  	
  54

  
	
  Section 9.06.

  	
  Trustee To Sign
  Amendments, etc.

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE TEN

  
	
   

  	
   

  	
   

  
	
  SATISFACTION AND DISCHARGE

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Satisfaction and Discharge

  	
  55

  
	
  Section 10.02.

  	
  Application of Trust
  Money; Other Miscellaneous Provisions

  	
  56

  
	
  Section 10.03.

  	
  Repayment to the Company

  	
  56

  
	
  Section 10.04.

  	
  Reinstatement

  	
  57

  
	
   

  	
   

  	
   

  
	
  ARTICLE ELEVEN

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Notices

  	
  57

  
	
  Section 11.02.

  	
  Indenture

  	
  58

  
	
  Section 11.03.

  	
  Governing Law

  	
  59

  
	
  Section 11.04.

  	
  No Adverse Interpretation
  of Other Agreements

  	
  59

  
	
  Section 11.05.

  	
  Successors and Assigns

  	
  59

  
	
  Section 11.06.

  	
  Duplicate Originals

  	
  59

  
	
  Section 11.07.

  	
  Severability

  	
  59

  



 


 


	
  Exhibits

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  FORM OF NOTE

  	
   

  
	
  Exhibit B

  	
   

  	
  FORM OF FUNDAMENTAL CHANGE REPURCHASE
  NOTICE

  	
   

  
	
  Exhibit C

  	
   

  	
  FORM OF CONVERSION NOTICE

  	
   

  
	
  Exhibit D

  	
   

  	
  FORM OF REPURCHASE NOTICE

  	
   

  



 


iii





















 


FIRST
SUPPLEMENTAL INDENTURE dated as of November 8, 2005 (this “Supplemental Indenture”) by and between QWEST COMMUNICATIONS
INTERNATIONAL INC., a Delaware corporation (the “Company”
or “QCII”), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as trustee under the Indenture
with respect to the Notes (as defined below) (the “Trustee”).
The Trustee, and each other trustee appointed as such with respect to the
Securities of any series issued under the Indenture, shall be the “Trustee” (as
defined in the Indenture, as supplemented hereby) for all purposes under the
Indenture with respect to the applicable series of Securities but, for the
avoidance of doubt, not with respect to any series of Securities for which such
Trustee has not been appointed trustee under the terms of the Indenture and/or
any supplement thereto.


 


Each party
agrees as follows for the benefit of the other party and for the equal and
ratable benefit of the holders of Notes:


 


WHEREAS, the
Company and U.S. Bank National Association, are parties to that certain
Indenture (the “Base  Indenture”)
dated as of November 8, 2005 providing for the issuance from time to time
of senior debt securities (“Securities”) to
be issued in one or more series;


 


WHEREAS, the
Base Indenture is incorporated herein by this reference and the Base Indenture,
as may be amended and supplemented to the date hereof, including by this Supplemental
Indenture, is herein called the “Indenture”;


 


WHEREAS, the
Company desires and has requested the Trustee to join it in the execution and
delivery of this Supplemental Indenture in order to establish and provide for
the issuance by the Company of a series of Securities, designated as its 3.50%
Convertible Senior Notes due 2025 (the “Notes”), in an
initial aggregate principal amount of $1,265,000,000. The Notes shall be
substantially in the form attached hereto as Exhibit A;


 


WHEREAS, the
conditions set forth in the Base Indenture for the execution and delivery of
this Supplemental Indenture have been complied with;


 


WHEREAS, the
Company desires to evidence and provide for the acceptance of the appointment
under the Indenture of the Trustee as Trustee with respect to the Notes and to
add to or change certain provisions of the Base Indenture as it shall apply to
the Notes; and


 


WHEREAS, all
things necessary to make this Supplemental Indenture a valid agreement of the
Company and the Trustee, in accordance with its terms, and a valid amendment
of, and supplement to, the Indenture have been done.


 


NOW,
THEREFORE, in consideration of the premises and the purchase and acceptance of
the Notes by the holders thereof, the Company covenants and agrees with the
Trustee, for the equal and ratable benefit of the Holders, that the Base
Indenture is supplemented and amended, to the extent expressed herein, as
follows:


 





















 


ARTICLE ONE



THE 3.50% CONVERTIBLE SENIOR NOTES DUE 2025


 


Section 1.01.                                       Designation
of Notes.


 


The changes,
modifications and supplements to the Base Indenture effected by this
Supplemental Indenture shall be applicable only with respect to, and govern the
terms of, the Notes as defined below or as defined in the preamble to this
Supplemental Indenture, which shall not be limited in aggregate principal
amount, and shall not apply to any other Securities that have been or may be
issued under the Base Indenture unless a supplemental indenture with respect to
such other Securities specifically incorporates such changes, modifications and
supplements. Pursuant to Section 2.06 of the Base Indenture, there is
hereby created and designated a series of Securities under the Indenture,
entitled “3.50% Convertible Senior Notes due 2025.”  The Notes shall be in the form of Exhibit A
hereto. The Notes may bear an appropriate legend regarding original issue
discount for federal income tax purposes. Subject to the terms in the Indenture
the Company may, at its option, without consent from the Holders, issue
Additional Notes from time to time. For all purposes under the Indenture, the
term “Notes” shall include the Initial Notes and any such Additional Notes
issued after the date of this Indenture.


 


Section 1.02.                                       Other
Terms of the Notes.


 


Without
limiting the foregoing, the terms of the Notes shall be as set forth in the
form of Note set forth in Exhibit A hereto, and are hereby
incorporated in and expressly made a part of this Supplemental Indenture, and
as provided in the Indenture.


 


The Trustee
shall authenticate and deliver Notes for original issue in an aggregate
principal amount of up to $1,265,000,000 of the 3.50% Convertible Senior Notes
due 2025.


 


The Notes
shall be payable and may be presented for payment, purchase, conversion,
registration of transfer and exchange, without service charge, at the office of
the Company maintained for such purpose in New York, New York, which shall initially
be the office or agency of the Trustee.


 


Section 1.03.                                       Definitions.


 


(a)                                  The
following terms have the meanings set forth below in this Supplemental
Indenture. Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to such terms in the Base Indenture. To the extent terms
defined herein differ from the Base Indenture, the terms defined herein will
govern.


 


2





















 


“Additional Notes” means
additional Notes (other than the Initial Notes) issued under this Indenture in
accordance with Section 2.02 hereof, as part of the same series as the Initial
Notes.


 


“Additional Shares” means
additional shares of Common Stock by which the Conversion Rate shall be
increased for Notes surrendered for conversion pursuant to an adjustment of the
Conversion Rate upon the occurrence of a Fundamental Change. The number of Additional
Shares shall be determined based on the Effective Date of the Fundamental
Change and the Stock Price in such Fundamental Change transaction, all in
accordance with Section 8.05(e).


 


“Affiliate”
means, with respect to any specified Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition, “control”
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the foregoing. No individual
shall be deemed to be controlled by or under common control with any specified
Person solely by virtue of his or her status as an employee or officer of such
specified Person or of any other Person controlled by or under common control
with such specified Person.


 


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


 


“Applicable Conversion Price” means, at any given time,
$1,000 divided by the Applicable Conversion Rate, rounded to the nearest 1/10th
of a cent.


 


“Applicable Conversion Rate” means, at any given time, the
Conversion Rate then in effect, rounded to the nearest 1/10,000th of
a share.


 


“Applicable Conversion Reference Period” means
the 20 consecutive Trading Days beginning on the third Trading Day following
the Conversion Date or, if the Company elects to pay cash to Holders of Notes
in lieu of all or a portion of the Residual Value Shares, the third Trading Day
after the Conversion Retraction Period ends.


 


“Applicable Procedures” means, with
respect to any transfer or exchange of or for beneficial interests in any
Global Note, the rules and procedures of the Depositary that apply to such
transfer or exchange.


 


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


 


3





















 


“Beneficial Owner” has the
meaning assigned to such term in Rule 13d-3 under the Exchange Act. The
terms “Beneficial Ownership” and “Beneficially Owns” have a corresponding
meaning.


 


“Board of
Directors” means the board of directors of the Company or any duly
authorized committee of that board.


 


“Business Day” means any day
other than a Saturday, Sunday or a day on which banking institutions in the
City of New York, New York or at a place of payment are authorized by law,
regulation or executive order to remain closed.


 


“Capital Stock” means:


 


(1)                                  in
the case of a corporation, corporate stock;


 


(2)                                  in
the case of an association or business entity, shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;


 


(3)                                  in
the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and


 


(4)                                  any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of the assets of, the
issuing Person.


 


“Closing Sale Price” means, with
respect to the Common Stock, on any date, the last reported closing price per
share (or, if no last closing price is reported, the average of the last bid
and ask prices or, if more than one in either case, the average of the average
bid and the average ask prices) on such date as reported in composite
transactions for the principal U.S. securities exchange on which the Common
Stock then is listed or, if the Common Stock is not listed on a U.S. national
or regional exchange, as reported on NASDAQ or, if the Common Stock is not
quoted on NASDAQ, the “Closing Sale Price” will be the last quoted bid
price for the Common Stock in the over-the-counter market on the relevant dates
as reported by the National Quotation Bureau Incorporated or any similar U.S.
system of automated dissemination of quotations of securities prices. If the
Common Stock is not so quoted, the “Closing Sale Price” will be the price as
reported on the principal other market on which the Common Stock is then traded.
In the absence of such quotations, the Company’s Board of Directors will make a
good faith determination of the Closing Sale Price.


 


“Common Stock” means the
common stock of the Company, par value $0.01 per share, as it exists on the
date of this Indenture, or to the extent such common stock is reclassified or
otherwise ceases to exist, any class of Capital Stock of the Company that (1) is
Voting Stock, (2) has no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the issuer thereof and which is not subject to redemption by
the issuer thereof and (3) is registered pursuant to Section 12 


 


4





















 


of the
Exchange Act and admitted for trading on a national securities exchange or
quoted on the automated quotation system of a registered securities
association, if any.


 


“Company”
means the Person named as the “Company” in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture and thereafter “Company” shall mean
such successor Person.


 


“Comparable Treasury Issue” means the United States Treasury
security selected by the Quotation Agent as having a maturity comparable to the
Remaining Life that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity with the Remaining Life as of
the Applicable Redemption Date.


 


“Comparable Treasury Price” means, with respect to any Redemption
Date, the average of two Reference Treasury Dealer Quotations for such
Redemption Date.


 


“Continuing Directors” means, as of
any date of determination, any member of the Board of Directors of the Company
who:


 


(1)                                  was
a member of such Board of Directors on the date of this Indenture; or


 


(2)                                  becomes
a member of the Board of Directors of the Company subsequent to that date and
was appointed, nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were members of
such Board of Directors at the time of such appointment, nomination or
election.


 


“Conversion Period” means the
period from and including the eleventh Trading Day in a fiscal quarter up to,
but not including, the eleventh Trading Day of the following fiscal quarter.


 


“Conversion Price” shall equal
$1,000 divided by the Conversion Rate (rounded to the nearest 1/10th of a cent).


 


“Conversion Value” shall equal
the product of (1) the Applicable Conversion Rate and (2) the average
of the Closing Sale Prices of the Common Stock for each of the 20 consecutive
Trading Days in the Applicable Conversion Reference Period.


 


“Corporate Trust Office of the Trustee” will be at the address of the Trustee specified in Section 11.01
hereof or such other address as to which the Trustee may give notice to the
Company.


 


5





















 


“Current Market Price” as of any date
means:


 


(1)                                  for
the purpose of any computation under Section 8.05(a) (except for
clauses (6) and (8) thereof), the average of the Closing Sale Prices
for the five consecutive Trading Days ending on the
Trading Day prior to the earlier of the record date or the ex-dividend Trading
Day for such distribution;


 


(2)                                  for
the purpose of any computation under Section 8.05(a)(6), the average of
the Closing Sale Prices for the five consecutive Trading Days ending on the
Trading Day prior to the ex-dividend Trading Day for such distribution; and


 


(3)                                  for
the purpose of any computation under Section 8.05(a)(8), the average of
the Closing Sale Prices for the five consecutive Trading Days beginning on the
Trading Day immediately following the date of the repurchase triggering the
adjustment.


 


“Custodian” means the
Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.


 


“Daily Adjustment” for any given
Trading Day shall equal a fraction:


 


(1)                                  the
numerator of which shall be the Closing Sale Price of the Common Stock on such
Trading Day plus the closing price of the portion of those shares of Capital
Stock or similar Equity Interests so distributed applicable to one share of
Common Stock on such Trading Day; and


 


(2)                                  the
denominator of which shall be the product of ten (10) and the Closing Sale
Price of the Common Stock on such Trading Day.


 


“Daily Trading Share Amount” for
each day in the Applicable Conversion Reference Period shall equal the greater
of:


 


(1)                                  zero;
or


 


(2)                                  a
number of shares determined by the following formula:


 


	
   

  	
  (Closing
  Sale Price x Applicable Conversion Rate) - $1,000

  	
   

  
	
  20 x Closing
  Sale Price

  



 


“Default”
means an event that is, or after notice or passage of time, or both, would be,
an Event of Default with respect to the Notes.


 


“Definitive Note” means a
certificated Note registered in the name of the Holder thereof, substantially
in the form of Exhibit A hereto except that such Note shall not


 


6





















 


bear the
Global Note Legend and shall not have the “Schedule of Exchanges of
Interests in the Global Note” attached thereto.


 


“Depositary” means, with
respect to the Notes issuable or issued in whole or in part in global form, the
Person specified in Section 2.03 hereof as the Depositary with respect to
the Notes, and any and all successors thereto appointed as depositary hereunder
and having become such pursuant to the applicable provision of this Indenture.


 


“Effective Date” means the date
on which a Fundamental Change transaction becomes effective.


 


“Equity Interests” means Capital
Stock and all warrants, options or other rights to acquire Capital Stock (but
excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).


 


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


 


“Fair Market Value” means the
value that would be paid by a willing buyer to an unaffiliated willing seller
in a transaction not involving distress or necessity of either party,
determined in good faith by the Board of Directors of the Company or, unless
otherwise provided in this Indenture, by any Responsible Officer delegated by
the Board of Directors to make such determination on their behalf.


 


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


 


(1)                                  the
Company’s Common Stock (or other common stock into which the Notes are
convertible) is neither traded on the New York Stock Exchange or another U.S.
national securities exchange nor quoted on NASDAQ or another established
automated over-the-counter trading market in the United States; or


 


(2)                                  any
Person, including any syndicate or group deemed to be a “person” under Section 13(d)(3) of
the Exchange Act, acquires Beneficial Ownership, directly or indirectly,
through a purchase, merger or other acquisition transaction or series of
transactions, of shares of the Company’s Capital Stock entitling such Person to
exercise 50% or more of the total voting power of all shares of the Company’s
Capital Stock entitled to vote generally in elections of directors, other than
an acquisition by the Company, any of its Subsidiaries or any of the Company’s
employee benefit plans; or


 


(3)                                  the
Company merges or consolidates with or into any other Person (other than a
Subsidiary), another Person merges with or into the Company, or the Company
conveys, sells, transfers or leases all or substantially all of the Company’s
assets to another Person, other than any transaction:


 


7





















 


(a)                                  that does not result in a reclassification,
conversion, exchange or cancellation of the Company’s outstanding Common Stock;
or


 


(b)                                 pursuant to which the holders of the Company’s
Common Stock immediately prior to the transaction have the entitlement to
exercise, directly or indirectly, 50% or more of the voting power of all shares
of Capital Stock entitled to vote generally in the election of directors of the
continuing or surviving corporation immediately after the transaction; or


 


(c)                                  which is effected solely to change the
Company’s jurisdiction of incorporation and results in a reclassification,
conversion or exchange of outstanding shares of the Company’s Common Stock
solely into shares of common stock of the surviving entity; or


 


(4)                                  at
any time the Continuing Directors do not constitute a majority of the Company’s
Board of Directors (or, if applicable, a successor Person to the Company).


 


“Global Note Legend” means a legend
substantially to the effect of the legend in Section 2.10 of the Base Indenture.


 


“Government Securities” means direct
obligations of, or obligations guaranteed by, the United States of America, and
for the payment of which the United States pledges its full faith and credit.


 


“Holder” means a Person
in whose name a Note is registered.


 


“Initial Notes” means the $1,265,000,000
aggregate principal amount of Notes issued under this Indenture on the date
hereof.


 


“Interest Payment Date” means May 15
and November 15 of each year or, if any such day is not a Business Day, on
the next succeeding Business Day.


 


“Legal Holiday” means a
Saturday, a Sunday or a day on which banking institutions in the City of New
York, New York or at a place of payment are authorized by law, regulation or
executive order to remain closed. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue on such payment for
the intervening period.


 


“Market Capitalization” means the
product of (1) the Current Market Price of the Common Stock and (2) the
number of shares of Common Stock then outstanding on the date of the repurchase
of Common Stock triggering the adjustment set forth in Section 8.05(a)(8) hereof
immediately prior to such repurchase.


 


“Maturity” means, with
respect to any Note, the date on which the principal of such Note becomes due
and payable as therein or herein provided, whether at stated maturity,


 


8





















 


on a
Redemption Date or by declaration of acceleration, offer to repurchase pursuant
to Section 4.07, 4.08 or otherwise.


 


“NASDAQ” means The
NASDAQ Stock Market, Inc.


 


“Notes” has the
meaning assigned to it in the preamble to this Supplemental Indenture. The
Initial Notes and the Additional Notes shall be treated as a single class for
all purposes under this Indenture, and unless the context otherwise requires,
all references to the Notes shall include the Initial Notes and any Additional
Notes.


 


“NYSE” means The New
York Stock Exchange, Inc.


 


“Officer’s Certificate” means a certificate signed by a
Responsible Officer and delivered to the Trustee.


 


“Opinion of
Counsel” means a written opinion of counsel, who may be an employee
of or counsel for the Company, any subsidiary of the Company or the Trustee.


 


“Outstanding”, when used with respect to Notes, means, as of
the date of determination, all Notes theretofore authenticated and delivered
under this Indenture, except:


 


(i)                  Notes theretofore cancelled by the Trustee or delivered to the Trustee
for cancellation (including Notes converted and cancelled pursuant to this
Indenture);


 


(ii)               Notes
for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company)
in trust or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Notes; provided, that, if such Notes are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;


 


(iii)            Notes
which have been paid pursuant to Section 2.10 of the Base Indenture or in
exchange for or in lieu of which other Notes have been authenticated and delivered
pursuant to this Indenture, other than any such Notes in respect of which there
shall have been presented to the Trustee proof satisfactory to it that such
Notes are held by a bona fide purchaser in whose hands such Notes are valid
obligations of the Company; and


 


(iv)           Notes as to which Defeasance has been
effected pursuant to Section 9.02 of the Base Indenture;


 


provided,
however, that in
determining whether the Holders of the requisite principal amount of the
Outstanding Notes have given, made or taken any request, demand, authorization,
direction, notice, consent, waiver or other action hereunder, Notes owned by
the Company or


 


9





















 


any other
obligor upon the Notes or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other
action, only Notes which the Trustee knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or of such other obligor.


 


“Participant” means a Person
who has an account with the Depositary.


 


“Paying Agent”
means any Person authorized by the Company to pay the principal of (and
premium, if any) or interest on any Notes on behalf of the Company.


 


“Person”
means any individual, corporation, partnership, limited liability company,
joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof or
any syndicate or group that would be deemed to be a “person” under Section 13(d) (3) of
the Exchange Act.


 


“Quotation Agent” means a Reference Treasury Dealer appointed
by the Company to act as the Quotation Agent pursuant to the terms of this
Indenture.


 


“Record Date Period” means the
period from the close of business on any Regular Record Date immediately
preceding any Interest Payment Date to the opening of business on such Interest
Payment Date.


 


“Redemption Date” when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.


 


“Reference Treasury Dealer” means Goldman, Sachs &
Co. and its successors and another U.S. Government securities dealer selected
by the Company; provided, however,
that if either Goldman, Sachs & Co. or such other U.S. Government
securities dealer selected by the Company ceases to be a primary U.S.
Government securities dealer in New York City, the Company will substitute
therefore another primary U.S. Government securities dealer.


 


“Reference Treasury Dealer Quotations” means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third business day preceding such Redemption Date.


 


“Regular Record Date” for interest
payable in respect of any Note on any Interest Payment Date means the May 1
or November 1 (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date.


 


10





















 


“Residual Cash Value” for each date
shall be the product of (1) the percentage of each Residual Value Share
otherwise issuable upon conversion which the Company elects to pay in cash and (2) the
cash value of the Daily Trading Share Amount for such date. The cash value of
the Daily Trading Share Amount shall be determined by multiplying the Daily
Trading Share Amount for such date by the Closing Sale Price of the Common
Stock for such date.


 


“Responsible Officer” means the Chairman of the Board, Chief
Executive Officer, the President, the Vice President, the Chief Financial
Officer, the Controller, the Chief Accounting Officer, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, or
any other officer of the Company specified in an applicable Board Resolution,
supplemental indenture or Officer’s Certificate relating to the Notes.


 


“Schedule TO” means Schedule TO
under the Exchange Act or any successor or
similar schedule that may be promulgated thereunder.


 


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


 


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


 


“Significant Subsidiary” means any
Subsidiary that would be a “significant subsidiary” as defined in Article 1,
Rule 1-02(w) of Regulation S-X, promulgated under the Securities Act, as
is in effect on the date of this Indenture.


 


“Stock Price” means the
price paid per share of Common Stock in the applicable Fundamental Change
transaction; provided that (1) if holders
of Common Stock receive only cash in such Fundamental Change transaction, the
Stock Price will be the cash amount paid per share of Common Stock and (2) in
any other Fundamental Change transaction, the Stock Price will be the average
of the Closing Sale Prices on each of the five consecutive Trading Days prior
to but not including the Effective Date of such Fundamental Change.


 


“Subsidiary” of any Person means (i) a corporation with
more than 50% of the outstanding Voting Stock of which is owned, directly or
indirectly, by such Person or by one or more other Subsidiaries of such Person
or by such Person and one or more Subsidiaries thereof or (ii) any other
Person (other than a corporation) in which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other Subsidiaries
thereof, directly or indirectly, has at least a majority ownership and power to
direct the policies, management and affairs thereof.


 


“TIA” means the
Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).


 


“Trading Day” means a day
during which trading in securities generally occurs on the NYSE or, if the
Common Stock is not then listed the NYSE or another United States


 


11





















 


national
securities exchange nor quoted on NASDAQ or another established automated
over-the-counter trading market in the United States, on the principal other
market on which the Common Stock is then traded or quoted.


 


“Trading Price” means, with
respect to the Notes, on any date of determination, the average of the
secondary market bid quotations per Note obtained by the Conversion Agent for
$5.0 million principal amount of the Notes at approximately 3:30 p.m., New
York City time, on such determination date from two independent nationally
recognized securities dealers selected by the Company, which may include any of
the underwriters for the Notes; provided that
if at least two such bids cannot reasonably be obtained by the Conversion
Agent, but one such bid can reasonably be obtained by the Conversion Agent,
this one bid will be used. If the Conversion Agent cannot reasonably obtain at
least one bid for $5.0 million principal amount of the Notes from a nationally
recognized securities dealer or, in the Company’s reasonable judgment, the bid
quotations are not indicative of the secondary market value of the Notes, then
the trading price of the Notes, as determined by the Company, will equal (a) the
then-Applicable Conversion Rate of the Notes multiplied by (b) the Closing
Sale Price of the Common Stock on such determination date. Any such
determination will be conclusive absent manifest error.


 


“Treasury Rate” means, with respect to any Redemption Date,
the rate per annum equal to the semiannual yield to maturity of the Comparable
Treasury Issue, calculated by the Company on the third business day preceding
such Redemption Date using a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the Comparable Treasury Price
for such Redemption Date.


 


“Trustee” means U.S.
Bank National Association until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor
serving hereunder.


 


 “Voting Stock” of any specified Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of
the Board of Directors of such Person.


 


(b)                                 Other
Definitions.


 


	
  Term

  	
   

  	
  Defined
  in

  Section

  
	
  “Authentication Order”

  	
   

  	
  2.02

  
	
  “Cash Settlement Notice
  Period”

  	
   

  	
  8.02(b)

  
	
  “Conversion Agent”

  	
   

  	
  2.03

  
	
  “Conversion Date”

  	
   

  	
  8.03(a)

  
	
  “Conversion Notice”

  	
   

  	
  8.03(a)

  
	
  “Conversion Rate”

  	
   

  	
  8.01(d)

  
	
  “Conversion Retraction
  Period”

  	
   

  	
  8.02(b)

  



 


12





















 


	
  Term

  	
   

  	
  Defined
  in

  Section

  
	
  “Distributed Asset”

  	
   

  	
  8.05(a)(4)

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event of Default”

  	
   

  	
  6.01

  
	
  “Expiration Date”

  	
   

  	
  8.05(a)(7)

  
	
  “Fundamental Change
  Conversion Right Notice”

  	
   

  	
  4.07(a)

  
	
  “Fundamental Change
  Repurchase Date”

  	
   

  	
  4.07(a)

  
	
  “Fundamental Change
  Repurchase Notice”

  	
   

  	
  4.07(a)(3)(c)

  
	
  “Fundamental Change
  Repurchase Right Notice”

  	
   

  	
  4.07(a)(3)(b)

  
	
  “Make-Whole Premium”

  	
   

  	
  3.01(a)

  
	
  “Moody’s”

  	
   

  	
  6.01

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Remaining Life”

  	
   

  	
  3.01(a)

  
	
  “Repurchase Dates”

  	
   

  	
  4.08(a)

  
	
  “Repurchase Notice”

  	
   

  	
  4.08(b)

  
	
  “Repurchase Notice Deadline”

  	
   

  	
  4.08(b)

  
	
  “Repurchase Premium”

  	
   

  	
  8.05(a)(8)

  
	
  “Residual Value Shares”

  	
   

  	
  8.02(a)

  
	
  “S&P”

  	
   

  	
  6.01

  
	
  “Sale Price Condition”

  	
   

  	
  8.01(a)(1)

  
	
  “Settlement”

  	
   

  	
  8.03(c)

  
	
  “Spin-off”

  	
   

  	
  8.05(a)(5)

  
	
  “Trading Price Condition”

  	
   

  	
  8.01(a)(2)

  
	
  “Trigger Event”

  	
   

  	
  8.10

  



 


(c)                                  For
all purposes of the Indenture, except as otherwise expressly provided or unless
the context otherwise requires, the terms defined in this Article One have
the meanings assigned to them in this Article, and include the plural, as well
as the singular.


 


ARTICLE TWO



THE NOTES


 


Section 2.01.                                       Form and
Dating.


 


(a)                                  General.
The Notes and the Trustee’s certificate of authentication will be substantially
in the form of Exhibit A hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. Each
Note will be dated the date of its authentication. The Notes shall be in
denominations of $2,000 and integral multiples of $1,000 in excess thereof.


 


13





















 


The terms and
provisions contained in the Notes will constitute, and are hereby expressly
made, a part of this Indenture and the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. However, to the extent any provision of any
Note conflicts with the express provisions of this Indenture, the provisions of
this Indenture shall govern and be controlling.


 


(b)                                 Global
Notes. Notes issued in global form will be substantially in the form of Exhibit A
hereto (including the Global Note Legend thereon and the “Schedule of
Exchanges of Interests in the Global Note” attached thereto). Notes issued in
definitive form will be substantially in the form of Exhibit A
hereto (but without the Global Note Legend thereon and without the “Schedule of
Exchanges of Interests in the Global Note” attached thereto). Each Global Note
will represent such of the outstanding Notes as will be specified thereon and
each shall provide that it represents the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect transfers, exchanges,
conversions and repurchases. Any endorsement of a Global Note to reflect the
amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby will be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by the Base Indenture or Article 8
hereof.


 


Section 2.02.                                       Execution
and Authentication.


 


At least one
Officer must sign the Notes for the Company by manual or facsimile signature.


 


If an Officer
whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note will nevertheless be valid.


 


A Note will
not be valid until authenticated by the manual signature of the Trustee. The
signature will be conclusive evidence that the Note has been authenticated
under this Indenture.


 


The Trustee
will, upon receipt of a written order of the Company signed by two Officers (an
“Authentication Order”), authenticate Notes, including Additional Notes, in an
unlimited aggregate principal amount, subject to the provisions of this
Indenture. Each Authentication Order will specify the amount of Notes to be
authenticated, the date on which the Notes are to be authenticated and, in the
case of Additional Notes, the issue price of such Notes.


 


The Trustee
may appoint an authenticating agent acceptable to the Company to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with Holders, the Company or an Affiliate of the
Company.


 


14





















 


Section 2.03.                                       Registrar,
Paying Agent and Conversion Agent.


 


The Company
will maintain an office or agency where Notes may be presented for registration
of transfer or for exchange (“Registrar”), an office or agency where Notes may be presented for
payment (“Paying Agent”), and
an office or agency where Notes may be presented for conversion pursuant to Article 8
hereof (“Conversion Agent”). The Registrar will
keep a register of the Notes and of their transfer and exchange. The Company
may appoint one or more co-registrars and one or more additional paying agents
or conversion agents. The term “Registrar” includes any co-registrar, the term “Paying
Agent” includes any additional paying agent and the term “Conversion Agent”
includes any additional conversion agent. The Company may change any Registrar,
Paying Agent or Conversion Agent without notice to any Holder. The Company will
notify the Trustee in writing of the name and address of any Agent not a party
to this Indenture. If the Company fails to appoint or maintain another entity
as Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Registrar, Paying Agent or
Conversion Agent.


 


The Company
initially appoints The Depository Trust Company (“DTC”)
to act as Depositary with respect to the Global Notes.


 


The Company
initially appoints the Trustee to act as the Registrar, Paying Agent and
Conversion Agent and to act as Custodian with respect to the Global Notes.


 


Section 2.04.                                       Paying
Agent To Hold Money in Trust.


 


The Company
will require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust for the benefit of Holders or the Trustee
all money held by the Paying Agent for the payment of principal or interest on
the Notes, and will notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee may upon
written request to a Paying Agent require such Paying Agent to pay all money
held by it to the Trustee and to account for any amounts paid. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee
and to account for any amounts paid. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) will have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent,
it will segregate and hold in a separate trust fund for the benefit of the
Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee will serve as Paying Agent for
the Notes.


 


Section 2.05.                                       Holder
Lists.


 


The Trustee
will preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall
otherwise comply with TIA § 312(a). If the Trustee is not the Registrar,
the Company will furnish to the Trustee at least five Business Days before each
interest payment date and at such other times


 


15





















 


as the Trustee
may request in writing, a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of the Holders of Notes and
the Company shall otherwise comply with TIA § 312(a).


 


ARTICLE THREE



OPTIONAL REDEMPTION


 


Section 3.01.                                       Optional
Redemption.


 


(a)                                  The
Notes are subject to redemption, at the option of the Company, on or after November 20,
2008, and before November 20, 2010, in whole or in part, but only if the
Closing Sale Price of the Common Stock for at least 20 Trading Days in the 30
consecutive Trading Day period ending on the date one day prior to the day the
Company gives a notice of redemption is greater than 130% of the Applicable
Conversion Price on the date of such notice, at a redemption price in cash
equal to the sum of (1) 100% of the principal amount of the Notes to be
redeemed, plus (2) the sum, as determined by the Quotation Agent, of the
present values of the remaining scheduled payments of interest thereof from the
Redemption Date to November 20, 2010 (excluding interest accrued to the
Redemption Date) (the “Remaining Life”)
discounted from their respective scheduled payment dates to the Redemption Date
on a semiannual basis (assuming a 360-day year consisting of 30-day months) at
the Treasury Rate, as defined below, plus 50 basis points (the “Make-Whole Premium”), plus (3) accrued and unpaid
interest, if any, on the principal amount of the notes redeemed to the date of
redemption.


 


(b)                                 The
Make Whole Premium shall be paid in cash to the Holders of all Notes being
called for redemption by the Company on a Redemption Date prior to November 20,
2010, including to Holders of any Notes that may have been converted after the
date of the Redemption Notice and prior to such Redemption Date.


 


(c)                                  In
addition to the optional redemption of the Notes in accordance with the
provisions of Section 3.01(a), at any time on or after November 20,
2010, the Notes are subject to redemption, at the option of the Company, in
whole or in part, at a redemption price in cash equal to 100% of the principal
amount of the Notes called for redemption, together with accrued and unpaid
interest thereon, if any, to the Redemption Date.


 


Section 3.02.                                       Selection
and Notice of Redemption.


 


(a)                                  If
less than all of the Notes are to be redeemed, the Trustee will select Notes
for redemption on a pro rata basis,
by lot or by such method as the Trustee shall deem fair and equitable, except:


 


(1)                                  if
the Notes are listed on any national securities exchange, in compliance with
the requirements of the principal national securities exchange on which the
Notes are listed; or


 


16





















 


(2)                                  if
otherwise required by law.


 


In the event
of redemption by lot, the particular Notes to be redeemed will be selected,
unless otherwise provided herein, not less than 30 nor more than 60 days prior
to the Redemption Date by the Trustee from the outstanding Notes not previously
called for redemption.


 


The Trustee
will promptly notify the Company in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the
principal amount thereof to be redeemed. Notes and portions of Notes selected
will be in amounts of $2,000 or integral multiples of $1,000 in excess thereof;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.


 


(b)                                 Notice
of redemption will be sent by first class mail, electronically or by other
means approved by the Trustee not less than 30 nor more than 60 days before the
Redemption Date to each Holder of Notes to be redeemed at its registered
address. If any Note is to be redeemed in part only, the notice of redemption
that relates to that Note will state the portion of the principal amount of the
Note to be redeemed. A Note in a principal amount equal to the unredeemed
portion of the Note will be issued in the name of the holder of the note upon
cancellation of the original Note. On and after the Redemption Date, interest
will cease to accrue on Notes or portions thereof called for redemption so long
as the Company has deposited with the Paying Agent for the Notes funds in
satisfaction of the redemption price (including accrued and unpaid interest, if
any, on the Notes to be redeemed) pursuant to this Indenture.


 


Section 3.03.                                       [Reserved.]


 


Section 3.04.                                       Effect
of Notice of Redemption.


 


Once notice of
redemption is sent in accordance with Section 3.02 hereof, Notes called
for redemption become irrevocably due and payable on the Redemption Date. A
notice of redemption may not be conditional.


 


Section 3.05.                                       Deposit
of Redemption Price.


 


Prior to 11:00 a.m.,
New York City time, on any Redemption Date, if not previously deposited, the
Company will deposit with the Trustee or with the Paying Agent money sufficient
to pay the redemption price of and accrued interest, if any, on all Notes to be
redeemed on that date. The Trustee or the Paying Agent will promptly return to
the Company any money deposited with the Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption price of, and
accrued interest, if any, on, all Notes to be redeemed.


 


17





















 


Section 3.06.                                       Notes
Redeemed in Part.


 


Upon surrender
of a Note that is redeemed in part, the Company will issue and, upon receipt of
an Authentication Order, the Trustee will authenticate for the Holder at the
expense of the Company a new Note equal in principal amount to the unredeemed
portion of the Note surrendered. A Note may be redeemed in part, but only if
the principal amount of such Note to be redeemed is any integral multiple of
$1,000 and the principal amount of such security to remain outstanding after
such redemption is equal to $2,000 or any integral multiple of $1,000 in excess
thereof.


 


ARTICLE FOUR



COVENANTS


 


Section 4.01.                                       Payment
of Notes.


 


The Company
will pay or cause to be paid the principal of and interest, if any, on the
Notes on the dates and in the manner provided in the Notes. Principal and
interest, if any, will be considered paid on the date due if the Paying Agent,
if other than the Company or a Subsidiary thereof, holds as of 11:00 a.m. Eastern
Time on the due date money deposited by the Company in immediately available
funds and designated for and sufficient to pay all principal and interest then
due.


 


The Company
will pay interest on overdue principal at the then applicable interest rate on
the Notes to the extent lawful; it will pay interest on overdue installments of
interest (without regard to any applicable grace period) at the same rate to
the extent lawful.


 


Section 4.02.                                       Maintenance
of Office or Agency.


 


The Company
will maintain in the Borough of Manhattan, the City of New York, an office or
agency (which may be an office of the Trustee
or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company fails to maintain any such required office or agency or fails
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.


 


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


 


18





















 


will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.


 


The Company
hereby designates the Corporate Trust Office of the Trustee as one such office
or agency of the Company.


 


Section 4.03.                                       Compliance
Certificate.


 


The Company
shall deliver to the Trustee within 120 days after the end of each fiscal year
an Officer’s Certificate stating that in the course of the performance by the
signer of his or her duties as a Responsible Officer of the Company, he or she
would normally have knowledge of any Default and whether or not such signer
knows of any Default that occurred during such period. If such signer does have
such knowledge, the certificate shall describe the Default, its status and what
action the Company is taking or proposes to take with respect thereto. The
Company also shall comply with Section 314(a)(4) of the TIA.


 


The Company
shall deliver to the Trustee, as soon as possible and in any event within five
days after the Company becomes aware of the occurrence of any Event of Default
or an event which, with notice or the lapse of time or both, would constitute
an Event of Default, an Officer’s Certificate setting forth the details of such
Event of Default or Default and the action which the Company is taking or
proposes to take with respect thereto.


 


Section 4.04.                                       Reservation
of Common Stock.


 


The Company
shall at all times reserve and keep available, free from preemptive rights, out
of its authorized but unissued Common Stock or shares held in treasury by the
Company, for the purpose of effecting the conversion of Notes, the full number
of shares of Common Stock then issuable upon the conversion of all outstanding
Notes.


 


Section 4.05.                                       Issuance
of Shares.


 


All shares of
Common Stock delivered upon conversion or repurchase of the Notes shall be
newly issued shares or shares held in treasury by the Company, shall have been
duly authorized and validly issued and shall be fully paid and nonassessable,
and shall be free from preemptive rights and free of any lien or adverse claim.


 


Section 4.06.                                       Transfer
Taxes.


 


If a Holder
converts Notes for shares of Common Stock, the Company will pay any and all
documentary, stamp or similar issue or transfer tax due on the issue or shares
of Common Stock upon the conversion. The Company shall not, however, be
required to pay any tax or duty that may be payable in respect of any transfer
involved in the issue and delivery of shares of Common Stock in a name other
than that of the Holder of the Note or Notes to be converted, and no such issue
or delivery shall be made unless and until the Person requesting 


 


19





















 


such issue has
paid to the Company the amount of any such tax or duty, or has established to
the satisfaction of the Company that such tax or duty has been paid.


 


Section 4.07.                                       Offer
To Repurchase upon a Fundamental Change.


 


Subject to Section 4.07(d) hereof,
upon the occurrence of a Fundamental Change at any time prior to stated Maturity,
each Holder may require the Company to repurchase the Notes on a date chosen by
the Company in its sole discretion that is no less than 20 Business Days and no
more than 35 Business Days (subject to extension to comply with applicable law)
after the Company sends the Fundamental Change Repurchase Right Notice (the “Fundamental Change Repurchase Date”), and
the Company shall repurchase on the Fundamental Change Repurchase Date, any or
all Notes submitted for repurchase for cash, or any portion of the initial
principal amount thereof that is equal to $2,000 or an integral multiple of
$1,000, provided that the principal amount of such security to remain
outstanding is equal to $2,000 or an integral multiple of $1,000, at a price
equal to (i) 100% of the aggregate principal amount thereof; plus (ii) accrued
and unpaid interest, if any, to but not including the Fundamental Change
Repurchase Date, unless such Fundamental Change Repurchase Date falls after a
Regular Record Date and on or prior to the corresponding Interest Payment Date,
in which case the Company shall pay the full amount of accrued and unpaid
interest payable on such Interest Payment Date to the Holder of record at the
close of business on the corresponding Regular Record Date. At least 15
Business Days prior to the anticipated Effective Date of the Fundamental Change
(or if the Company does not have actual notice of a Fundamental Change, as soon
as the Company has actual notice of such Fundamental Change), the Company will
provide to all Holders of the Notes, the Trustee, the Paying Agent and the
Conversion Agent a conversion right notice (the “Fundamental
Change Conversion Right Notice”) stating:


 


(1)               if
applicable, whether the Company will adjust the Conversion Rate and related
conversion obligation pursuant to Section 8.05(e) hereof; or


 


(2)               whether
the Company expects that Holders will have the right to require the Company to
repurchase their Notes as described in this Section 4.07; and


 


(3)               that
the Holders of the Notes have the right to convert their Notes in accordance
with Section 8.01 hereof.


 


(b)                                 No
later than 15 Business Days following the Effective Date of such Fundamental
Change transaction (or if the Company does not have actual notice of a Fundamental
Change, as soon as the Company has actual notice of such Fundamental Change)
(which Fundamental Change results in the Holders of Notes having the right to
cause the Company to repurchase their Notes) the Company shall provide to all
Holders of the Notes, the Trustee, the Paying Agent and the Conversion Agent a
notice of the occurrence of the Fundamental Change and of the resulting
repurchase right (the “Fundamental Change
Repurchase Right Notice”) stating:


 


20





















 


(1)               the
events causing the Fundamental Change;


 


(2)               if
the Company has elected to adjust the Conversion Rate and related conversion
obligation as described in Section 8.05(e) hereof pursuant to a
Fundamental Change that falls under clause (2), (3) or (4) of the
definition of Fundamental Change, the Conversion Rate and any adjustments to
the Conversion Rate;


 


(3)               the
Effective Date, if applicable;


 


(4)               the
last date on which a Holder may exercise such repurchase right;


 


(5)               the
Fundamental Change repurchase price;


 


(6)               the
Fundamental Change Repurchase Date;


 


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


 


(8)               that
the Notes with respect to which the Fundamental Change Repurchase Right Notice
has been given may be converted only if the Holder thereof withdraws any
Fundamental Change Repurchase Notice previously delivered by such Holder in
accordance with the terms of this Indenture; and


 


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


 


Simultaneously
with providing such Fundamental Change Repurchase Right Notice, the Company
will issue a press release and publish the information contained in such notice
through a public medium customary for such press releases.


 


(c)                                  A
Holder may exercise its right specified in Section 4.07(a) upon delivery
of a written notice of repurchase (a “Fundamental Change
Repurchase Notice”), substantially
in the form of Exhibit B hereto, to the Paying Agent at any time
prior to 5:00 p.m., New York City time, on the second Business Day
immediately preceding the Fundamental Change Repurchase Date, stating:


 


(1)               the
Applicable Procedures or, if such Holder holds Definitive Notes, the
certificate numbers of the Notes which the Holder will deliver to be
repurchased;


 


(2)               the
portion of the principal amount of the Notes which the Holder will deliver to
be repurchased, which portion must be in principal amounts of $2,000 or an integral
multiple of $1,000 in excess thereof; and


 


(3)               that
such Notes are to be purchased by the Company as of the Fundamental Change
Repurchase Date pursuant to the terms and conditions specified in the Notes and
in this Indenture.


 


21





















 


If the Notes
are not in certificated form, the Fundamental Change Repurchase Notice must
comply with the Applicable Procedures.


 


The delivery
of such Notes (either through the surrender of Definitive Notes or through the
delivery of beneficial interests in a Global Note in accordance with the
Applicable Procedures) to the Paying Agent with, or at any time after delivery
of, the Fundamental Change Repurchase Right Notice (together with all necessary
endorsements) at the offices of the Paying Agent shall be a condition
to the receipt by the Holder of payment therefor; provided, however, that such
payment shall be so paid pursuant to this Section 4.07 only if the Notes
so delivered to the Paying Agent shall conform in all respects to the
description thereof in the related Fundamental Change Repurchase Notice. Any
repurchase by the Company pursuant to the provisions of this Section 4.07
shall be consummated by the delivery of the consideration to be received by the
Holder promptly following the later of the Fundamental Change Repurchase Date
and the time of delivery of the Notes.


 


Unless the
Company defaults in the payment for the Notes to be repurchased pursuant to this
Section 4.07, such Notes will cease to be outstanding and interest, if
any, shall cease to accrue on the Notes or portions thereof called for
repurchase on the Fundamental Change Repurchase Date (whether or not book-entry
transfer of the Notes is made or whether or not the Note is delivered to the
Paying Agent) and all other rights of the Holders of the Notes to be
repurchased pursuant to this Section 4.07 shall terminate (other than the
right to receive payment upon delivery or transfer of the Notes).


 


(d)                                 The
Company will comply with the requirements of Rule 13e-4 and Rule 14e-1
under the Exchange Act, including the filing of a Schedule TO if required,
and will comply with the requirements of any other federal and state securities
laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes by the Company as a
result of a Fundamental Change. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section 4.07,
the Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this Section 4.07
by virtue of such conflict.


 


(e)                                  On
the Fundamental Change Repurchase Date, the Company will, to the extent lawful:


 


(1)               accept
for payment all Notes or portions thereof properly tendered;


 


(2)               deposit
with the Paying Agent an amount equal to the payment in respect of all Notes or
portions of Notes properly tendered; and


 


(3)               deliver
or cause to be delivered to the Trustee the Notes so accepted together with an
Officer’s Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased by the Company in accordance with the terms
of this Section 4.07.


 


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The Paying
Agent will promptly mail to each Holder of Notes properly tendered the payment
for such Notes, and the Trustee will promptly authenticate and mail (or cause
to be transferred by book entry) to each Holder a new Note equal in principal
amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a principal amount of
$2,000 and integral multiples of $1,000 in excess thereof.


 


(f)                                    Notwithstanding
anything contained herein to the contrary, Holders of the Notes will not have
the right to require the Company to repurchase any Notes pursuant to the occurrence
of any of the events identified in clauses (2), (3) or (4) of the
definition of Fundamental Change (and the Company will not be required to
deliver the Fundamental Change Repurchase Right Notice incidental thereto), if
either:


 


(1)               the
Closing Sale Price of the Company’s Common Stock for any five Trading Days
within the period of ten (10) consecutive Trading Days ending (A) immediately
after the later of the Fundamental Change or the public announcement of the
Fundamental Change under clause (2) of the definition of Fundamental
Change; or (B) immediately before the Fundamental Change in the case of a
Fundamental Change under clauses (3) or (4) of the definition of
Fundamental Change, equals or exceeds 105% of the Applicable Conversion Price
of the Notes in effect on each of those five Trading Days; or


 


(2)               at
least 90% of the consideration paid for the Company’s Common Stock (excluding
cash payments for fractional shares, cash payments made pursuant to dissenters’
appraisal rights and cash dividends) in a Fundamental Change under clause (2) and/or
clause (3) of the definition of Fundamental Change consists of shares of
common stock traded on the NYSE or another U.S. national securities exchange or
quoted on NASDAQ or another established automated over-the-counter trading
market in the United States (or will be so traded or quoted immediately following
the merger or consolidation) and, as a result of the merger or consolidation,
the Notes become convertible into such shares of such common stock.


 


(g)                                 Upon
receipt by the Paying Agent of a Fundamental Change Repurchase Notice specified
in Section 4.07(c) hereof, the Holder of the Notes in respect of
which such Fundamental Change Repurchase Notice was given shall (unless such
Fundamental Change Repurchase Notice is withdrawn as specified in Section 4.07(h) hereof)
thereafter be entitled to receive solely the payment with respect to such Notes.
Such payment shall be paid to such Holder, subject to receipts of cash by the
Paying Agent, promptly following the later of (a) the Fundamental Change
Repurchase Date (provided the conditions in Section 4.07(c) have
been satisfied) and (b) the time of book-entry transfer or the delivery of
such Notes to the Paying Agent by the Holder thereof in the manner required by Section 4.07(c).
Notes in respect of which a Fundamental Change Repurchase Notice has been given
by the Holder thereof may not be converted pursuant to Article 8 on or
after the date of the delivery of such Fundamental Change Repurchase Notice
unless such Fundamental Change Repurchase Notice has first been validly
withdrawn as specified in Section 4.07(h) hereof.


 


23





















 


(h)                                 Notwithstanding
anything contained herein to the contrary, any Holder delivering to the Paying
Agent the Fundamental Change Repurchase Notice contemplated by Section 4.07(c) hereof
shall have the right to withdraw such Fundamental Change Repurchase Notice, in
whole or in part, by means of a written notice of withdrawal delivered to the
Paying Agent at any time prior to 5:00 p.m., New York City time, on the
second Business Day immediately preceding the Fundamental Change Repurchase
Date, specifying:


 


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


 


(2)               the
certificate numbers of the Definitive Notes, if any, in respect of which such
notice of withdrawal is being submitted; and


 


(3)               the
principal amount, if any, of such Notes which remain subject to the original
Fundamental Change Repurchase Notice and which have been or will be delivered
for repurchase by the Company.


 


(i)                                     The
Trustee shall be under no obligation to ascertain the occurrence of a
Fundamental Change or to give notice with respect thereto. The Trustee may
conclusively assume, in the absence of written notice to the contrary from the
Company, that no Fundamental Change has occurred.


 


Section 4.08.                                       Offer
to Repurchase on November 15, 2010, 2015 and 2020.


 


(a)                                  On
each of November 15, 2010, 2015 and 2020 (the “Repurchase
Dates”), each Holder may require the Company to repurchase the Notes
held by such Holder, and the Company shall repurchase on each of the Repurchase
Dates, any or all Notes submitted for repurchase for cash, at a price equal to
100% of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, to but not including the applicable Repurchase Date.


 


(b)                                 In
order to exercise the right to require the Company to repurchase the Notes on
any of the Repurchase Dates:


 


(i)                  the Holder of any Definitive Note to
be repurchased must:  (i) complete
and manually sign a notice substantially in the form of Exhibit D
hereto (the “Repurchase Notice”); (ii) deliver
the Repurchase Notice and the Definitive Note to the Trustee and the Company;
and (iii) if required, furnish appropriate endorsements and transfer documents;
or


 


(ii)               the holder of beneficial interests in any
Global Note to be repurchased must comply with the Applicable Procedures to
cause the beneficial interests in such Global Note to be delivered to the
Trustee,


 


24





















 


and in either
case, the Holder of a Definitive Note or holder of beneficial interests in a
Global Note will, if required, pay all transfer or similar taxes that the
Company is not otherwise required to pay pursuant to Section 4.06 hereof.


 


The Holder of
a Definitive Note or holder of a beneficial interest in a Global Note must
complete the requirements of this Section 4.08(b) no later than the
close of business on the Business Day prior to the applicable Repurchase Date
(the “Repurchase Notice Deadline”) for purposes of this Article 4. On and after the Repurchase
Notice Deadline, the redemption by such Holder or holder, as set forth in the
Repurchase Notice, shall become irrevocable.


 


Notes shall be
deemed to have been repurchased immediately prior to the close of business on
the Repurchase Date, and at such time the rights of the Holders of such Notes
as Holders shall cease, and the Person or Persons entitled to receive the cash
payment payable upon repurchase shall be treated for all purposes as the payee
or payees of such payment at such time. Following any Repurchase Date, the
Company shall satisfy its obligations with respect to such repurchase by
either:


 


(i)                                     delivering
to the Trustee, for delivery to the Holder (or such other Person as may be
named in the relevant Repurchase Notice), the cash payment payable upon such
repurchase; or


 


(ii)                                  delivering
to such Holder (or such other Person as may be named in the relevant Repurchase
Notice) the cash payment payable upon such repurchase in accordance with the
Applicable Procedures.


 


ARTICLE FIVE



SUCCESSORS


 


Section 5.01.                                       Merger,
Consolidation, or Sale of Assets.


 


The Company
shall not, directly or indirectly, consolidate or merge with or into any other
Person in a transaction in which the Company is not the surviving corporation
or convey, transfer or lease the properties and assets of the Company
substantially as an entirety to any successor Person, unless:


 


(1)               the
successor Person, if any, is:


 


(A)                              a corporation organized
and existing under the laws of the United States, any state of the United States,
or the District of Columbia, and


 


(B)                                such Person assumes the
Company’s obligations on the Notes and under this Indenture pursuant to
agreements reasonably satisfactory in form and substance to the Trustee;


 


25





















 


(2)               immediately
after giving effect to the transaction, no Default will have occurred and be
continuing; and


 


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


 


This Section 5.01
will not apply to a merger of the Company with an Affiliate solely for the
purpose of reincorporating the Company in another jurisdiction.


 


Section 5.02.                                       Successor
Corporation Substituted.


 


Upon any consolidation
or merger, or any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the properties or assets of the
Company in a transaction that is subject to, and that complies with the
provisions of, Section 5.01 hereof, the successor Person formed by such
consolidation or into or with which the Company is merged or to which such
sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, assignment, transfer, lease, conveyance or
other disposition, the provisions of this Indenture referring to the “Company”
shall refer instead to the successor Person and not to the Company), 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; provided, however, that the predecessor Company shall not be relieved from the
obligation to pay the principal of and interest on the Notes except in the case
of a sale of all of the Company’s assets in a transaction that is subject to,
and that complies with the provisions of, Section 5.01 hereof.


 


ARTICLE SIX



DEFAULTS AND REMEDIES


 


Section 6.01.                                       Events
of Default.


 


Each of the
following is an “Event of Default”:


 


(1)               a
default in the payment of any installment of interest upon any of the Notes as
and when the same shall become due and payable, and continuance of such default
for a period of 30 days;


 


(2)               default
in the payment of all or any part of the principal of any of the Notes as and
when the same shall become due and payable at Maturity;


 


26





















 


(3)               default
on the part of the Company in the performance, or breach by the Company, of any
other covenant or agreement on the part of the Company set forth in the Notes
or in this Indenture (other than a covenant or agreement in respect of which a
default or breach by the Company is specifically dealt with in this Section 6.01
and other than those which have been included in the Notes, if any, or this
Indenture solely for the benefit of Securities of any series other than the
series of the Notes), and continuance of such default or breach without cure or
waiver for a period of 90 days after there has been given, by registered
or certified mail, to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the Notes at the
time Outstanding, a written notice specifying such failure and requiring the
same to be remedied;


 


(4)               the
Company fails to pay the purchase price of any Note when due (including,
without limitation, on any Repurchase Date, the delivery of cash as a return of
principal, any cash in lieu of fractional shares, and any shares, as the case
may be, upon conversion of Notes within the time period required by this
Indenture);


 


(5)               the
Company fails to provide timely notice of a Fundamental Change, if required by
this Indenture, if such failure continues for 30 days after notice to the
Company of its failure to do so;


 


(6)               any
indebtedness for money borrowed by the Company or one of its Significant
Subsidiaries (all or substantially all of the outstanding voting securities of
which are owned, directly, or indirectly, by the Company) in an aggregate
outstanding principal amount in excess of $100.0 million is not paid at final
maturity or upon acceleration and such indebtedness is not discharged, or such
acceleration is not cured or rescinded, within 10 days after written notice as
provided in Section 6.02 of this Indenture, provided,
however, that in the event the Notes
receive at any later date a rating of BBB- or greater by Standard &
Poor’s Corporation (“S&P”) or
Baa3 or greater by Moody’s Investors Service, Inc. (“Moody’s”) (or if such ratings are not
issued for the Notes by S&P or Moody’s, the corporate rating or successor
equivalent (in the case of S&P) or the senior implied rating or successor
equivalent (in the case of Moody’s) of the Company), then this clause (6) shall
not be applicable and shall be of no further force and effect upon and after
the date the Notes receive any such rating;


 


(7)               failure
by the Company or any of its Significant Subsidiaries (all or substantially all
of the outstanding voting securities of which are owned, directly, or
indirectly, by the Company)  to pay final
and non-appealable judgments entered by a court or courts of competent
jurisdiction, the aggregate uninsured or unbonded portion of which is at least
$100.0 million, if the judgments are not paid, discharged or stayed within 60
days; provided, however,
that in the event the Notes receive at any later date a rating of BBB- or
greater by S&P or Baa3 or greater by Moody’s (or if such ratings are not
issued for the Notes by S&P or Moody’s, the corporate rating or successor
equivalent (in the case of S&P) or the senior implied rating or successor
equivalent (in


 


27





















 


the case of
Moody’s) of the Company), then this clause (7) shall not be applicable and
shall be of no further force or effect upon and after the date the Notes
receive such rating;


 


(8)               the
Company or any of its Subsidiaries that is a Significant Subsidiary or any
group of Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:


 


(A)                              commences a voluntary
case,


 


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


 


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


 


(D)                               makes a general
assignment for the benefit of its creditors; and


 


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


 


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


 


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


 


(C)                                orders the liquidation
of the Company or any of its Subsidiaries that is a Significant Subsidiary or
any group of Subsidiaries of the Company that, taken together, would constitute
a Significant Subsidiary;


 


and the order or decree remains unstayed and
in effect for 90 consecutive days.


 


The Events of
Default set forth in this Section 6.01 supersede and replace any Events of
Default applicable to the Notes set forth in Section 6.01 of the Base
Indenture, and
such Events of Default under the Base Indenture shall not at any time apply to
the Notes.


 


28





















 


Section 6.02.                                       Acceleration.


 


(a)                                  In
the case of an Event of Default specified in clause (8) or (9) of Section 6.01
hereof with respect to the Company, all outstanding Notes will become due and
payable immediately without further action or notice. If any other Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately. Upon any such declaration, the Notes
shall become due and payable immediately.


 


(b)                                 Notwithstanding
the foregoing, if an Event of Default specified in clause (6) of Section 6.01
occurs resulting in a declaration of acceleration of the Notes, such
declaration of acceleration shall be automatically annulled if such Event of Default
triggering such declaration of acceleration pursuant to clause (6) of Section 6.01
shall have been remedied or cured by the Company or any of its Subsidiaries or
waived by the holders of the relevant indebtedness within 60 days of the
declaration of acceleration with respect thereto and if (i) the annulment
of the acceleration of the Notes would not conflict with any judgment or decree
of a court of competent jurisdiction and (ii) all existing Events of
Default, except nonpayment of principal, premium or interest on the Notes that
became due and payable solely because of the acceleration of the Notes, have
been cured or waived.


 


(c)                                  At any time after a declaration of
acceleration with respect to the Notes as described in Section 6.02(a),
the Holders of a majority in aggregate principal amount of the outstanding
Notes may rescind and cancel such declaration and its consequences:  (i) if the rescission would not conflict
with any judgment or decree of a court of competent jurisdiction; (ii) if
all existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration; (iii) to
the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid; and (iv) if the
Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements and advances. No such rescission shall
affect any subsequent Default or impair any right consequent thereto.


 


Section 6.03.                                       Other
Remedies.


 


If an Event of
Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.


 


The Trustee
may maintain a proceeding even if it does not possess any of the Notes or does
not produce any of them in the proceeding. A delay or omission by the Trustee
or any Holder of a Note in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. All remedies are cumulative to the
extent permitted by law.


 


29





















 


Section 6.04.                                       Waiver
of Past Defaults.


 


Holders of not
less than a majority in aggregate principal amount of the then outstanding
Notes by notice to the Trustee may on behalf of the Holders of all of the Notes
waive an existing Default and its consequences hereunder, except a continuing
Default in:


 


(1)               the payment of the principal of, or
interest on, the Notes (including in connection with an offer to purchase); provided, however, that the Holders of a majority in aggregate principal
amount of the then outstanding Notes may rescind an acceleration and its
consequences, including any related payment default that resulted from such acceleration;


 


(2)               the conversion of any Note into shares
of Common Stock in accordance with the provisions of such Note and this
Indenture; or


 


(3)               compliance with any of the provisions of
this Indenture that would require 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 arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.


 


Section 6.05.                                       Control
by Majority.


 


Holders of a
majority in aggregate principal amount of the then outstanding Notes may direct
the time, method and place of conducting any proceeding for exercising any
remedy available to the Trustee or exercising any trust or power conferred on
it. However, the Trustee may refuse to follow any direction that conflicts with
law or this Indenture that the Trustee determines may be unduly prejudicial to
the rights of other Holders of Notes or that may involve the Trustee in personal
liability.


 


Section 6.06.                                       Limitation
on Suits.


 


A Holder may
pursue a remedy with respect to this Indenture or the Notes only if:


 


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


 


(2)               Holders of at least 25% in aggregate
principal amount of the then outstanding Notes make a written request to the
Trustee to pursue the remedy as Trustee;


 


30





















 


(3)               such Holder or Holders offer and, if
requested, provide to the Trustee security or indemnity reasonably satisfactory
to the Trustee against any loss, liability or expense;


 


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


 


(5)               during such 60-day period, Holders of a
majority in aggregate principal amount of the then outstanding Notes do not
give the Trustee a direction inconsistent with such request.


 


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


 


Section 6.07.                                       Rights
of Holders of Notes To Receive Payment or Effect Conversion.


 


Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal and interest on the Note, on or after the
respective due dates expressed in the Note (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates or the right to convert Notes in accordance with
Article 8 of this Indenture, shall not be impaired or affected without the
consent of such Holder.


 


Section 6.08.                                       Collection
Suit by Trustee.


 


If an Event of
Default specified in Section 6.01(1) or (2) hereof occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of and interest remaining unpaid on, the Notes and interest on
overdue principal and, to the extent lawful, interest and such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.


 


Section 6.09.                                       Trustee
May File Proofs of Claim.


 


The Trustee is
authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Holders of the Notes allowed in
any judicial proceedings relative to the Company (or any other obligor upon the
Notes), its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses,


 


31





















 


disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 of the Base Indenture. To the extent that
the payment of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07 of the Base Indenture out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.


 


Section 6.10.                                       Priorities.


 


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


 


First:  to the Trustee, its agents and attorneys for
amounts due under Section 7.07 of the Base Indenture, including payment of
all compensation, expenses and liabilities incurred, and all advances made, by
the Trustee and the costs and expenses of collection;


 


Second:  to Holders of Notes for amounts due and
unpaid on the Notes for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for
principal and interest, respectively; and


 


Third:  to the Company or such party as a court of
competent jurisdiction shall direct.


 


The Trustee
may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10. If a record date is fixed, the Trustee
shall send, by first class mail, electronically or by any other means approved
by the Trustee to the Holders of the Notes of record a notice at least 30 days
but not more than 60 days before the payment date. Such notice shall
state:  (1) that a payment is being
made pursuant to this Section 6.10, (2) the relevant Default and the
circumstances giving rise to the collection of money pursuant to this Section 6.10,
(3) the payment date and (4) the amount of such payment per $1,000 of
Notes. Notwithstanding the foregoing, if the payment pursuant to this Section 6.10
is in respect of principal on the Notes, then such principal payment will be
conducted in accordance with the provisions set forth in Sections 3.02, 3.04
and 3.06 hereof.


 


Section 6.11.                                       Undertaking
for Costs.


 


In any suit
for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court
in its


 


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discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys’ fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by
the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof,
or a suit by Holders of more than 10% in aggregate principal amount of the then
outstanding Notes.


 


ARTICLE SEVEN



APPOINTMENT OF U.S. BANK NATIONAL ASSOCIATION


 


Section 7.01.                                       Appointment
of U.S. Bank National Association.


 


The Company
hereby appoints the Trustee as trustee under the Indenture with respect to the
Notes. The Company shall execute and deliver such further instruments and do
such other things as the Trustee may reasonably require to more fully and
certainly vest and confirm in the Trustee all the rights, trusts, and powers
hereby delivered and confirmed upon the Trustee.


 


Section 7.02.                                       Acceptance
of Trustee.


 


The Trustee
hereby accepts its appointment as trustee with respect to the Notes and shall
hereby be vested with all of the authority, rights, powers, trusts, immunities,
duties, benefits and obligations of a Trustee under the Indenture.


 


Section 7.03.                                       Qualification
of Trustee.


 


The Trustee
hereby represents and warrants to the Company that the Trustee is qualified
under the provisions of Section 310 of the Trust Indenture Act of 1939, as
amended, and Article Seven of the Base Indenture to act as trustee with respect
to the Notes under the Indenture.


 


ARTICLE EIGHT



CONVERSION


 


Section 8.01.                                       Conversion
Right and Conversion Rate.


 


(a)                                  Subject
to and upon compliance with the provisions of this Article 8, at the
option of the Holder thereof, any portion of the principal amount of any Note
that is an integral multiple of $1,000 (provided that the principal amount of
such security to remain outstanding after such conversion is equal to $2,000)
may be converted into cash and, under certain circumstances set forth in Section 8.02
hereof, fully paid and non-assessable shares of Common Stock at the Conversion
Rate, determined as hereinafter provided, in effect at the


 


33





















 


time of conversion. The Holders
of the Notes may surrender Notes for conversion at the Applicable Conversion
Rate prior to Maturity under any of the following circumstances:


 


(1)               prior to November 15, 2024, during
any Conversion Period, if the Closing Sale Price of the Common Stock for at
least 20 Trading Days in the 30 consecutive Trading Day period ending on the
first day of such Conversion Period is greater than 120% of the Applicable
Conversion Price on the first day of the Conversion Period (the “Sale Price Condition”);


 


(2)               prior to November 15, 2024, during
the five consecutive Business Day period following any five consecutive Trading
Day period in which the Trading Price of a Note for each day of that trading
period was less than 95% of the Closing Sale Price of the Common Stock on such
corresponding Trading Day as multiplied by the Applicable Conversion Rate (the “Trading Price Condition”);


 


(3)               if the Notes are called for redemption,
during the period commencing with the date that notice of redemption is first
sent to Holders pursuant to Section 3.02(b) and ending at the close
of business on the Business Day preceding the Redemption Date; provided that if less than all the Notes are called for
redemption, only those Notes called for redemption may be converted;


 


(4)               at any time on or after November 15,
2024; or


 


(5)               upon the occurrence of specified
corporate transactions set forth in Section 8.07 hereof.


 


(b)                                 If
any of the events described in clauses (2), (3) or (4) of the
definition of Fundamental Change occurs, Holders may surrender any Notes for
conversion during the period starting on the 15th Business Day prior
to the anticipated Effective Date of the applicable Fundamental Change and
ending at the close of business on the 15th Business Day after the
actual Effective Date of such Fundamental Change transaction (or such shorter
period as may be applicable if the Company did not have actual notice of the
Effective Date of a Fundamental Change 15 Business Days before the Effective
Date) or, if such transaction results in Holders having a right to require the
Company to repurchase the Notes, the Business Day preceding the Fundamental
Change Repurchase Date (as specified in the Fundamental Change Repurchase Right
Notice). In connection with such a Fundamental Change and in accordance with Section 4.07
hereof, the Company will send Holders a Fundamental Change Conversion Right
Notice at least 15 Business Days prior to the anticipated Effective Date of the
Fundamental Change (or such shorter period as may be applicable if the Company
did not have actual notice of the Effective Date 15 Business Days before the
Effective Date) in which the Company will notify Holders that, among other
things, they will have the right to convert the Notes. Upon such a conversion
in connection with any of the events described in clauses (2), (3) or (4) of
the definition of Fundamental Change, Holders will receive any increase in the
conversion rate pursuant to Section 8.05(e) hereof if such conversion
occurs within the time


 


34





















 


frames specified therein. Notwithstanding
the foregoing, if the Effective Date of the Fundamental Change identified in
the Conversion Right Notice does not occur within 20 Business Days of the
anticipated Effective Date specified in such notice, then the right of Holders
to convert the Notes will terminate and, to the extent such Fundamental Change
is expected to occur at a later date, the Company again shall comply with the
requirements of this Section 8.01(b) at such later date in connection
with such Fundamental Change. If a Fundamental Change occurs, Holders may also
have the right, at the option of the Holders, to require the Company to
repurchase all or a portion of the Notes in accordance with Section 4.07
hereof in lieu of conversion pursuant to this Section 8.01(b). Upon determination
by the Company, the Conversion Agent or the Trustee that the Holders of the
Notes are entitled to convert the Notes in accordance with this Section 8.01(b),
the Company shall issue a press release and publicize the information on its
website.


 


(c)                                  In
case any Holder of Notes exercises its right to require the Company to
repurchase such Notes in accordance with Section 4.07 hereof, the
conversion right in respect of the Note, or portion thereof so submitted, shall
expire at the close of business on the last Business Day immediately preceding
the Fundamental Change Repurchase Date or such earlier date as the Notes are
presented for purchase, unless the Company defaults in making the payment due
upon repurchase, in which case such conversion right shall terminate at the
close of business on the date the default is cured and the Notes are purchased
by the Company (in each case subject to any Applicable Procedures with respect
to any Note). If any Holder has submitted Notes for repurchase upon a Fundamental
Change in accordance with Section 4.07 hereof, such Notes submitted for
repurchase may be converted only if such Holder withdraws the election for repurchase
in accordance with Section 4.07 hereof.


 


(d)                                 Notes
converted into shares of Common Stock shall initially will be converted at a Conversion
Price of $5.90 per share. The rate at which shares of Common Stock shall be
delivered upon conversion (herein called the “Conversion
Rate”) shall be initially 169.4341 shares of Common Stock for each
$1,000 principal amount of Notes. The Conversion Rate will be adjusted under
the circumstances provided in Section 8.05. All calculations under this Article shall
be made to the nearest 1/10th cent or to the nearest 1/10,000ths of a share, as
the case may be.


 


(e)                                  The
Conversion Agent shall determine whether the Sale Price Condition or the
Trading Price Condition has been satisfied in accordance with Section 8.11(a) and
notify the Company and the Trustee.


 


Section 8.02.                                       Conversion
Consideration.


 


(a)                                  Upon
surrendering any Notes for conversion, the Holder of such Notes shall receive,
in respect of each $1,000 principal amount of Notes:


 


(1)               cash in the amount equal to the lesser
of:


 


(A)                              the principal amount of
each Note, or


 


35





















 


(B)                                the Conversion Value;
and


 


(2)               to the extent the Conversion Value
exceeds $1,000, a number of shares of Common Stock (the “Residual
Value Shares”) equal to the
sum of the Daily Trading Share Amounts for each of the 20 consecutive Trading
Days in the Applicable Conversion Reference Period; provided, however, that the
Company shall pay cash in lieu of fractional shares otherwise issuable upon
conversion of the Notes in accordance with Section 8.04.


 


If a Holder
receives Common Stock upon conversion of Notes, such Holder will also receive
the associated rights under any stockholder rights plan that the Company may
adopt, whether or not the rights have separated from the Common Stock at the
time of conversion unless, prior to conversion, the rights have expired,
terminated or been exchanged.


 


(b)                                 The
Company may elect to pay cash to Holders of Notes surrendered for conversion in
lieu of all or a portion of the Residual Value Shares issuable upon conversion
of such Notes. Upon such election, the Company shall provide notice to the
relevant Holders through the Trustee stating the amount to be satisfied in cash
(expressed as a percentage of each Residual Value Share that shall be paid in
cash in lieu of Common Stock) at any time on or before the date that is three
Business Days following receipt of any Holder’s Conversion Notice (the “Cash Settlement Notice Period”). If the Company timely
elects to pay cash for any portion of the Residual Value Shares otherwise
issuable to such Holder, such Holder may retract the Conversion Notice at any
time during the two Business Day period immediately following the Cash
Settlement Notice Period (the “Conversion Retraction Period”).
If the Company does not make such an election, no retraction can be made (and a
Conversion Notice shall be irrevocable). In addition, if the Company chooses to
settle all or any portion of the Residual Value Shares in cash in connection
with conversions within 20 days prior to the stated Maturity date of the Notes,
the Company shall send, on or prior to such stated Maturity date, a single
notice to the Trustee of the Residual Value Shares to be satisfied in cash
(expressed as a percentage of each Residual Value Share that shall be paid in
cash in lieu of Common Stock).


 


The amount of
cash payable in respect of each Residual Value Share otherwise issuable upon
conversion shall equal the sum of the Residual Cash Value for such share calculated
for each day of the Applicable Conversion Reference Period.


 


(c)                                  The
Company will determine the Conversion Value, the Daily Trading Share Amount,
the calculation of the excess of the Conversion Value over the principal amount
and the number of shares of Common Stock deliverable to Holders upon conversion
in satisfaction of such excess (assuming that the Company does not elect to pay
such excess in cash in accordance with clause (b) above).


 


36





















 


Section 8.03.                                       Exercise
of Conversion Right.


 


(a)                                  In
order to exercise the conversion right:


 


(1)               the Holder of any Definitive Note to be
converted must:  (i) complete and
manually sign a notice of conversion substantially in the form of Exhibit C
hereto (the “Conversion Notice”); (ii) deliver
the Conversion Notice and the Definitive Note to the Conversion Agent and the
Company; and (iii) if required, furnish appropriate endorsements and
transfer documents; or


 


(2)               the holder of beneficial interests in
any Global Note to be converted must comply with the Applicable Procedures to
cause the beneficial interests in such Global Note to be delivered to the
Conversion Agent,


 


and in either
case, the Holder of a Definitive Note or holder of beneficial interests in a
Global Note will, if required, pay all transfer or similar taxes that the
Company is not otherwise required to pay pursuant to Section 4.06 hereof
and, if required pursuant to Section 8.03(b) hereof, pay funds equal
to the interest payable on the next Interest Payment Date.


 


The date on
which a Holder of a Definitive Note or holder of a beneficial interest in a
Global Note completes the requirements of this Section 8.03(a) shall
be deemed to be the date of conversion (the “Conversion
Date”) for purposes of this Article 8.
On and after the Conversion Date, the conversion by such Holder or holder, as
set forth in the Conversion Notice, shall become irrevocable.


 


The Company
shall deliver shares of Common Stock, if any, and cash deliverable upon
conversion to the Conversion Agent no later than the third Business Day
following the Conversion Reference Period.


 


(b)                                 Each
Definitive Note surrendered (in whole or in part), or beneficial interest in
any Global Note surrendered to the Conversion Agent, for conversion during the
Record Date Period shall be accompanied by payment by the Holder in same-day
funds or other funds acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the principal amount of such
Note (or part thereof, as the case may be) being surrendered for conversion; provided, however, that no such payment by
the Holder need be made in the case of any Note or portion thereof that is (x)
subject to repurchase following a Fundamental Change on a Fundamental Change
Repurchase Date or (y) subject to redemption on a Redemption Date, in each
case, occurring during the Record Date Period (or if such interest payment date
is not a Business Day, the second Business Day after the interest payment date)
and, as a result, the right to convert such Note would otherwise terminate in
such Record Date Period if not exercised. The interest payable by the Company
on such Interest Payment Date with respect to any Note (or portion thereof, if
applicable) that is surrendered for conversion during the Record Date Period
shall be paid to the Holder of such Note as of such Regular Record Date in an
amount equal to the interest that would have been payable on such Note if such
Note had been converted as of the close of business on such Interest Payment
Date.


 


37





















 


Interest payable on any
Interest Payment Date in respect of any Note surrendered for conversion on or
after such Interest Payment Date shall be paid to the Holder of such Note as of
the Regular Record Date immediately prior to such Interest Payment Date, notwithstanding
the exercise of the right of conversion. Except as provided in this Section 8.03(b),
no cash payment or adjustment shall be made upon any conversion on account of
any interest accrued from the Interest Payment Date immediately prior to the Conversion
Date, in respect of any Note (or part thereof, as the case may be) surrendered
for conversion, or on account of any dividends on the Common Stock issued upon
conversion. The Company’s delivery to the Holder of the cash payment and the
number of shares of Common Stock, if any (and cash in lieu of fractions thereof
in accordance with Section 8.04 hereof), into which a Note is convertible
will be deemed to satisfy all of the Company’s obligations to pay the principal
of and interest, if any, on the Note. Accordingly, accrued but unpaid interest,
if any, will be deemed to be paid in full rather than canceled, extinguished or
forfeited.


 


(c)                                  Notes
shall be deemed to have been converted immediately prior to the close of
business on the Conversion Date, and at such time the rights of the Holders of
such Notes as Holders shall cease, and the Person or Persons entitled to
receive the cash payment and shares of Common Stock, if any, payable and
issuable upon conversion shall be treated for all purposes as the payee or
payees of such payment and the record holder or holders of such Common Stock,
if applicable, at such time. Following any Conversion Date, the Company shall
satisfy its obligations with respect to such conversion by either:


 


(1)               delivering to the Trustee, for delivery
to the Holder (or such other Person as may be named in the relevant Conversion
Notice), the cash payment, together with certificates representing the number
of shares of Common Stock, if any, payable and issuable upon such conversion;
or


 


(2)               delivering to such Holder (or such other
Person as may be named in the relevant Conversion Notice) the cash payment,
together with such number of shares of Common Stock, if any, payable and
issuable upon such conversion in accordance with the Applicable Procedures,


 


in each case,
together with payment in lieu of any fractional shares, if any, as provided in Section 8.04
(such cash payment and delivery of shares, if any, the “Settlement”); provided that shares of Common Stock only will be
deliverable in certificated form if (i) the Holder or holder that is
exercising such conversion has specifically requested in writing that delivery
be in certificates or (ii) the Company determines that delivery is
required in certificated shares either because (A) delivery to the Holder (or
such other Person named in the relevant Conversion Notice) is not practicable
in accordance with the Applicable Procedures or (B) in the opinion of
legal counsel, delivery is required in certificated form in order to comply
with the requirements of applicable securities laws. Settlement shall occur
promptly (but in no event more than three Business Days) following the
termination of the Applicable Conversion Reference Period.


 


38





















 


(d)                                 In
the case of any Note which is converted in part only, upon such conversion the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Note or Notes of
authorized denominations in an aggregate principal amount equal to the
unconverted portion of the principal amount of such Note. A Note may be
converted in part, but only if the principal amount of such Note to be converted
is any integral multiple of $1,000 and the principal amount of such security to
remain outstanding after such conversion is equal to $2,000 or any integral
multiple of $1,000 in excess thereof.


 


Section 8.04.                                       Fractions
of Shares.


 


No fractional
shares of Common Stock shall be issued upon conversion of any Note or Notes. If
more than one Note shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Notes (or specified portions thereof) so surrendered. The number of fractional
shares to be paid, if any, will be valued by the Closing Sale Price of the
Common Stock on the first Trading Day of the Applicable Conversion Reference
Period’. Instead of any fractional share of Common Stock that would otherwise
be issuable upon conversion of any Note or Notes (or specified portions
thereof), the Company shall calculate and pay a cash adjustment for the
fractional amount (calculated to the nearest 1/10,000th of a share) based upon
the applicable Stock Price.


 


Section 8.05.                                       Adjustment
of Conversion Rate.


 


(a)                                  The
Conversion Rate shall be subject to adjustment, without duplication, from time
to time upon the occurrence of any of the following:


 


(1)               Stock Dividends in Common Stock. In
case the Company shall pay or make a dividend or other distribution on shares
of Common Stock payable exclusively in shares of Common Stock, the Conversion
Rate in effect at the opening of business on the day following the date fixed
for the determination of stockholders entitled to receive such dividend or
other distribution shall be increased by dividing such Conversion Rate by an
adjustment factor equal to a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of business on the
date fixed for such determination and the denominator shall be the sum of such
number of shares and the total number of shares constituting such dividend or
other distribution, such increase to become effective immediately after the
opening of business on the day following the date fixed for such determination.
If, after any such date fixed for determination, any dividend or distribution
is not in fact paid, the Conversion Rate shall be immediately readjusted,
effective as of the date the Company’s Board of Directors determines not to pay
such dividend or distribution, to the Conversion Rate that would have been in
effect if such determination date had not been fixed. For the purposes of this
clause (1), the number of shares of Common Stock at any time outstanding shall
not include shares held in the treasury of the Company. The Company


 


39





















 


will not pay any dividend or make any distribution on shares of Common
Stock held in the treasury of the Company.


 


(2)               Issuance of Rights or Warrants. In
case the Company shall issue rights or warrants to all or substantially all
holders of its Common Stock entitling them for a period expiring within 60 days
from the date of issuance of the rights or warrants to subscribe for or
purchase shares of Common Stock at a price per share less than the Current
Market Price per share of Common Stock on the date fixed for the determination
of stockholders entitled to receive such rights or warrants (other than any
rights, options or warrants that (x) by their terms will also be issued to
any Holder upon conversion of a Note into shares of Common Stock without any
action required by the Company or any other Person or (y) are distributed to
shareholders of the Company upon a merger or consolidation in compliance with Section 8.09
hereof and taking into consideration any consideration received by the Company
for such rights or warrants and any amount payable on exercise or conversion
thereof, with the value of such consideration, if other than cash, to be
determined by the Company), then the Conversion
Rate in effect at the opening of business on the day following the date fixed
for such determination shall be increased by dividing such Conversion Rate by
an adjustment factor equal to a fraction:


 


(A)                              the numerator of which
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of shares of
Common Stock that the aggregate of the offering price of the total number of
shares of Common Stock so offered for subscription or purchase would purchase
at such Current Market Price; and


 


(B)                                the denominator of
which shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of shares of
Common Stock so offered for subscription or purchase,


 


such increase to become effective immediately
after the opening of business on the day following the date fixed for such determination.
If, after any such date fixed for determination, any such rights, options or
warrants are not in fact issued, or are not exercised prior to the expiration
thereof, the Conversion Rate shall be immediately readjusted, effective as of
the date such rights, options or warrants expire, or the date the Company’s
Board of Directors determines not to issue such rights, options or warrants, to
the Conversion Rate that would have been in effect if the unexercised rights,
options or warrants had never been granted or such determination date had not
been fixed, as the case may be, and as a result no additional shares are
delivered or issued pursuant to such rights or warrants. For the purposes of
this clause (2), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company. The Company will
not issue any rights, options or warrants in respect of shares of Common Stock
held in the treasury of the Company.


 


40





















 


(3)               Stock Splits and Combinations. (i) In
case outstanding shares of Common Stock shall be subdivided or split into a
greater number of shares of Common Stock, then the Conversion Rate in effect at
the opening of business on the day following the day upon which such subdivision
or split becomes effective shall be proportionately increased; (ii) in
case outstanding shares of Common Stock shall be combined or reclassified into
a smaller number of shares of Common Stock, then the Conversion Rate in effect
at the opening of business on the day following the day upon which such
combination or reclassification becomes effective shall be proportionately
reduced; and (iii) in case the Company issues any shares of its Capital
Stock in a reclassification of the outstanding shares of Common Stock, then the
Conversion Rate in effect at the opening of business on the day following the
day upon which such reclassification becomes effective shall be proportionately
applied to the new class of shares of Capital Stock of the Company into which
the Common Stock was reclassified; in each case, such increase, reduction or
reclassification, as the case may be, to become effective immediately after the
opening of business on the Business Day following the day upon which such
subdivision, combination or reclassification becomes effective.


 


(4)               Distribution of Indebtedness,
Securities or Assets. In case the Company shall, by dividend or otherwise,
distribute to all or substantially all holders of its Common Stock evidences of
its indebtedness, securities, assets or rights, options or warrants to purchase
the Company’s securities (provided that
if these rights are only exercisable upon the occurrence of specified
triggering events, then the conversion rate will not be adjusted until the
triggering events occur), but excluding (i) any dividends or distributions
referred to in clause (1) of this Section 8.05(a), (ii) any
rights or warrants referred to in clause (2) of this Section 8.05(a),
(iii) any dividends or distributions paid exclusively in cash described in
clause (6), (7) or (8) of this Section 8.05(a) (the “Distributed Assets”), then (other than in the case as described in
clause (5) of this Section 8.05(a)) the Conversion Rate shall
be adjusted so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect immediately prior to the close of business on the
record date fixed for the determination of stockholders entitled to receive
such distribution by adjustment factor equal to a fraction:


 


(A)                              the numerator of which
shall be the Current Market Price per share of Common Stock; and


 


(B)                                the denominator of
which shall be the Current Market Price per share of Common Stock on the date
fixed for such determination minus the Fair Market Value, as determined by the
Company’s Board of Directors, whose determination in good faith shall be
conclusive and described in a Board Resolution filed with the Trustee, of the
portion of those Distributed Assets applicable to one share of Common Stock,
such adjustment to become effective immediately after the record date fixed for
the determination of stockholders entitled to receive such distribution.


 


41





















 


If after any such date fixed for
determination, any such distribution is not in fact made, the Conversion Rate
shall be immediately readjusted, effective as of the date the Company’s Board
of Directors determines not to make such distribution, to the Conversion Rate
that would have been in effect if such determination date had not been fixed.


 


Notwithstanding
the foregoing, in cases where (i) the Fair Market Value per share of the
Distributed Assets equals or exceeds the Current Market Price of the Common
Stock, or (ii) the Current Market Price of the Common Stock exceeds the
Fair Market Value per share of the Distributed Assets by less than $1.00, in
lieu of the adjustment set forth in this Section 8.05(a)(4), Holders will
receive upon conversion, in addition to shares of Common Stock, if any, the
amount and type of Distributed Assets such Holders
would have received upon conversion of such Holders’ Notes if they had been
converted immediately prior to the record date for such distribution.


 


(5)               Spin-Offs. In case the Company
shall distribute to all or substantially all holders of its Common Stock shares
of Capital Stock of any class or series, or similar Equity Interests, of or
relating to a Subsidiary or other business unit (a “Spin-off”), then the Conversion
Rate shall be adjusted so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the close of
business on the record date fixed for the determination of stockholders
entitled to receive such distribution by an adjustment factor equal to the sum
of the Daily Adjustments for each of the 10 consecutive Trading Days beginning
on the effective date of the Spin-off, such adjustment to become effective on
the 10th Trading Day from, and including, the effective date of the Spin-off.


 


(6)               Cash Distributions. In case the
Company shall, by dividend or otherwise, distribute to all or substantially all
holders of outstanding shares of Common Stock distributions consisting
exclusively of cash, then the Conversion Rate shall be adjusted so that the
same shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to the close of business on the date fixed for
determination of the stockholders entitled to receive such distribution by an adjustment
factor equal to a fraction:


 


(A)                              the numerator of which
shall be equal to the Current Market Price per share of Common Stock on the
date fixed for such determination; and


 


(B)                                the denominator of
which shall be equal to the Current Market Price per share of Common Stock on
such date fixed for determination minus the amount per share of such
distribution, such adjustment to become effective immediately after the record
date fixed for the determination of stockholders entitled to receive such
distribution.


 


Notwithstanding
the foregoing, in cases where (i) the per share amount of such
distribution equals or exceeds the Current Market Price of the Common Stock, or
(ii)


 


42





















 


the Current Market Price of the Common Stock exceeds the per share
amount of such distribution by less than $1.00, in lieu of the adjustment set
forth in this Section 8.05(a)(6), Holders will receive upon conversion, in
addition to shares of Common Stock, if any, such distribution such Holders
would have received upon conversion of such Holders’ Notes if they had been
converted immediately prior to the record date for such distribution.


 


(7)               Tender or Exchange Offers. In
case the Company or any Subsidiary shall make a payment in respect of a tender
offer or exchange offer for any portion of the Common Stock, in which event, to
the extent the cash and value of any other consideration included in the
payment per share of Common Stock exceeds the Closing Sale Price of the Common
Stock on the Trading Day immediately following the last date on which tenders
or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as the case
may be, then the Conversion Rate shall be adjusted
so that the same shall equal the rate determined by multiplying the Conversion
Rate immediately prior to close of business on the Expiration Date by adjustment
factor equal to a fraction:


 


(A)                              the numerator of which
shall be equal to the sum of (a) the Fair Market Value, as determined by
the Board of Directors of the Company, of the aggregate consideration payable
for all shares of Common Stock purchased by the Company in the tender or
exchange offer and (b) the product of (i) the number of shares of
Common Stock outstanding less any such purchased shares and (ii) the
Closing Sale Price of the Common Stock on the Trading Day immediately following
the Expiration Date; and


 


(B)                                the denominator of
which shall be equal to the product of (a) the number of shares of Common
Stock outstanding, including any such purchased shares, and (b) the
Closing Sale Price of the Common Stock on the Trading Day immediately following
the Expiration Date.


 


The adjustment pursuant to this clause (7) will
become effective immediately after the opening of business on the second
Trading Day immediately following the Expiration
Date.


 


(8)               Repurchases. In case the Company
or any of its Subsidiaries shall make a payment in respect of a repurchase of
Common Stock the consideration for which exceeds the average of the Closing
Sale Prices of the Common Stock for the five consecutive Trading Days ending on
the relevant repurchase date (such amount, the “Repurchase
Premium”), and that repurchase, together with any other repurchases of
Common Stock by the Company or any of its Subsidiaries involving a Repurchase
Premium concluded within the preceding 12 months, results in the payment by the
Company of an aggregate consideration exceeding an amount equal to 10% of the
Market Capitalization of the Common Stock, then the
Conversion Rate shall be adjusted so that the same shall equal the rate
determined by multiplying the Conversion


 


43





















 


Rate immediately prior to the close of business on the date fixed for
determination of the stockholders entitled to receive such distribution by
adjustment factor equal to a fraction:


 


(A)                              the numerator of which
shall be equal to the Current Market Price of the Common Stock; and


 


(B)                                the denominator of
which shall be equal to (a) the Current Market Price of the Common Stock minus
(b) the quotient of (i) the aggregate amount of all the Repurchase
Premiums paid in connection with such repurchases and (ii) the number of
shares of Common Stock outstanding on the day immediately following the date of
the repurchase triggering the adjustment, as determined by the Board of
Directors of the Company;


 


provided that no
adjustment to the Conversion Rate shall be made to the extent the Conversion
Rate is not increased as a result of the above calculation; and provided, further, that the repurchases of Common Stock effected by the
Company or its agent in conformity with Rule 10b-18 under the Exchange Act
will not be included in any adjustment to the Conversion Rate made pursuant to
this Section 8.05(a)(8).


 


If a payment
by the Company shall cause an adjustment to the Conversion Rate under both clause
(7) and clause (8) of this Section 8.05(a), the provisions of Section 8.05(a)(8) shall
control.


 


(b)                                 No
Adjustment. For the avoidance of doubt, no adjustment in the Conversion
Rate shall be required:


 


(1)               upon the issuance of (A) any shares
of Common Stock or (B) options, warrants or other rights to acquire Common
Stock (including the issuance of Common Stock pursuant to such options,
warrants or other rights), in any transaction resulting in an exchange for Fair
Market Value, including in connection with a reduction of indebtedness or
liabilities of the Company or its Subsidiaries including, without limitation,
pursuant to settlements with respect to claims related to any governmental or
private litigation, dispute, investigation, proceeding or other similar action;


 


(2)               upon the issuance of any shares of
Common Stock pursuant to any present or future plan or similar arrangement
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 such plan or arrangement;


 


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


 


44





















 


(4)               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 (3) of this Section 8.05(b) and
outstanding as of the date the Notes were first issued;


 


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


 


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


 


In addition,
the Company will 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. The Company shall carry forward any adjustment that is less than 1% of
the Conversion Rate, take such carried-forward adjustments into account in any
subsequent adjustments, and make such carried-forward adjustments, regardless
of whether the aggregate adjustment is less than 1%, (a) annually on the
anniversary of the first date of issue of the Notes and (b) otherwise (1) five
Business Days prior to the Maturity of the Notes or (2) prior to the
Redemption Date or Repurchase Date, unless such adjustment has already been
made.


 


No adjustment
will be made to the Conversion Rate or a Holder’s ability to convert the Notes
if such Holder otherwise participates in a distribution without conversion.


 


(c)                                  Increase
in Conversion Rate due to Taxes. The Company may make such increases in the
Conversion Rate, for the remaining term of the Notes or any shorter
term, in addition to those required by clause (a) of this Section 8.05,
as the Board of Directors of the Company considers to be advisable in order to
avoid or diminish any income tax to any holders of shares of Common Stock or
rights to purchase Common Stock resulting from any dividend or distribution of
stock or issuance of rights or warrants to purchase or subscribe for stock or
from any event treated as such for income tax purposes. The Company shall have
the power to resolve any ambiguity or correct any error in this clause (c) and
its actions in so doing shall, absent manifest error, be final and conclusive.


 


(d)                                 Temporary
Increase in Conversion Rate. To the extent permitted by applicable law, the
Company from time to time may increase the Conversion Rate by any amount for
any period of time if the period is at least twenty (20) Business Days, the
increase is irrevocable during such period, and the Company’s 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; provided, however, that no such increase shall be taken into account for
purposes of determining whether the closing price of the Common Stock equals or
exceeds 105% of the Conversion Price in connection with an event which would
otherwise be a Fundamental Change. Whenever the Conversion Rate is increased
pursuant to the preceding sentence, the Company shall give notice of the
increase to the Holders in the manner provided in Section 11.01, with a
copy to the Trustee and Conversion Agent, at least fifteen (15) days prior to
the date the increased Conversion Rate takes effect, and such notice shall
state the increased Conversion Rate and the period during which it will be in effect.


 


45





















 


(e)                                  Fundamental
Change Make-Whole Adjustment. In case of a Fundamental Change as specified
in clauses (2), (3) or (4) of the definition thereof, solely upon
receipt by the Conversion Agent of any Holder’s Conversion Notice on or subsequent
to the Effective Date of such Fundamental Change and prior to the 45th day
following such Effective Date (or, if earlier and to the extent applicable, the
close of business on the second Business Day immediately preceding the Fundamental
Change Repurchase Date (as specified in the Fundamental Change Repurchase Right
Notice)), the Company shall increase the Conversion Rate for the Notes surrendered
for conversion by such Holder by the number of Additional Shares determined in
accordance with this Section 8.05(e); provided, however, that no increase
shall be made in the case of a Fundamental Change if at least 90% of the
consideration paid for the Common Stock (excluding cash payments for fractional
shares and cash payments made pursuant to dissenters’ appraisal rights) in such
Fundamental Change transaction consists of shares of Capital Stock traded on
NYSE or another U.S. national securities exchange or quoted on NASDAQ or
another established automated over-the-counter trading market in the United
States (or that will be so traded or quoted immediately following the
transaction) and as a result of such transaction or transactions the Notes
become convertible solely into such common stock.


 


The following table sets forth the hypothetical increase in the
Conversion Rate, expressed as a number of Additional Shares issuable per $1,000
initial principal amount of Notes as a result of a Fundamental Change that
occurs in the corresponding period:


 


	
  Effective Date of

  	
   

  	
  Stock Price ($)

  	
   

  
	
  Fundamental Change

  	
   

  	
  4.54

  	
   

  	
  5.00

  	
   

  	
  6.00

  	
   

  	
  7.00

  	
   

  	
  8.00

  	
   

  	
  10.00

  	
   

  	
  12.50

  	
   

  	
  15.00

  	
   

  	
  20.00

  	
   

  	
  25.00

  	
   

  	
  30.00

  	
   

  	
  35.00

  	
   

  	
  40.00

  	
   

  
	
  08-Nov-2005

  	
   

  	
  50.8

  	
   

  	
  41.7

  	
   

  	
  28.8

  	
   

  	
  21.4

  	
   

  	
  16.8

  	
   

  	
  11.8

  	
   

  	
  8.6

  	
   

  	
  6.8

  	
   

  	
  4.6

  	
   

  	
  3.3

  	
   

  	
  2.4

  	
   

  	
  1.8

  	
   

  	
  1.4

  	
   

  
	
  15-Nov-2006

  	
   

  	
  49.2

  	
   

  	
  39.6

  	
   

  	
  26.2

  	
   

  	
  19.0

  	
   

  	
  14.8

  	
   

  	
  10.2

  	
   

  	
  7.5

  	
   

  	
  5.9

  	
   

  	
  4.0

  	
   

  	
  2.9

  	
   

  	
  2.2

  	
   

  	
  1.6

  	
   

  	
  1.2

  	
   

  
	
  15-Nov-2007

  	
   

  	
  47.4

  	
   

  	
  36.7

  	
   

  	
  22.0

  	
   

  	
  14.2

  	
   

  	
  9.8

  	
   

  	
  5.7

  	
   

  	
  4.0

  	
   

  	
  3.2

  	
   

  	
  2.2

  	
   

  	
  1.6

  	
   

  	
  1.2

  	
   

  	
  0.9

  	
   

  	
  0.7

  	
   

  
	
  15-Nov-2008

  	
   

  	
  46.3

  	
   

  	
  34.3

  	
   

  	
  18.9

  	
   

  	
  11.7

  	
   

  	
  6.6

  	
   

  	
  4.1

  	
   

  	
  3.1

  	
   

  	
  2.5

  	
   

  	
  1.7

  	
   

  	
  1.2

  	
   

  	
  0.9

  	
   

  	
  0.7

  	
   

  	
  0.6

  	
   

  
	
  15-Nov-2009

  	
   

  	
  46.1

  	
   

  	
  31.3

  	
   

  	
  13.7

  	
   

  	
  6.8

  	
   

  	
  4.3

  	
   

  	
  2.9

  	
   

  	
  2.2

  	
   

  	
  1.8

  	
   

  	
  1.2

  	
   

  	
  0.9

  	
   

  	
  0.7

  	
   

  	
  0.5

  	
   

  	
  0.4

  	
   

  
	
  15-Nov-2010

  	
   

  	
  50.8

  	
   

  	
  30.6

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  	
  0.0

  	
   

  



 


The Stock
Prices and Additional Share amounts set forth above are based upon a Closing Sale
Price of $4.54 on November 2, 2005 and an initial Conversion Price of
$5.90. The Stock Prices set forth in the first row of the table above shall be
adjusted as of any date on which the Conversion Rate of the Notes is adjusted
in accordance with Section 8.05 hereof. The adjusted Stock Prices shall
equal the Stock Prices applicable immediately prior to such adjustment,
multiplied by an adjustment factor equal to a fraction, the numerator of which
is the Conversion Rate immediately prior to the adjustment giving rise to the
Stock Price adjustment and the denominator of which is the Conversion Rate as
so adjusted. If holders of Common Stock receive only cash in such Fundamental
Change transaction, the Stock Price will be the cash amount per share of Common
Stock. The number of Additional Shares shall be adjusted in the same manner and
for the same events as the Conversion Rate as set forth in Section 8.05
hereof.


 


46





















 


The exact
Stock Price and Conversion Dates may not be set forth on the table; in which
case, if the Stock Price is:


 


(A)                              between two Stock Price
amounts on the table or the Conversion Date is between two dates on the table,
the number of Additional Shares will be determined by straight-line interpolation
between the number of Additional Shares set forth for the higher and lower
stock price amounts and the two dates, as applicable, based on a 365-day year;


 


(B)                                more than $40.00 per
share (subject to adjustment), no further adjustment will be made to the
Conversion Rate as a result of the Fundamental Change; and


 


(C)                                less than $4.54 per
share (subject to adjustment), no further adjustment will be made to the
Conversion Rate as a result of the Fundamental Change.


 


Notwithstanding
the foregoing, in no event shall the total number of shares of Common Stock
issuable upon conversion of a Note exceed 220.2643 per $1,000 initial principal
amount of the Notes, after giving effect to the make-whole adjustment and any
related increase in the Conversion Rate pursuant to this Section 8.05(e),
subject to anti-dilution adjustments set forth in Section 8.05(a) hereof.


 


Section 8.06.                                       Notice
of Adjustments of Conversion Rate.


 


Whenever the
Conversion Rate is adjusted pursuant to Section 8.05 hereof:


 


(a)                                  the Company shall
compute the adjusted Conversion Rate in accordance with Section 8.05
hereof and shall prepare an Officer’s Certificate setting forth (1) the adjusted
Conversion Rate, (2) the clause of Section 8.05 pursuant to which
such adjustment has been made, showing in reasonable detail the facts upon
which such adjustment is based, (3) the calculation of such adjustment and
(4) the date as of which such adjustment is effective, and such
certificate shall promptly be filed with the Trustee and with each Conversion Agent
(which such certificates shall be conclusive absent manifest error); and


 


(b)                                 upon each such
adjustment, a notice stating that the Conversion Rate has been adjusted and
setting forth the adjusted Conversion Rate shall be required, and as soon as
practicable after it is required, such notice shall be provided by the Company
to all Holders in accordance with Section 11.01.


 


Moreover, upon
any determination by the Company, the Conversion Agent or the Trustee that
Holders of the Notes are or will be entitled to convert the Notes in accordance
with this Section 8.06, the Company will issue a press release and publish
the information on its website.


 


Neither the
Trustee nor any Conversion Agent shall be under any duty or responsibility with
respect to any such certificate or the information and calculations contained


 


47





















 


therein,
except to exhibit the same to any Holder of Notes desiring inspection thereof
at its office during normal business hours.


 


Section 8.07.                                       Notice
of Certain Corporate Transactions.


 


In case the
Company shall:


 


(a)                                  distribute to all or
substantially all holders of Common Stock rights or warrants entitling them to
purchase, for a period expiring within 60 days of the declaration date for such
distribution, Common Stock at less than the average Closing Sale Price of the
Common Stock for the five Trading Days immediately preceding the date such distribution
was first publicly announced; or


 


(b)                                 distribute to all or
substantially all holders of Common Stock the Company’s assets, debt securities
or rights or warrants to purchase the Company’s securities, which distribution
has a per share value exceeding 10% of the Closing Sale Price of the Common
Stock on the day preceding the declaration date for such distribution,


 


in each case,
other than pursuant of Section 8.10 hereof, then the Company shall deliver
written notice to the Conversion Agent, and shall deliver or cause its Agents
to deliver, to all Holders in accordance with Section 11.01, at least 20
days prior to the record or ex-dividend date for such distribution, a notice of
such distribution. At such time notice is given pursuant to this Section 8.07,
Holders of Notes that are not otherwise convertible at that time may surrender
their Notes for conversion at any time until the earlier of (1) the close
of business on the Business Day prior to the ex-dividend date or (2) the
Company’s announcement that such distribution will not take place. Holders of
Notes may not exercise this right of conversion if they may participate in the
distribution without conversion.


 


At any time
that the Trustee is not also the Conversion Agent, the Company shall forthwith
deliver a copy of any notice required pursuant to this Section 8.06 to the
Trustee.


 


Section 8.08.                                       Cancellation
of Converted Notes.


 


All Definitive
Notes delivered for conversion shall be delivered to the Trustee or its agent
to be canceled by or at the direction of the Trustee, which shall dispose of
the same as provided in this Indenture. Upon conversions of beneficial
interests in any Global Note, the Trustee or the Custodian, at the direction of
the Trustee, shall reduce the aggregate principal amount of outstanding Notes
represented by such Global Note to reflect the conversion pursuant to Section 2.01(b).


 


Section 8.09.                                       Provision
in Case of Consolidation, Merger or Sale of Assets.


 


In the case of
any consolidation or merger of the Company with or into any other Person, any
merger of another Person with or into the Company (other than a merger


 


48





















 


that does not
result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Company) or any conveyance, sale or
transfer of all or substantially all of the assets of the Company, the Person
formed by such consolidation or resulting from such merger or which acquires
such assets, as the case may be, shall execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each Note then outstanding shall have
the right thereafter, during the period such Note shall be convertible as
specified in Section 8.01 to convert such Note only into the kind and
amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, sale or transfer by a holder of the number
of shares of Common Stock of the Company into which such Note might have been
converted immediately prior to such consolidation, merger, conveyance, sale or
transfer. For purposes of this Section 8.09, the kind and amount of
consideration that a Holder would have been entitled to receive as a Holder of
the Common Stock in the case of reclassifications, consolidations, mergers,
sales or transfers of assets or other transactions that cause the Common Stock
to be converted into the right to receive more than a single type of
consideration (determined based in part upon any form of stockholder election)
will be deemed to be the weighted average of the kind and amount of consideration
received by the Holders of the Common Stock that affirmatively make such an
election. The above provisions of this Section 8.09 shall similarly apply
to successive consolidations, mergers, conveyances, sales, transfers or leases.
Notice of the execution of such a supplemental indenture shall be given by the
Company to the Holder of each Note as provided in Section 11.01 promptly
upon such execution.


 


Neither the
Trustee nor any Conversion Agent shall be under any responsibility to determine
the correctness of any provisions contained in any such supplemental indenture
relating either to the kind or amount of shares of stock or other securities or
property or cash receivable by Holders of Notes upon the conversion of their
Notes after any such consolidation, merger, conveyance, transfer, sale or lease
or to any such adjustment, but may accept as conclusive evidence of the
correctness of any such provisions, and shall be protected in relying upon, an
Opinion of Counsel with respect thereto, which the Company shall cause to be
furnished to the Trustee upon request.


 


Section 8.10.                                       Rights
Issued in Respect of Common Stock.


 


Rights or
warrants distributed by the Company to all holders of Common Stock entitling
the holders thereof to subscribe for or purchase shares of the Company’s capital
stock (either initially or under certain circumstances), which rights or
warrants, until the occurrence of a specified event or events (“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,


 


49





















 


shall not be
deemed distributed for purposes of Section 8.05(a) until the
occurrence of the earliest Trigger Event. In addition, in the event of any
distribution of rights or warrants, or any Trigger Event with respect thereto,
that shall have resulted in an adjustment to the Conversion Rate under Section 8.05(a),
(A) in the case of any such rights or warrants that shall all have been
redeemed or repurchased without exercise by any holders thereof, the Conversion
Rate shall be readjusted upon such final redemption or repurchase to give
effect to such distribution or Trigger Event, as the case may be, as though it
were a cash distribution, equal to the per share redemption or repurchase price
received by a holder of Common Stock with respect to such rights or warrants
(assuming such holder had retained such rights or warrants), made to all
holders of Common Stock as of the date of such redemption or repurchase, and (B) in
the case of any such rights or warrants all of which shall have expired without
exercise by any holder thereof, the Conversion Price shall be readjusted as if
such issuance had not occurred.


 


Section 8.11.                                       Responsibility
of Trustee and Conversion Agent for Conversion Provisions.


 


(a)                                  The
Conversion Agent will, upon the written request of the Company, determine if
the Notes are convertible as a result of satisfaction of the Sale Price
Condition and notify the Company and the Trustee. The Conversion Agent will, on
behalf of the Company, determine if the Notes are convertible as a result of
satisfaction of the Trading Price Condition and notify the Company and the
Trustee, which determination shall be confirmed by the Company to the
Conversion Agent; provided, however, that the Conversion Agent will have no obligation to
determine the Trading Price of the Notes unless the Company shall have
requested such determination in writing and the Company shall have no
obligation to make such request unless requested to do so by a Holder of the
Notes who provides the Company with a written notice which includes reasonable
evidence that the Trading Price Condition has been satisfied and which shall
include a bid quotation from a nationally recognized securities dealer as
specified in the definition of Trading Price. At such time, the Company will
instruct the Conversion Agent to determine the Trading Price of the Notes
beginning on the next Trading Day and on each successive Trading Day until the
Trading Price of the Notes is greater than or equal to 95% of the product of
the Closing Sale Price of the Common Stock multiplied by the Applicable
Conversion Rate.


 


(b)                                 The
Trustee, subject to the provisions of Section 7.01, and any Conversion
Agent, subject to clause (a) above, shall not at any time be under any
duty or responsibility to any Holder of Notes to determine whether any facts
exist which may require any adjustment of the Conversion Rate, or with respect
to the nature or extent of any such adjustment when made, or with respect to
the method employed, herein or in any supplemental indenture provided to be
employed, in making the same, or whether a supplemental indenture need be
entered into. Neither the Trustee, subject to the provisions of Section 7.01,
nor any Conversion Agent shall be accountable with respect to the validity or
value (or the kind or amount) of any Common Stock, or of any other securities
or property or cash, which may at any time be issued or delivered upon the
conversion of any Note; and it or they do not make any representation with
respect thereto. Neither the Trustee, subject to the provisions of Section 7.01,
nor any Conversion Agent shall be responsible for any failure of the Company to


 


50





















 


make or calculate any cash
payment or to issue, transfer or deliver any shares of Common Stock or share
certificates or other securities or property or cash upon the surrender of any
Note for the purpose of conversion; and the Trustee, subject to the provisions
of Section 7.01, and any Conversion Agent shall not be responsible for any
failure of the Company to comply with any of the covenants of the Company
contained in this Article 8.


 


ARTICLE NINE



AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01.                                       Without
Consent of Holders of Notes.


 


Notwithstanding
Section 9.02 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture or the Notes without the consent of any Holder of
Notes:


 


(1)               to cure any ambiguity, defect or
inconsistency or make any other change that does not adversely affect the
interests of the Holders;


 


(2)               to provide for uncertificated Notes in
addition to or in place of certificated Notes;


 


(3)               to provide for the assumption of the
Company’s obligations to the Holders of the Notes by a successor to the Company
pursuant to Article 5 or Article 11 hereof;


 


(4)               to make any change that would provide
any additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any Holder;


 


(5)               to comply with requirements of the SEC
in order to effect or maintain the qualification of this Indenture under the
TIA; or


 


(6)               to provide for the issuance of
Additional Notes in accordance with the limitations set forth in this Indenture
as of the date hereof.


 


Upon the
request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and
upon receipt by the Trustee of the documents
described in Section 7.03 of the Base Indenture hereof, the Trustee will
join with the Company in the execution of any amended or supplemental indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee will not be obligated to enter into such amended or supplemental
indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.


 


51










 













 


The consent of
the Holders of the Notes will not be necessary to approve the particular form
of any proposed amendment. It will be sufficient if such consent approves the
substance of the proposed amendment.


 


Section 9.02.                                       With
Consent of Holders of Notes.


 


Except as
provided below in this Section 9.02, the Company and the Trustee may amend
or supplement this Indenture (including, without limitation, Sections 4.07 and
4.08 hereof) and the Notes with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes (including, without
limitation, Additional Notes, if any) then Outstanding voting as a single class
(including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default (other than a Default in
the payment of the principal of, or interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture or the Notes may be waived with the
consent of the Holders of a majority in aggregate principal amount of the then
Outstanding Notes (including, without limitation, Additional Notes, if any)
voting as a single class (including, without limitation, consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes).


 


Upon the
request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee
of the documents described in Section 7.03 of the Base Indenture, the
Trustee will join with the Company in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture directly
affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but will not be
obligated to, enter into such amended or supplemental indenture.


 


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


 


After an
amendment, supplement or waiver under this Section 9.02 becomes effective,
the Company will mail to the Holders of Notes affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, will not, however, in any way impair
or affect the validity of any such amended or supplemental indenture or waiver.
Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in
aggregate principal amount of the Notes then outstanding voting as a single
class may waive compliance in a particular instance by the Company with any
provision of this Indenture or the Notes. However, without the consent of each
Holder affected, an amendment, supplement or waiver under this Section 9.02
may not (with respect to any Notes held by a non-consenting Holder):


 


52





















 


(1)               change the stated Maturity of the
principal of, or interest on, any Note;


 


(2)               reduce the principal amount of, or
interest on, any Note;


 


(3)               reduce the amount of principal payable
upon acceleration of the Maturity of any Note;


 


(4)               change the place or currency of payment
of principal of, or interest on, any Note;


 


(5)               impair the right to institute suit for
the enforcement of any payment on, or with respect to, any Note;


 


(6)               modify the provisions of Section 4.07
hereof relating to the Company’s requirement to repurchase Notes upon a
Fundamental Change or of Section 4.08 hereof relating to the Company’s
requirement to repurchase Notes on each of November 15, 2010, 2015, and
2020.


 


(7)               adversely affect the right of Holders to
convert Notes other than as provided in this Indenture;


 


(8)               reduce the percentage in principal
amount of outstanding Notes required for modification or amendment of this
Indenture;


 


(9)               reduce the percentage in principal
amount of outstanding Notes necessary for waiver of compliance with certain
provisions of this Indenture or for waiver of certain Defaults;


 


(10)         reduce the percentage required for the
adoption of a resolution or for a quorum required at any meeting of Holders of
Notes at which a resolution is adopted; or


 


(11)         modify Section 6.04 or Section 6.07
or any of the foregoing amendment and waiver provisions in this Section 9.02,
except to increase the percentage required for modification or waiver or to
provide for consent of each affected Holder of Notes.


 


Section 9.03.                                       Compliance
with Trust Indenture Act.


 


Every
amendment or supplement to this Indenture or the Notes will be set forth in an
amended or supplemental indenture that complies with the TIA as then in effect.


 


53





















 


Section 9.04.                                       Revocation
and Effect of Consents.


 


Until an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
of a Note is a continuing consent by the Holder of a Note and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder’s Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the amendment, supplement or waiver becomes effective. An
amendment, supplement or waiver becomes effective in accordance with its terms
and thereafter binds every Holder.


 


The Company
may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or
waiver which record date shall be at least 30 days prior to the first
solicitation of such consent. If a record date is fixed, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons shall be entitled to revoke any consent previously given, whether or
not such Persons continue to be Holders after such record date. No such consent
shall be valid or effective for more than 90 days after such record date. The
Company shall inform the Trustee in writing of the fixed record date, if
applicable.


 


Section 9.05.                                       Notation
on or Exchange of Notes.


 


The Trustee
may place an appropriate notation about an amendment, supplement or waiver on
any Note thereafter authenticated. The Company in exchange for all Notes may
issue and the Trustee shall, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or waiver.


 


Failure to make
the appropriate notation or issue a new Note will not affect the validity and
effect of such amendment, supplement or waiver.


 


Section 9.06.                                       Trustee
To Sign Amendments, etc.


 


The Trustee
will sign any amended or supplemental indenture authorized pursuant to this Article 9
if the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. The Company may not sign an amended
or supplemental indenture until the Board of Directors of the Company approves it.
In executing any amended or supplemental indenture, the Trustee will be
entitled to receive and (subject to Section 7.01 hereof) will be fully
protected in relying upon, in addition to the documents required by Section 10.03
hereof, an Officer’s Certificate and an Opinion of Counsel stating that the
execution of such amended or supplemental indenture is authorized or permitted
by this Indenture.


 


54





















 


ARTICLE TEN



SATISFACTION AND DISCHARGE


 


Section 10.01.                                 Satisfaction
and Discharge.


 


This Indenture
will be discharged and will cease to be of further effect as to all Notes
issued hereunder, when:


 


(1)               either:


 


(a)                                  all Notes that have
been authenticated, except lost, stolen or destroyed Notes that have been replaced
or paid and Notes for whose payment money has theretofore been deposited in
trust and thereafter repaid to the Company, have been delivered to the Trustee
for cancellation; or


 


(b)                                 all Notes that have
not been delivered to the Trustee for cancellation have or will become due and
payable within one year and the Company has irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust solely for the benefit of
the Holders, cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient without
consideration of any reinvestment of interest, to pay and discharge the entire
indebtedness on the Notes not delivered to the Trustee for cancellation for
principal and accrued interest to the date of Maturity;


 


(2)               no Default has occurred and is
continuing on the date of the deposit described in clause (1)(b) above
(other than a Default resulting from the borrowing of funds to be applied to
such deposit) and such deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company is a
party or by which the Company is bound;


 


(3)               the Company has paid or caused to be
paid all sums payable by it under this Indenture; and


 


(4)               the Company has delivered irrevocable
instructions to the Trustee under this Indenture to apply the deposited money
toward the payment of the Notes at maturity.


 


In addition,
the Company must deliver an Officer’s Certificate and an Opinion of Counsel to
the Trustee stating that all conditions precedent to satisfaction and discharge
have been satisfied.


 


Notwithstanding
the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to clause (1)(b) of this Section 10.01, the
provisions of Section 10.02 and Section 10.04 will survive. In
addition, nothing in this Section 10.01


 


55





















 


will be deemed
to discharge those provisions of Section 7.07 of the Base Indenture, that,
by their terms, survive the satisfaction and discharge of this Indenture.


 


Section 10.02.                                 Application
of Trust Money; Other Miscellaneous Provisions.


 


Subject to the
provisions of Section 10.04 hereof, all money and Government Securities
deposited with the Trustee pursuant to Section 10.01 hereof shall be held
in trust and applied by it, in accordance with the provisions of the Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee; but such money
need not be segregated from other funds except to the extent required by law.


 


If the Trustee
or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 10.01 hereof by reason of any legal proceeding or
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 this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 10.01 hereof; provided that if the Company has made any payment of
principal of or interest on any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or Government Securities held
by the Trustee or Paying Agent.


 


The Company
shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or non-callable Government Securities
deposited pursuant to Section 10.01 hereof or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the outstanding Notes.


 


Notwithstanding
anything in this Article 10 to the contrary, the Trustee shall deliver or
pay to the Company from time to time upon the request of the Company any money
or non-callable Government Securities held by it as provided in Section 10.01
hereof which, in the opinion of a nationally recognized investment bank,
appraisal firm or firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
defeasance.


 


Section 10.03.                                 Repayment
to the Company.


 


Any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or interest on any Note and remaining
unclaimed for two years after such principal or interest has become due and
payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter be permitted to look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect


 


56





















 


to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in The  New York Times and The  Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specified therein, which will
not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.


 


Section 10.04.                                 Reinstatement.


 


If the Trustee
or Paying Agent is unable to apply any U.S. dollars or non-callable Government
Securities in accordance with Section 10.01 hereof, as the case may be, by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company’s obligations under this Indenture and the Notes will be revived and
reinstated as though no deposit had occurred pursuant to Section 10.01
hereof until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 10.01 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of, if
any, or interest on any Note following the reinstatement of its obligations,
the Company will be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.


 


ARTICLE ELEVEN



MISCELLANEOUS


 


Section 11.01.                                 Notices.


 


Any notice or
communication by the Company or the Trustee to the others is duly given if in
writing and delivered in Person or by first class mail (registered or
certified, return receipt requested), facsimile transmission or overnight air
courier guaranteeing next day delivery, to the others’ address:


 


	
  If to the Company:

  
	
   

  
	
  Qwest Communications
  International Inc.

  
	
  1801 California Street

  
	
  Denver, Colorado 80202

  
	
  Attn.: General Counsel

  



 


57





















 


	
  With a copy to:

  
	
   

  
	
  Linklaters

  
	
  1345 Avenue of the
  Americas

  
	
  19th Floor

  
	
  New York, New York 10105

  
	
  Facsimile No.: (212) 903-9100

  
	
  Attn: Jeff Norton, Esq.

  
	
   

  
	
  If to the Trustee:

  
	
   

  
	
  U.S. Bank National
  Association

  
	
  Corporate Trust Services

  
	
  950 17th Street, Suite 300

  
	
  Denver, CO 80202

  



 


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


 


All notices
and communications (other than those sent to Holders) will be deemed to have
been duly given:  at the time delivered
by hand, if personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted
by facsimile; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.


 


Any notice or
communication to a Holder will be mailed by first class mail, postage prepaid,
or by overnight air courier guaranteeing next day delivery to its address shown
on the register kept by the Registrar. Any notice or communication will also be
so mailed to any Person described in TIA § 313(c), to the extent required
by the TIA. Failure to mail a notice or communication to a Holder or any defect
in it will not affect its sufficiency with respect to other Holders.


 


If a notice or
communication is mailed in the manner provided above within the time prescribed,
it is duly given, whether or not the addressee receives it.


 


If the Company
mails a notice or communication to Holders, it will mail a copy to the Trustee
and each Agent at the same time.


 


Section 11.02.                                 Indenture.


 


In the event
of any conflict between this Supplemental Indenture and the Base Indenture, the
provisions of this Supplemental Indenture shall prevail.


 


58





















 


Section 11.03.                                 Governing
Law.


 


The laws of
the State of New York shall govern this Supplemental Indenture and the
Securities of the Series created hereby.


 


Section 11.04.                                 No
Adverse Interpretation of Other Agreements.


 


This
Supplemental Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Supplemental Indenture.


 


Section 11.05.                                 Successors
and Assigns.


 


All covenants
and agreements of the Company in this Supplemental Indenture and the Notes
shall bind its successors and assigns. All agreements of the Trustee in this
Supplemental Indenture shall bind its successors and assigns.


 


Section 11.06.                                 Duplicate
Originals.


 


This
Supplemental Indenture may be executed in counterparts, each of which shall be
an original, but such counterparts shall together constitute but one
instrument.


 


Section 11.07.                                 Severability.


 


In case any
one or more of the provisions contained in this Supplemental Indenture or in
the Notes shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not
affect any other provisions of this Supplemental Indenture or of the Notes.


 


[Signature Pages Follow]


 


59





















 


SIGNATURES


 


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


 


	
   

  	
  QWEST
  COMMUNICATIONS

  INTERNATIONAL INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. BANK
  NATIONAL ASSOCIATION, as

  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 





















 


Exhibit A


 


[Face of Note]


 


CUSIP/ISIN             


 


3.50% Convertible Senior Notes due November 15, 2025


 


	
  No.                        

  	
   

  	
  $                      

  



 


QWEST COMMUNICATIONS INTERNATIONAL INC.


 


promises to pay to                                                                                                                                                                                          


 


or registered assigns,


 


the principal sum of                                                                                                                                                                                       


 


Dollars on November 15, 2025.


 


Interest Payment Dates:  May 15
and November 15


 


Record Dates:  May 1 and November 1


 


	
  Dated:

  	
   

  	
  , 2005

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  QWEST
  COMMUNICATIONS

  INTERNATIONAL INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  This is one of the
  Notes referred to in the

  within-mentioned Indenture:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  U.S. BANK NATIONAL
  ASSOCIATION,

  as Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  	
   

  	
   

  
									



 





















 


[Back of Note]

3.50% Convertible Senior Notes due November 15, 2025


 


[Insert the
Global Note Legend, if applicable pursuant to
the provisions of the Indenture]


 


Capitalized
terms used herein have the meanings assigned to them in the First Supplemental
Indenture referred to below unless otherwise indicated.


 


(1)                                  INTEREST. Qwest Communication International Inc., a Delaware
corporation (the “Company”), promises to pay interest on the principal amount of this
Note at 3.50% per annum from November 8, 2005 until Maturity. The Company
will pay interest, if any, semi-annually in
arrears on May 15 and November 15 of each year (subject to limited
exceptions if the Note is converted or purchased prior to such date), or if any
such day is not a Business Day, on the immediately following Business Day
(each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from November 8,
2005; provided that if there is no existing
Default in the payment of interest, and if this Note is authenticated between a
Record Date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment
Date; provided, further, that the first Interest Payment Date shall be May 15,
2006. The Company will pay interest on overdue principal from time to time on
demand at the rate then in effect to the extent lawful; it will pay interest on
overdue installments of interest, if any (without regard to any applicable
grace periods), from time to time on demand at the same rate to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.


 


(2)                                  METHOD OF PAYMENT. The Company will pay interest on the
Notes, if any, to the Persons who are registered Holders of Notes at the close
of business on the May 1 or November 1 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date and on or
before such Interest Payment Date. The Notes will be payable as to principal,
if any, and interest at the office or agency of the Company maintained for such
purpose within or without the City and State of New York, or, at the option of
the Company, payment of interest, if any, may be made by check mailed to the
Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately
available funds will be required with respect to principal of and interest, if
any, on, all Global Notes and all other Notes with an aggregate principal
amount in excess of $2 million for which the Holders have provided wire
transfer instructions at least 10 Business Days prior to the Interest Payment
Date to the Company or the Paying Agent. Such payment will be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.


 


(3)                                  PAYING AGENT, REGISTRAR AND CONVERSION
AGENT. Initially, U.S. Bank National Association, the Trustee under
the First Supplemental Indenture, will act as Paying Agent, Registrar and
Conversion Agent. The Company may change any Paying


 


2





















 


Agent,
Registrar or Conversion Agent without notice to any Holder. The Company or any
of its Subsidiaries may act in any such capacity.


 


(4)                                  INDENTURE. The Company issued the Notes under the Base
Indenture dated as of November 8, 2005, as supplemented by the First
Supplemental Indenture dated as of November 8, 2005 (the “Base Indenture,” as supplemented, the “Indenture”) between the Company and the Trustee. The terms of the Notes
include those stated in the Base Indenture and those made part of the Indenture
by reference to the TIA. The Notes are subject to all such terms, and Holders
are referred to the Indenture and the TIA for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The
Notes are unsecured obligations of the Company. The Indenture does not limit
the aggregate principal amount of Notes that may be issued thereunder.


 


(5)                                  OPTIONAL REDEMPTION. The Notes are not redeemable by the
Company prior to November 20, 2008. At any time on or after November 20,
2008, and before November 20, 2010 if the Closing Sale Price of the Common
Stock for at least 20 Trading Days in the 30 consecutive Trading Day period
ending on the day one prior to the date of a Redemption Notice is greater than
130% of the Applicable Conversion Price on the date of such notice, the Company
may redeem the notes in whole or in part at a cash redemption price equal to
the sum of (1) 100% of the principal amount of the notes to be redeemed;
plus (2) a Make-Whole Premium (as defined in the Indenture); plus (3) accrued
and unpaid interest on the principal amount of the Notes redeemed to the
Redemption Date. On or after November 20, 2010, the Company may at its
option redeem the Notes, in whole or in part, at a cash redemption price equal
to 100% of their principal amount, plus any accrued and unpaid interest, if
any, to the Redemption Date.


 


(6)                                  REPURCHASE AT THE OPTION OF HOLDER UPON SPECIFIED DATES. On
each of November 15, 2010, 2015 and 2020 (the “Repurchase
Dates”), each Holder may require the Company to repurchase the Notes
held by such Holder, and the Company shall repurchase on each of the Repurchase
Dates, any or all Notes submitted for repurchase for cash, at a price equal to
100% of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, to but not including the applicable Repurchase Date.


 


(7)                                  REPURCHASE AT THE OPTION OF HOLDER UPON A FUNDAMENTAL CHANGE.
Upon the occurrence of a Fundamental Change at any time prior to stated
Maturity, each Holder may require the Company to repurchase the Notes on a date
chosen by the Company in its sole discretion that is no less than 20 Business
Days and no more than 35 Business Days after the mailing of the Fundamental
Change Repurchase Right Notice (the “Fundamental Change Repurchase Date”), and
the Company shall repurchase on the Fundamental Change Repurchase Date, any or
all Notes submitted for repurchase for cash, at a price equal to 100% of the
aggregate principal amount thereof plus accrued and unpaid interest, if any, to
but not including the Fundamental Change Repurchase Date (the “Fundamental Change Payment”), unless
such Fundamental Change Repurchase Date falls after a Regular Record Date and
on or prior to the corresponding Interest Payment Date, in which case the


 


3





















 


Company shall
pay the full amount of accrued and unpaid interest payable on such Interest
Payment Date to the Holder of record at the close of business on the
corresponding Regular Record Date. At least 15 Business Days prior to the
expected effective date of a Fundamental Change (or if the Company does not
have actual notice of a Fundamental Change, as soon as the Company has actual
notice of such Fundamental Change), the Company will provide to all Holders of
the Notes, the Trustee, the Paying Agent and the Conversion Agent the
Fundamental Change Conversion Right Notice as required by the Indenture.


 


(8)                                  CONVERSION. Prior to Maturity, under certain circumstances
set forth in the Indenture, Holders of the Notes may surrender any portion of
the principal amount of any Note that is an integral multiple of $1,000 for
conversion (provided that the
principal amount of such Note to remain outstanding after such conversion is
equal to $2,000) into cash and, under certain circumstances set forth in the
Indenture, fully paid and non-assessable shares of Common Stock at the
Conversion Rate, determined as provided in the Indenture, in effect at the time
of conversion. However, the Company may elect to pay cash to Holders of Notes
surrendered for conversion in lieu of all or a portion of the Residual Value
Shares issuable upon conversion of such Notes. The Conversion Rate will
initially be 169.4341 shares of Common Stock per $1,000 principal amount of
Notes (which is equivalent to an initial Conversion Price of $5.90 per share),
but shall be adjusted under the circumstances specified in, and in accordance
with the terms of, the Indenture.


 


(9)                                  DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons
in denominations of $2,000 and integral multiples of $1,000. The transfer of
Notes may be registered and Notes may be exchanged as provided in the Indenture.
The Registrar and the Trustee may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Company need not exchange or register the transfer of any Note
or portion of a Note selected for conversion or repurchase, except for the
unconverted or unrepurchased portion of any Note being converted or repurchased
in part. Also, the Company need not exchange or register the transfer of any
Notes during the period between a record date and the corresponding Interest
Payment Date.


 


(10)                            PERSONS DEEMED OWNERS. The registered Holder of a Note may
be treated as its owner for all purposes.


 


(11)                            AMENDMENT, SUPPLEMENT AND WAIVER. Subject
to certain exceptions, the Indenture and the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes, including Additional
Notes, if any, voting as a single class, and any existing Default or compliance
with any provision of the Indenture and the Notes may be waived with the
consent of the Holders of a majority in aggregate principal amount of the then
outstanding Notes, including Additional Notes, if any, voting as a single class.
Without the consent of any Holder of a Note, the Indenture and the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency in a
manner that does not adversely affect the interests of the Holders, to provide
for uncertificated Notes in addition to or in place of certificated Notes, to
provide


 


4





















 


for a
successor Trustee under the Indenture, to provide for the assumption of the
Company’s obligations to the Holders of the Notes by a successor to the Company
in accordance with the provisions in the Indenture, to make any change that
would provide any additional rights or benefits to any or all of the Holders of
the Notes, to comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA to increase the Conversion
Rate or reduce the Conversion Price, provided that
the increase or reduction, as the case may be, is in accordance with the terms
of this Indenture or will not adversely affect the interests of the Holders of
the Notes, or to conform the text of the Indenture or the Notes to any
provision that was meant to be a verbatim description thereof as originally
communicated to investors.


 


(12)                            EVENTS OF DEFAULT. Each of the following is an “Event of Default”:


 


(1)               a default in the payment of any
installment of interest upon this Note as and when the same shall become due
and payable, and continuance of such default for a period of 30 days;


 


(2)               default in the payment of all or any
part of the principal of upon this Note as and when the same shall become due
and payable at Maturity;


 


(3)               default
on the part of the Company in the performance, or breach by the Company, of any
other covenant or agreement on the part of the Company set forth in this Note
or in the Indenture (other than a covenant or agreement in respect of which a
default or breach by the Company is specifically dealt with in Section 6.01
of the Indenture and other than those which have been included in this Note, if
any, or the Indenture solely for the benefit of Securities of any series other
than the series of the Notes), and continuance of such default or breach
without cure or waiver for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the Trustee, or to the
Company and the Trustee by the Holders of at least 25% in principal amount of
the Notes at the time Outstanding, a written notice specifying such failure and
requiring the same to be remedied;


 


(4)               the
Company fails to pay the purchase price of any Note when due (including,
without limitation, on any Repurchase Date, the delivery of cash as a return of
principal, any cash in lieu of fractional shares, and any shares, as the case
may be, upon conversion within the time period required by this Indenture);


 


(5)               the
Company fails to provide timely notice of a Fundamental Change, if required by
the Indenture, if such failure continues for 30 days after notice to the
Company of its failure to do so;


 


(6)               any
indebtedness for money borrowed by the Company or one of its Significant
Subsidiaries (all or substantially all of the outstanding voting securities of
which are owned, directly, or indirectly, by the Company) in an aggregate
outstanding


 


5





















 


principal
amount in excess of $100.0 million is not paid at final maturity or upon
acceleration and such indebtedness is not discharged, or such acceleration is
not cured or rescinded, within 10 days after written notice as provided in Section 6.02
of the Indenture, provided, however,
that in the event the Notes receive at any later date a rating of BBB- or
greater by Standard & Poor’s Corporation or any successor rating
agency (“S&P”) or Baa3 or
greater by Moody’s Investors Service, Inc. or any successor rating agency
(“Moody’s”) (or if such ratings
are not issued for the Notes by S&P or Moody’s, the corporate rating or
successor equivalent (in the case of S&P) or the senior implied rating or
successor equivalent (in the case of Moody’s) of the Company), then this clause
(6) shall not be applicable and shall be of no further force or effect
upon and after the date the Notes receive any such rating;


 


(7)               failure
by the Company or any of its Significant Subsidiaries (all or substantially all
of the outstanding voting securities of which are owned, directly, or
indirectly, by the Company)  to pay final
and non-appealable judgments entered by a court or courts of competent
jurisdiction, the aggregate uninsured or unbonded portion of which is at least
$100.0 million, if the judgments are not paid, discharged or stayed within 60
days; provided, however,
that in the event the Notes receive at any later date a rating of BBB- or
greater by S&P or Baa3 or greater by Moody’s (or if such ratings are not
issued for the Notes by S&P or Moody’s, the corporate rating or successor
equivalent (in the case of S&P) or the senior implied rating or successor
equivalent (in the case of Moody’s) of the Company) , then this clause (7) shall
not be applicable and shall be of no further force or effect upon and after the
date the Notes receive any such rating;


 


(8)               the
Company or any of its Subsidiaries that is a Significant Subsidiary or any
group of Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:


 


(A)                              commences a voluntary
case,


 


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


 


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


 


(D)                               makes a general
assignment for the benefit of its creditors; and


 


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


 


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


 


6





















 


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


 


(C)                                orders the liquidation
of the Company or any of its Subsidiaries that is a Significant Subsidiary or
any group of Subsidiaries of the Company that, taken together, would constitute
a Significant Subsidiary;


 


and the order or decree remains unstayed and
in effect for 90 consecutive days.


 


(13)                            TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.


 


(14)                            NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder of the Company, as such, will not have any
liability for any obligations of the Company under the Notes or the Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes.


 


(15)                            OPEN MARKET PURCHASES. The Company may, to the extent permitted
by applicable law, at any time, and from time to time, purchase Notes at any
price in the open market or otherwise.


 


(16)                            AUTHENTICATION. This Note will not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.


 


(17)                            ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: 
TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT
TEN (= joint tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).


 


(18)                            CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP
numbers in notices of repurchase or conversion as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of repurchase or conversion, and
reliance may be placed only on the other identification numbers placed thereon.


 


7





















 


(19)                            GOVERNING
LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THE INDENTURE AND THIS NOTE WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


8





















 


ASSIGNMENT FORM


 


To assign this
Note, fill in the form below:


 


	
  (I) or (we) assign and transfer this Note
  to:

  	
   

  
	
   

  	
  (Insert
  assignee’s legal name)

  



 


	
   

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

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

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

  



 


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


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

  	
   

  	
  (Sign exactly as your name appears on the face

  of this Note)

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature
  Guarantee*:

  	
   

  	
   

  
								



 


 










* Participant
in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).


 


9





















 


OPTION OF HOLDER TO ELECT PURCHASE


 


Check the box
below if you elect to have all or a portion of this Note redeemed or purchased
by the Company pursuant to Section 4.07 or 4.08 of the First Supplemental
Indenture:


 


Section 4.07 o       Section 4.08 o


 


If you want to
have only part of the Note purchased by the Company pursuant to Section 4.07
or 4.08 of the First Supplemental Indenture, state the amount you elect to have
purchased:


 


$             


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

  	
   

  	
  (Sign exactly as your name appears on the face of

  this Note)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tax Identification No.:

  	
   

  
	
   

  	
   

  
	
  Signature
  Guarantee*:

  	
   

  	
   

  
									



 










* Participant
in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).


 





















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE


 


The following
exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or
Definitive Note for an interest in this Global Note, have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount of decrease

  in Principal Amount

  of this Global Note

  	
   

  	
  Amount of increase in

  Principal Amount of

  this Global Note

  	
   

  	
  Principal Amount of

  this Global Note

  following such

  decrease (or increase)

  	
   

  	
  Signature of

  authorized officer of

  Trustee or Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 





















 


EXHIBIT B


 


FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE


 


Qwest Communications International Inc.

Attn:  Treasury Department

1801 California Street

Denver, Colorado 80202


 


U.S. Bank National Association 

Attn:  Corporate Trust Services

950  17th Street, Suite 300

Denver, CO  80202


 


Re:                               3.50%
Convertible Senior Notes due November 15, 2025

— REPURCHASE NOTICE (CUSIP 749121 BY 4)


 


Reference is
hereby made to the Indenture, dated as of November 8, 2005 (the “Base  Indenture”) as
supplemented by the First Supplemental Indenture dated as of November 8,
2005 (the Base Indenture as supplemented by the First Supplemental Indenture,
the “Indenture”), between
Qwest Communications International Inc., as issuer (the “Company”)
and U.S. Bank National Association, as trustee (the “Trustee”).
Capitalized terms used but not defined herein shall have the meanings given to
them in the First Supplemental Indenture.


 


The undersigned
hereby directs the Trustee or the Company to pay it pursuant to Section 4.07
of the First Supplemental Indenture an amount in cash valued as set forth in
the Indenture, equal to 100% of the principal amount to be repurchased (as set
forth below), plus interest accrued to, but excluding, the Repurchase Date, as
provided in the Indenture.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Signature
  Guaranteed]*

  	
   

  
							



 










*                                         [Signature(s) must be guaranteed by an Eligible Guarantor Institution with membership
in an approved signature guarantee program pursuant to Rule 17Ad-15 under
the Securities Exchange Act of 1934.]


 





















 


	
  If Notes are to
  be registered in the name of a Person

  
	
  other than the
  Holder, please print such Person’s

  
	
  name and
  address:

  
	
   

  
	
   

  	
   

  
	
  (Name)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Address)

  
	
   

  
	
   

  	
   

  
	
  Social Security
  or other Identification Number, if

  any.

  



 


If only a
portion of a Definitive Note is to be repurchased, please indicate:


 


1.                                       Principal
amount to be converted:   $                


 


2.                                       Principal
amount and denomination of Notes representing unpurchased principal amount to
be issued:


 


	
  Amount: $                          

  	
  Denominations:
  $                    

  



 


($2,000 or any
integral multiple of $1,000 in excess thereof, provided that the unconverted
portion of such principal amount is $2,000 or any integral multiple of  $1,000 in excess thereof.)


 


2





















 


EXHIBIT C


 


FORM OF CONVERSION NOTICE


 


Qwest Communications International Inc.

Attn:  Treasury Department

1801 California Street

Denver, Colorado 80202


 


U.S. Bank National Association,

Corporate Trust Services

Attn:  Specialized Finance

60 Livingston Avenue

St. Paul, MN  55107


 


U.S. Bank National Association 

Attn:  Corporate Trust Services

950  17th Street, Suite 300

Denver, CO  80202


 


Re:                               3.50%
Convertible Senior Notes due November 15, 2025

— CONVERSION NOTICE (CUSIP 749121 BY 4)


 


Reference is
hereby made to the Indenture, dated as of November 8, 2005 (the “Base  Indenture”) as
supplemented by the First Supplemental Indenture dated as of November 8,
2005 (the Base Indenture, as supplemented by the First Supplemented Indenture,
the “Indenture”), between
Qwest Communications International Inc., as issuer (the “Company”)
and U.S. Bank National Association, as trustee (the “Trustee”).
Capitalized terms used but not defined herein shall have the meanings given to
them in the First Supplemental Indenture.


 


                                                                     
(the “Owner”) owns
and proposes to convert the Note[s] or interest in such Note[s] specified
herein, in the principal amount of $                          
in such Note[s] or interests (the “Conversion”) pursuant to Article 8 of the First Supplemental
Indenture. In connection with the Conversion, the Owner hereby certifies that,
as Owner of this Note, he/she hereby irrevocably exercises the option to convert
this Note, or such portion of this Note in the principal amount designated
above into cash in the amount equal to the lesser of (A) the principal
amount of each Note or (B) the Conversion Value, and, to the extent the
Conversion Value exceeds $1,000, the appropriate number of Residual Value
Shares as determined in accordance with the terms of the Indenture; provided,
however, that the Company may elect to pay cash in lieu of all or a portion of
the Residual Value Shares issuable upon conversion of such Notes. The Owner
directs that such cash and any shares, together with a check in payment for any
fractional share and any Notes representing any unconverted principal amount
hereof, be delivered to and be registered in the name of the undersigned unless
a different name has been indicated below. If shares of Common Stock or Notes
are to be registered in the name of a Person other than the undersigned, (a) the


 





















 


undersigned
will pay all transfer taxes payable with respect thereto and (b) signature(s)
must be guaranteed by an Eligible Guarantor Institution with membership in an
approved signature guarantee program pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934. Any amount required to be paid by the
undersigned on account of interest accompanies this Note.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
  If shares of
  Common Stock or Notes are to be registered

  in the name of a Person other than the Holder,

  please print such Person’s name and address:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Address)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Social Security
  or other Identification Number, if

  any.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Signature
  Guaranteed]

  	
   

  
						



 


If only a
portion of a Definitive Note is to be converted, please indicate:


 


1.                                       Principal
amount to be converted:  $                  


 


2.                                       Principal
amount and denomination of Notes representing unconverted principal amount to
be issued:


 


	
  Amount:
  $                         

  	
  Denominations:
  $                    

  



 


($2,000 or any
integral multiple of $1,000 in excess thereof, provided that the unconverted
portion of such principal amount is $2,000 or any integral multiple of $1,000
in excess thereof.)


 


2





















 


EXHIBIT D


 


FORM OF REPURCHASE NOTICE


 


Qwest Communications International Inc.

Attn:  Treasury Department

1801 California Street

Denver, Colorado 80202


 


U.S. Bank National Association,

Corporate Trust Services

Attn:  Specialized Finance

60 Livingston Avenue

St. Paul, MN  55107


 


U.S. Bank National Association,

Corporate Trust Services

950  17th Street, Suite 300

Denver, CO  80202

Attn:  Corporate Trust Services


 


Re:                               3.50%
Convertible Senior Notes due November 15, 2025

—  NOTICE OF REPURCHASE (CUSIP 749121
BY 4)


 


Reference is
hereby made to the Indenture, dated as of November 8, 2005 (the “Base  Indenture”), as
supplemented by the First Supplemental Indenture dated as of November 8,
2005 (the Base Indenture, as supplemented by the First Supplemental Indenture,
the “Indenture”), between
Qwest Communications International Inc., as issuer (the “Company”)
and U.S. Bank National Association, as trustee (the “Trustee”).
Capitalized terms used but not defined herein shall have the meanings given to
them in the First Supplemental Indenture.


 


The
undersigned hereby directs the Trustee or the Company to pay it pursuant to Section 4.08
of the First Supplemental Indenture or an amount in cash valued as set forth in
the Indenture, equal to 100% of the principal amount to be repurchased (as set
forth below), plus interest accrued to, but excluding, the Repurchase Date, as
provided in the Indenture.


 


Any amount
required to be paid by the undersigned on account of interest accompanies this
Note.


 


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  



 





















 


	
  If Notes are to
  be registered in the name of a Person

  other than the Holder, please print such Person’s

  name and address:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Address)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Social Security
  or other Identification Number, if

  any.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Signature
  Guaranteed]

  	
   

  



 


If only a
portion of a Definitive Note is to be redeemed, please indicate:


 


1.                                       Principal
amount to be redeemed:  $


 


2.                                       Principal
amount and denomination of Notes representing unpurchased principal amount to
be issued:


 


	
  Amount:
  $                     

  	
  Denominations:
  $                

  



 


($2,000 or any
integral multiple of $1,000 in excess thereof, provided that the unredeemed
portion of such principal amount is $2,000 or any integral multiple of $1,000
in excess thereof.)


 


2