Supplemental Indenture

EXECUTION COPY

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

as Trustee

Page

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company, its Subsidiaries, and its and their employee benefit plans and the Existing Owners, files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s common equity representing more than 50% of the voting power of the Company’s common equity, or the Existing Owners, considered as a group, file a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such group has become the direct or indirect “beneficial owner” of the Company’s common equity representing more than 70% of the voting power of the Company’s common equity;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“ Market Disruption Event ” means the occurrence or existence on any Scheduled Trading Day for the Common Stock of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock, and such suspension or limitation occurs or exists at any time within the 30 minutes prior to the closing time of the relevant exchange on such day.

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

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

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

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

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

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

“ Observation Period ” with respect to any Note means:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“ VWAP Market Disruption Event ” means (i) a failure by the principal U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted to trading to open for trading during its regular trading session or (ii) the occurrence or existence on any Scheduled Trading Day for the Common Stock for an aggregate one half-hour period, of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock and traded on a principal national or regional securities exchange or market located in the U.S.

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

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

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

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

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

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

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

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

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

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

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

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

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

  FUNDAMENTAL CHANGES AND REPURCHASES THEREUPON; NO OPTIONAL REDEMPTION

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

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

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

(i) delivery to the Paying Agent by a Holder of a duly completed notice (the “ Fundamental Change Repurchase Notice ”) in the form set forth on the reverse of the Note as Exhibit C thereto, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for tendering interests in Global Notes, if the Notes are not Physical Notes; and

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

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

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

Notes;

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

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

Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 3.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the

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

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

Each Fundamental Change Company Notice shall specify:

(i)  the events causing a Fundamental Change;

(ii)  the date of the Fundamental Change;

(iv)  the Fundamental Change Repurchase Price;

(v)  the Fundamental Change Repurchase Date;

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

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

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

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

No failure of the Company to give the foregoing notices and no defect therein shall limit the repurchase rights of the Holders of Notes or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 3.01.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Notwithstanding the foregoing, if Notes