Exhibit 4.4


 


EXECUTION COPY


 




 





 


AMYLIN
PHARMACEUTICALS, INC.




To




 


J.P.
MORGAN TRUST COMPANY, NATIONAL ASSOCIATION,

as Trustee


 












 


INDENTURE




 


Dated
as of




April
6, 2004




 












 


2.50% Convertible Senior Notes due
2011






 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  1

  	
   

  
	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2

  	
   

  
	
  ISSUE,
  DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Designation Amount And Issue
  Of Notes

  	
   

  
	
  Section 2.02.

  	
  Form of Notes

  	
   

  
	
  Section
  2.03.

  	
  Date And
  Denomination Of Notes; Payments Of
  Interest

  	
   

  
	
  Section 2.04.

  	
  Execution of Notes

  	
   

  
	
  Section
  2.05.

  	
  Exchange
  and Registration of Transfer of Notes;
  Restrictions on Transfer

  	
   

  
	
  Section 2.06.

  	
  Mutilated, Destroyed, Lost or
  Stolen Notes

  	
   

  
	
  Section 2.07.

  	
  Temporary Notes

  	
   

  
	
  Section 2.08.

  	
  Cancellation of
  Notes

  	
   

  
	
  Section 2.09.

  	
  CUSIP Numbers

  	
   

  
	
  Section 2.10.

  	
  Additional Notes

  	
   

  
	
  Section 2.11.

  	
  Ranking

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  3

  	
   

  
	
  REDEMPTION OF NOTES

  	
   

  
	
   

  	
   

  
	
  Section 3.01.

  	
  Redemption At Option of
  Holders Upon a Designated Event.

  	
   

  
	
  Section
  3.02.

  	
  The
  Company’s Right to Elect Manner of Redemption upon a Designated Event.

  	
   

  
	
  Section
  3.03.

  	
  Effect of
  Redemption Notice.

  	
   

  
	
  Section
  3.04.

  	
  Deposit of
  Redemption Price.

  	
   

  
	
  Section 3.05.

  	
  Repayment to
  the Company

  	
   

  
	
  Section
  3.06.

  	
  Redemption
  Upon Changes In Withholding Taxes

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4

  	
   

  
	
  PARTICULAR
  COVENANTS OF THE COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Payment of
  Principal, Premium and Interest

  	
   

  
	
  Section
  4.02.

  	
  Maintenance
  of Office or Agency

  	
   

  
	
  Section
  4.03.

  	
  Appointments
  to Fill Vacancies in Trustee’s Office

  	
   

  
	
  Section
  4.04.

  	
  Provisions
  as to Paying Agent

  	
   

  
	
  Section
  4.05.

  	
  Existence

  	
   

  
				



 

















 


	
  Section 4.06.

  	
  Maintenance of
  Properties

  	
   

  
	
  Section
  4.07.

  	
  Payment
  of Taxes and Other Claims

  	
   

  
	
  Section
  4.08.

  	
  Rule
  144A Information Requirement

  	
   

  
	
  Section 4.09.

  	
  Stay,
  Extension and Usury Laws

  	
   

  
	
  Section 4.10.

  	
  Compliance Certificate

  	
   

  
	
  Section 4.11.

  	
  Liquidated
  Damages Notice

  	
   

  
	
  Section
  4.12.

  	
  Payment Of
  Additional Amounts

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  5

  	
   

  
	
  NOTEHOLDERS’
  LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE

  	
   

  
	
   

  	
   

  
	
  Section 5.01.

  	
  Noteholders’ Lists

  	
   

  
	
  Section
  5.02.

  	
  Preservation
  And Disclosure Of Lists

  	
   

  
	
  Section 5.03.

  	
  Reports By Trustee

  	
   

  
	
  Section 5.04.

  	
  Reports by Company

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6

  	
   

  
	
  REMEDIES
  OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Events Of Default

  	
   

  
	
  Section
  6.02.

  	
  Payments of
  Notes on Default; Suit Therefor

  	
   

  
	
  Section 6.03.

  	
  Application
  of Monies Collected By Trustee

  	
   

  
	
  Section 6.04.

  	
  Proceedings
  by Noteholder

  	
   

  
	
  Section 6.05.

  	
  Proceedings
  By Trustee

  	
   

  
	
  Section 6.06.

  	
  Remedies
  Cumulative And Continuing

  	
   

  
	
  Section 6.07.

  	
  Direction
  of Proceedings and Waiver of Defaults By Majority of Noteholders

  	
   

  
	
  Section 6.08.

  	
  Notice
  of Defaults

  	
   

  
	
  Section 6.09.

  	
  Undertaking
  To Pay Costs

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7

  	
   

  
	
  THE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Duties
  and Responsibilities of Trustee

  	
   

  
	
  Section 7.02.

  	
  Reliance
  on Documents, Opinions, Etc

  	
   

  
	
  Section 7.03.

  	
  No
  Responsibility For Recitals, Etc

  	
   

  
	
  Section 7.04.

  	
  Trustee,
  Paying Agents, Conversion Agents or Registrar May Own Notes

  	
   

  
	
  Section 7.05.

  	
  Monies
  to Be Held in Trust

  	
   

  
	
  Section 7.06.

  	
  Compensation
  and Expenses of Trustee

  	
   

  
	
  Section 7.07.

  	
  Officers’
  Certificate As Evidence

  	
   

  
	
  Section 7.08.

  	
  Conflicting
  Interests of Trustee

  	
   

  
	
  Section 7.09.

  	
  Eligibility
  of Trustee

  	
   

  
	
  Section 7.10.

  	
  Resignation
  or Removal of Trustee.

  	
   

  
	
  Section 7.11.

  	
  Acceptance
  by Successor Trustee

  	
   

  
	
  Section 7.12.

  	
  Succession
  By Merger

  	
   

  
	
  Section 7.13.

  	
  Preferential
  Collection of Claims

  	
   

  



 


ii

















 


	
  ARTICLE
  8

  	
   

  
	
  THE NOTEHOLDERS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Action
  By Noteholders

  	
   

  
	
  Section 8.02.

  	
  Proof
  of Execution by Noteholders

  	
   

  
	
  Section 8.03.

  	
  Who Are
  Deemed Absolute Owners

  	
   

  
	
  Section 8.04.

  	
  Company-owned
  Notes Disregarded

  	
   

  
	
  Section 8.05.

  	
  Revocation
  Of Consents, Future Holders Bound

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9

  	
   

  
	
  MEETINGS OF NOTEHOLDERS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Purpose
  Of Meetings

  	
   

  
	
  Section 9.02.

  	
  Call Of
  Meetings By Trustee

  	
   

  
	
  Section 9.03.

  	
  Call
  Of Meetings By Company Or Noteholders

  	
   

  
	
  Section 9.04.

  	
  Qualifications
  For Voting

  	
   

  
	
  Section 9.05.

  	
  Regulations

  	
   

  
	
  Section 9.06.

  	
  Voting

  	
   

  
	
  Section 9.07.

  	
  No
  Delay Of Rights By Meeting

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
   

  
	
  SUPPLEMENTAL INDENTURES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Supplemental
  Indentures Without Consent of Noteholders

  	
   

  
	
  Section 10.02.

  	
  Supplemental
  Indenture With Consent Of Noteholders

  	
   

  
	
  Section 10.03.

  	
  Effect
  Of Supplemental Indenture

  	
   

  
	
  Section 10.04.

  	
  Notation
  On Notes

  	
   

  
	
  Section 10.05.

  	
  Evidence
  Of Compliance Of Supplemental Indenture To Be Furnished To Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
   

  
	
  CONSOLIDATION, MERGER, SALE, CONVEYANCE
  AND LEASE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Company
  May Consolidate On Certain Terms

  	
   

  
	
  Section 11.02.

  	
  Successor
  To Be Substituted

  	
   

  
	
  Section 11.03.

  	
  Opinion
  Of Counsel To Be Given To Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
   

  
	
  SATISFACTION
  AND DISCHARGE OF INDENTURE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
  Discharge
  Of Indenture

  	
   

  
	
  Section 12.02.

  	
  Deposited
  Monies To Be Held In Trust By Trustee

  	
   

  
	
  Section 12.03.

  	
  Paying
  Agent To Repay Monies Held

  	
   

  
	
  Section 12.04.

  	
  Return
  Of Unclaimed Monies

  	
   

  
	
  Section 12.05.

  	
  Reinstatement

  	
   

  



 


iii

















 


	
  ARTICLE 13

  	
   

  
	
  IMMUNITY OF INCORPORATORS,
  STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.01.

  	
  Indenture
  And Notes Solely Corporate Obligations

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14

  	
   

  
	
  CONVERSION OF NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 14.01.

  	
  Right
  To Convert.

  	
   

  
	
  Section 14.02.

  	
  Exercise
  Of Conversion Privilege; Issuance Of
  Common Stock On Conversion; No
  Adjustment For Interest Or Dividends.

  	
   

  
	
  Section 14.03.

  	
  Cash
  Payments in Lieu of Fractional Shares

  	
   

  
	
  Section 14.04.

  	
  Conversion
  Rate

  	
   

  
	
  Section 14.05.

  	
  Adjustment
  Of Conversion Rate

  	
   

  
	
  Section 14.06.

  	
  Effect
  Of Reclassification, Consolidation, Merger or Sale

  	
   

  
	
  Section 14.07.

  	
  Taxes
  On Shares Issued

  	
   

  
	
  Section 14.08.

  	
  Reservation
  of Shares, Shares to Be Fully Paid;
  Compliance With Governmental Requirements;
  Listing of Common Stock

  	
   

  
	
  Section 14.09.

  	
  Responsibility
  Of Trustee

  	
   

  
	
  Section 14.10.

  	
  Notice
  To Holders Prior To Certain Actions

  	
   

  
	
  Section 14.11.

  	
  Stockholder
  Rights Plans

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15

  	
   

  
	
  MISCELLANEOUS PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 15.01.

  	
  Provisions
  Binding On Company’s Successors

  	
   

  
	
  Section 15.02.

  	
  Official
  Acts By Successor Corporation

  	
   

  
	
  Section 15.03.

  	
  Addresses
  For Notices, Etc

  	
   

  
	
  Section 15.04.

  	
  Governing
  Law

  	
   

  
	
  Section 15.05.

  	
  Evidence
  Of Compliance With Conditions Precedent, Certificates To Trustee

  	
   

  
	
  Section 15.06.

  	
  Legal
  Holidays

  	
   

  
	
  Section 15.07.

  	
  Trust
  Indenture Act

  	
   

  
	
  Section 15.08.

  	
  No
  Security Interest Created

  	
   

  
	
  Section 15.09.

  	
  Benefits
  Of Indenture

  	
   

  
	
  Section 15.10.

  	
  Table
  Of Contents, Headings, Etc

  	
   

  
	
  Section 15.11.

  	
  Authenticating
  Agent

  	
   

  
	
  Section 15.12.

  	
  Execution
  In Counterparts

  	
   

  
	
  Section 15.13.

  	
  Severability

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of Note

  	
   

  
				



 


iv

















 


INDENTURE


 


INDENTURE dated as of April
6, 2004 between Amylin Pharmaceuticals, Inc., a Delaware corporation
(hereinafter called the “Company”), having its principal office at
9360 Towne Centre Drive, Suite 110, San Diego, California 92121 and J.P. Morgan
Trust Company, National Association, as trustee hereunder (hereinafter called
the “Trustee”).


 


WITNESSETH:


 


WHEREAS, for its lawful
corporate purposes, the Company has duly authorized the issue of its 2.50%
Convertible Senior Notes due 2011 (hereinafter called the “Notes”), in an aggregate
principal amount not to exceed $175,000,000 (or up to $200,000,000 if the
Initial Purchasers exercise their option in full, provided that the Company
may, without the consent of the holders, issue additional notes under this
Indenture with the same terms and with the same CUSIP numbers as the Notes in
an unlimited aggregate principal amount so long as such additional Notes are
part of the same issue as the Notes for United States federal income tax
purposes) and, to provide the terms and conditions upon which the Notes are to
be authenticated, issued and delivered, the Company has duly authorized the
execution and delivery of this Indenture;


 


WHEREAS, the Notes, the
certificate of authentication to be borne by the Notes, a form of assignment, a
form of option to elect redemption upon a Designated Event, and a form of
conversion notice to be borne by the Notes are to be substantially in the forms
hereinafter provided for; and


 


WHEREAS, all acts and things
necessary to make the Notes, when executed by the Company and authenticated and
delivered by the Trustee or a duly authorized authenticating agent, as in this
Indenture provided, the valid, binding and legal obligations of the Company,
and to constitute this Indenture a valid agreement according to its terms, have
been done and performed, and the execution of this Indenture and the issue
hereunder of the Notes have in all respects been duly authorized,


 


NOW, THEREFORE, THIS
INDENTURE WITNESSETH:


 


That in order to declare the
terms and conditions upon which the Notes are, and are to be, authenticated,
issued and delivered, and in consideration of the premises and of the purchase
and acceptance of the Notes by the holders thereof, the Company covenants and
agrees with the Trustee for the equal and proportionate benefit of the
respective holders from time to time of the Notes (except as otherwise provided
below), as follows:


 

















 


ARTICLE
1


DEFINITIONS


 


Section 1.01.  Definitions. 
The terms defined in this Section 1.01 (except as herein otherwise expressly
provided or unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section 1.01. 
All other terms used in this Indenture that are defined in the Trust
Indenture Act or which are by reference therein defined in the Securities Act
(except as herein otherwise expressly provided or unless the context otherwise
requires) shall have the meanings assigned to such terms in the Trust Indenture
Act and in the Securities Act as in force at the date of the execution of this
Indenture.  The words “herein”,
“hereof”,
“hereunder”
and words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other Subdivision.  The terms defined in this Article include the plural as well as
the singular.


 


“Additional Amounts” has the
meaning specified in Section 4.12.


 


“Adjustment Event” has the
meaning specified in Section 14.05(k).


 


“Agent Members” has the
meaning specified in Section 2.05(b).


 


“Affiliate” of any specified
Person means 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 or
cause the direction of 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.


 


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


 


“Business Day” means any day
except a Saturday, Sunday or legal holiday on which banking institutions in The
City of New York or the city in which the Corporate Trust Office is located are
authorized or obligated by law, regulation or executive order to close.


 


“Closing Sale Price” of the
shares of Common Stock on any date means the closing sale price per share (or,
if no closing sale price is reported, the average of the closing bid and ask
prices or, if more than one in either case, the average of the average closing
bid and the average closing ask prices) on such date as reported in composite
transactions for the principal United States securities exchange on which
shares of Common Stock are traded or, if the shares of Common Stock are not
listed on a United States national or regional securities exchange, as reported
by the Nasdaq National Market (or The Nasdaq SmallCap


 


2

















 


Market, if applicable) or by the National Quotation Bureau
Incorporated.  In the absence of such
quotations, the Company shall be entitled to determine the Closing Sale Price
on the basis it considers appropriate. 
The Closing Sale Price shall be determined without reference to extended
or after hours trading.


 


“Commission” means the
Securities and Exchange Commission, as from time to time constituted, created
under the Exchange Act, or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such duties
at such time.


 


“Common Stock” means any stock
of any class of the Company which 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 Company and which is not subject to redemption
by the Company.  Subject to the
provisions of Section 14.06, however, shares issuable on conversion of Notes
shall include only shares of the class designated as common stock of the Company
at the date of this Indenture (namely, the Common Stock, par value $0.001 per
share) or shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which are not subject to
redemption by the Company; provided that if at any time there shall
be more than one such resulting class, the shares of each such class then so
issuable on conversion shall be substantially in the proportion which the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of all such classes resulting from all such
reclassifications.


 


“Company” means the corporation
named as the “Company” in the first paragraph of this Indenture, and,
subject to the provisions of Article 11 and Section 14.06, shall include its
successors and assigns.


 


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


 


“Conversion Rate” has the
meaning specified in Section 14.04.


 


“Corporate
Trust Office” or other similar term, means the designated office of
the Trustee at which at any particular time its corporate trust business as it
relates to this Indenture shall be administered, which office, at the date as
of which this Indenture is dated, is located at 560 Mission Street, 13th
Floor, San Francisco, California, 94105, Attention: Institutional Trust
Services, and for purposes of Section 4.02 shall mean Institutional Trust
Services Window, c/o J.P. Morgan Chase Bank, 4 New York Plaza, 1st
Floor, New York, New York 10004.


 


“Current Market Price” has the
meaning specified in Section 14.05(g).


 


3

















 


“Custodian” means J.P. Morgan
Trust Company, National Association, as custodian with respect to the Notes in
global form, or any successor entity thereto.


 


 “Default” means any event that is, or after notice or passage
of time, or both, would be, an Event of Default.


 


“Defaulted Interest” has the
meaning specified in Section 2.03.


 


“Designated Event” means the
occurrence of (a) a Fundamental Change or (b) the termination of trading in the
Company’s Common Stock (or other common stock into which the Notes are at such
time convertible) on the Nasdaq National Market, The Nasdaq SmallCap Market or
any United States national securities exchange, following which the Company’s
Common Stock (or other common stock into which the Notes are at such time
convertible) is no longer approved for trading on the Nasdaq National Market,
The Nasdaq SmallCap Market or any similar United States system of automated
dissemination of quotations and security prices or listed for trading on a
United States national securities exchange.


 


“Designated Event Expiration Time”
has the meaning specified in Section 3.01(b).


 


“Designated Event Notice” has
the meaning specified in Section 3.01(b).


 


“Designated Event Redemption Date” has the
meaning specified in Section 3.01(a).


 


“Designated Event Redemption Price”
has the meaning specified in Section 3.01(a).


 


“Depositary” means the
clearing agency registered under the Exchange Act that is designated to act as
the Depositary for the Global Notes. 
The Depository Trust Company shall be the initial Depositary, until a
successor shall have been appointed and become such pursuant to the applicable
provisions of this Indenture, and thereafter, “Depositary” shall mean or
include such successor.


 


“Determination Date” has the
meaning specified in Section 14.05(k).


 


“Event of Default” means any
event specified in Section 6.01 as an Event of Default.


 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.


 


“Expiration Time” has the
meaning specified in Section 14.05(f).


 


“Fair Market Value” has the
meaning specified in Section 14.05(g).


 


4

















 


“Fundamental Change” means (i)
the acquisition by any person, including any syndicate or group deemed to be a
“person” under Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended, of beneficial ownership, directly or indirectly, through a purchase,
merger or other acquisition transaction or series of purchase, merger or other
acquisition transactions of shares of the Company’s capital stock entitling
that 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 any acquisition by us, any of the Company’s future
subsidiaries or any of the Company’s employee benefit plans (except that such
person shall be deemed to have beneficial ownership of all securities that such
person has the right to acquire, whether such right is currently exercisable or
is exercisable only upon the occurrence of a subsequent condition); or (ii) the
consolidation or merger of us with or into any other person, any merger of
another person into us, or any conveyance, transfer, sale, lease or other
disposition of all or substantially all of the Company’s properties and assets
to another person, other than any transaction (x) (A) that does not result in
any reclassification, conversion, exchange or cancellation of outstanding
shares of the Company’s capital stock and (B) pursuant to which holders of the
Company’s capital stock immediately prior to such transaction have the
entitlement to exercise, directly or indirectly, 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 of the continuing or surviving person
immediately after giving effect to such transaction; or (y) any merger solely
for the purpose of changing the Company’s jurisdiction of incorporation and
resulting in a reclassification, conversion, or exchange of outstanding shares
of common stock solely into shares of common stock of a parent entity.  However, a fundamental change will be deemed
not to have occurred if the closing sale price per share of the Company’s
common stock for any five trading days within the period of 10 consecutive
trading days ending immediately after the later of the change of control or the
public announcement of the change of control, in the case of a change of
control under (i) above, or the period of 10 consecutive trading days
immediately before the change of control, in the case of a change of control
under the (ii) above, equals or exceeds 105% of the conversion price of the
notes in effect on each such trading day; or at least 90% of the consideration
in the transaction or transactions constituting a change of control consists of
shares of common stock traded or to be traded immediately following such change
of control on a national securities exchange or the Nasdaq National Market and
as a result of the transaction or transactions, the notes become convertible
solely into such common stock (and any rights attached thereto).


 


“Global Note” has the meaning
specified in Section 2.02.


 


“Indebtedness” means, with
respect to any Person, and without duplication, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (a) all
indebtedness, obligations and other liabilities of such Person for borrowed
money (including obligations of the Person in respect


 


5

















 


of overdrafts, foreign exchange contracts, currency exchange
agreements, interest rate protection agreements, and any loans or advances from
banks, whether or not evidenced by notes or similar instruments) or evidenced
by bonds, debentures, notes or similar instruments, other than any account
payable or other accrued current liability or obligation incurred in the
ordinary course of business in connection with the obtaining of materials or
services; (b) all reimbursement obligations and other liabilities of such
Person with respect to letters of credit, bank guarantees or bankers’
acceptances; (c) all obligations and liabilities in respect of leases of such
Person required, in conformity with generally accepted accounting principles,
to be accounted for as capitalized lease obligations on the balance sheet of
such Person and all obligations and other liabilities under any lease or
related document (including a purchase agreement) in connection with the lease
of real property which provides that such Person is contractually obligated to
purchase or cause a third party to purchase the leased property and thereby
guarantee a minimum residual value of the leased property to the lessor and the
obligations of such Person under such lease or related document to purchase or
to cause a third party to purchase such leased property; (d) all net
obligations of such Person with respect to an interest rate or other swap, cap
or collar agreement or other similar instrument or agreement or foreign
currency hedge, exchange, purchase or similar instrument or agreement; (e) all
direct or indirect guaranties or similar agreements by such Person in respect
of, and obligations or liabilities of such Person to purchase or otherwise
acquire or otherwise assure a creditor against loss in respect of,
indebtedness, obligations or liabilities of another Person of the kind
described in clauses (a) through (d); (f) any indebtedness or other obligations
described in clauses (a) through (e) secured by any mortgage, pledge, lien or
other encumbrance existing on property which is owned or held by such Person,
regardless of whether the indebtedness or other obligation secured thereby
shall have been assumed by such Person; and (g) any and all deferrals,
renewals, extensions and refundings of, or amendments, modifications or
supplements to, any indebtedness, obligation or liability of the kind described
in clauses (a) through (f).


 


“Indenture” means this
instrument as originally executed or, if amended or supplemented as herein
provided, as so amended or supplemented.


 


“Initial Purchasers” means
Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co.


 


“Interest” means, when used
with reference to the Notes, any interest payable under the terms of the Notes,
and Liquidated Damages, if any, payable under the terms of the Registration
Rights Agreement.


 


“Interest Payment Date” has
the meaning specified in Section 2.03.


 


“Liquidated Damages” has the
meaning specified for “Liquidated Damages” in Section 7(a) of the
Registration Rights Agreement.


 


6

















 


“Liquidated Damages Notice”
has the meaning specified in Section 4.11.


 


“Market Price” means 95% of
the average of the Closing Sale Price of one share of common stock for the
five-Trading Day period immediately preceding and including the third Business
Day immediately preceding the applicable Designated Event Redemption Date (or
if the third Business Day immediately preceding the relevant date of
determination is not a Trading Day, then on the last Trading Day immediately
preceding such third Business Day).


 


 “Non-Electing Share” has the meaning specified in Section
14.06.


 


“Note” or “Notes”
means any Note or Notes, as the case may be, authenticated and delivered under
this Indenture, including any Global Note.


 


“Note Register” has the
meaning specified in Section 2.05.


 


“Note Registrar” has the
meaning specified in Section 2.05.


 


“Noteholder” or “holder”
as applied to any Note, or other similar terms (but excluding the term “Beneficial
Holder”), means any Person in whose name at the time a particular
Note is registered on the Note Registrar’s books.


 


“Officers’ Certificate”, when
used with respect to the Company, means a certificate signed by any of the
Chairman of the Board, the Chief Executive Officer, the Chief Financial
Officer, the President or any Vice President (whether or not designated by a
number or numbers or word or words added before or after the title “Vice
President”) and any of the Controller, the Comptroller, the
Treasurer or any Assistant Treasurer, or the Secretary or Assistant Secretary
of the Company.


 


“Opinion of Counsel” means an
opinion in writing signed by legal counsel, who may be an employee of or
counsel to the Company, or other counsel reasonably acceptable to the Trustee.


 


“Outstanding”, when used with
reference to Notes and subject to the provisions of Section 8.04, means, as of
any particular time, all Notes authenticated and delivered by the Trustee under
this Indenture, except:


 


(a)           Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;


 


(b)           Notes in lieu of which, or in substitution for which,
other Notes shall have been authenticated and delivered pursuant to the terms
of Section 2.06; and


 


(c)           Notes converted into Common Stock pursuant to Article 14
and Notes deemed not outstanding pursuant to Article 3.


 


7

















 


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


 


“Portal Market” means The
Portal Market operated by the National Association of Securities Dealers, Inc.
or any successor thereto.


 


“Predecessor Note” of any
particular Note means every previous Note evidencing all or a portion of the
same debt as that evidenced by such particular Note, and, for the purposes of
this definition, any Note authenticated and delivered under Section 2.06 in
lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the lost, destroyed or stolen Note that it replaces.


 


“Premium” means any premium
payable under the terms of the Notes.


 


“Purchased Shares” has the
meaning specified in Section 14.05(f).


 


“QIB” means a “qualified
institutional buyer” as defined in Rule 144A.


 


“Record Date” has the meaning
specified in Section 14.05(g).


 


“Redemption Notice” has the
meaning specified in Section 3.01(a).


 


“Registration Rights Agreement”
means the Registration Rights Agreement, dated as of April 6, 2004, between the
Company and the Initial Purchasers, as amended from time to time in accordance
with its terms.


 


“Responsible Officer” shall mean,
when used with respect to the Trustee, any officer within the corporate trust
department of the Trustee, including any vice president, assistant vice
president, assistant treasurer or trust officer with direct responsibility for
the administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of such person’s knowledge of any familiarity with the
particular subject.


 


“Restricted Securities” has
the meaning specified in Section 2.05(c).


 


“Rule 144A” means Rule 144A as
promulgated under the Securities Act.


 


“Securities” has the meaning
specified in Section 14.05(d).


 


“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder, as in effect from time to time.


 


“Significant Subsidiary”
means, as of any date of determination, a Subsidiary of the Company that would
constitute a “significant subsidiary” as


 


8

















 


such term is defined under Rule 1-02(w) of Regulation S-X of the
Commission as in effect on the date of this Indenture.


 


“Subsidiary” means, with
respect to any Person, (i) any corporation, association or other business
entity of which more than 50% of the total voting power of shares of capital
stock or other equity interest entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner or
managing general partner of which is such Person or a subsidiary of such Person
or (b) the only general partners of which are such Person or one or more
subsidiaries of such Person (or any combination thereof).


 


“Taxes” has the meaning
specified in Section 4.12.


 


“Trading Day” has the meaning
specified in Section 14.05(g).


 


“Trigger Event” has the meaning
specified in Section 14.05(d).


 


“Trust Indenture Act” means
the Trust Indenture Act of 1939, as amended, as it was in force at the date of
this Indenture, except as provided in Sections 10.03; provided that if the Trust
Indenture Act of 1939 is amended after the date hereof, the term “Trust
Indenture Act” shall mean, to the extent required by such amendment,
the Trust Indenture Act of 1939 as so amended.


 


“Trustee” means the person
identified as such in the recitals hereof and its successors and any
corporation resulting from or surviving any consolidation or merger to which it
or its successors may be a party and any successor trustee at the time serving
as successor trustee hereunder.


 


“Withholding Tax Redemption”
has the meaning specified in Section 3.06.


 


ARTICLE
2


ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES


 


Section 2.01.  Designation Amount And Issue Of Notes.  The Notes shall be
designated as “2.50% Convertible Senior Notes due 2011”.  Notes not to exceed the aggregate principal
amount of $175,000,000, or if the Company sells up to an additional $25,000,000
principal amount of its Notes pursuant to the option of the Initial Purchasers
granted pursuant to the Purchase Agreement dated as of March 31, 2004
between the Company and the Initial Purchasers, limited in aggregate principal
amount to $200,000,000, (except pursuant to Sections 2.05, 2.06, 2.10, 3.01 and
14.02 hereof) upon the execution of this Indenture, or from time to time
thereafter, may be executed by the Company and delivered to the


 


9

















 


Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Notes to or upon the written order of
the Company, signed by its Chairman of the Board, Chief Executive Officer,
Chief Financial Officer, President or any Vice President (whether or not
designated by a number or numbers or word or words added before or after the
title “Vice
President”), the Treasurer or any Assistant Treasurer or the
Secretary or Assistant Secretary, without any further action by the Company
hereunder.


 


Section 2.02.  Form of Notes.  The Notes and the Trustee’s certificate of
authentication to be borne by such Notes shall be substantially in the form set
forth in Exhibit A.  The terms and
provisions contained in the form of Note attached as Exhibit A hereto shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.


 


Any of the Notes may have
such letters, numbers or other marks of identification and such notations,
legends, endorsements or changes as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Indenture, or as may be required by
the Custodian, the Depositary or by the National Association of Securities
Dealers, Inc. in order for the Notes to be tradable on The Portal Market or as
may be required for the Notes to be tradable on any other market developed for
trading of securities pursuant to Rule 144A or as may be required to comply
with any applicable law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any securities exchange or automated quotation
system on which the Notes may be listed, or to conform to usage, or to indicate
any special limitations or restrictions to which any particular Notes are
subject.


 


So long as the Notes are
eligible for book-entry settlement with the Depositary, or unless otherwise
required by law, or otherwise contemplated by Section 2.05(a), all of the Notes
will be represented by one or more Notes in global form registered in the name
of the Depositary or the nominee of the Depositary (a “Global Note”).  The transfer and exchange of beneficial
interests in any such Global Note shall be effected through the Depositary in
accordance with this Indenture and the applicable procedures of the
Depositary.  Except as provided in
Section 2.05(a), beneficial owners of a Global Note shall not be entitled to
have certificates registered in their names, will not receive or be entitled to
receive physical delivery of certificates in definitive form and will not be
considered holders of such Global Note.


 


Any Global Note shall
represent such of the outstanding Notes as shall be specified therein and shall
provide that it shall represent the aggregate amount of outstanding Notes from
time to time endorsed thereon and that the aggregate amount of outstanding
Notes represented thereby may from time to time be increased or reduced to
reflect redemptions, conversions, transfers or exchanges


 


10

















 


permitted hereby.  Any
endorsement of a Global Note to reflect the amount of any increase or decrease
in the amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in such manner and
upon instructions given by the holder of such Notes in accordance with this
Indenture.  Payment of principal of and
interest and premium, if any, on any Global Note shall be made to the holder of
such Note.


 


Section 2.03.  Date And Denomination Of Notes; Payments Of
Interest.  The Notes shall be
issuable in registered form without coupons in denominations of $1,000
principal amount and multiples thereof. 
Each Note shall be dated the date of its authentication and shall bear
interest from the date specified on the face of the form of Note attached as
Exhibit A hereto to be paid semi-annually in arrears on April 15 and
October 15 of each year, commencing October 15, 2004 (each such date, an “Interest
Payment Date”) at the rate specified on the face of the Note.  Interest on the Notes shall be computed on
the basis of a 360-day year comprised of twelve 30-day months.


 


The Person in whose name any
Note (or its Predecessor Note) is registered on the Note Register at the close
of business on any record date with respect to any interest payment date shall
be entitled to receive the interest payable on such interest payment date,
except that the interest payable upon redemption upon the occurrence of a
Designated Event will be payable to the Person to whom principal is payable
pursuant to such redemption.  Interest
shall be payable at the office of the Company maintained by the Company for
such purposes in the Borough of Manhattan, City of New York, which shall initially
be an office or agency of the Trustee. 
The Company shall pay interest (i) on any Notes in certificated form by
check mailed to the address of the Person entitled thereto as it appears in the
Note Register (or upon written notice by such Person, by wire transfer in
immediately available funds, if such Person is entitled to interest on
aggregate principal in excess of $2 million) or (ii) on any Global Note by wire
transfer of immediately available funds to the account of the Depositary or its
nominee.  The term “record date” with respect to
any interest payment date shall mean the April 1 or October 1 preceding the
applicable April 15 or October 15 Interest Payment Date, respectively.


 


Any interest on any Note
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease
to be payable to the Noteholder on the relevant record date by virtue of his
having been such Noteholder, and such Defaulted Interest shall be paid by the
Company, at its election in each case, as provided in clause (1) or (2) below:


 


(1)           The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a special record date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner.  The Company shall
notify the Trustee in writing of the amount of Defaulted


 


11

















 


Interest proposed to be paid on each Note and the date of the proposed
payment (which shall be not less than twenty-five (25) days after the receipt
by the Trustee of such notice, unless the Trustee shall consent to an earlier
date), and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit on or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. 
Thereupon the Trustee shall fix a special record date for the payment of
such Defaulted Interest which shall be not more than fifteen (15) days and not
less than ten (10) days prior to the date of the proposed payment, and not less
than ten (10) days after the receipt by the Trustee of the notice of the
proposed payment.  The Trustee shall
promptly notify the Company of such special record date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed,
first-class postage prepaid, to each holder at his address as it appears in the
Note Register, not less than ten (10) days prior to such special record
date.  Notice of the proposed payment of
such Defaulted Interest and the special record date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names the
Notes (or their respective Predecessor Notes) are registered at the close of
business on such special record date and shall no longer be payable pursuant to
the following clause (2) of this Section 2.03.


 


(2)           The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the Notes may be
listed or designated for issuance, and upon such notice as may be required by
such exchange or automated quotation system, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.


 


Section 2.04.  Execution of Notes. 
The Notes shall be signed in the name and on behalf of the Company by
the manual or facsimile signature of its Chairman of the Board, Chief Executive
Officer, Chief Financial Officer, President or any Vice President (whether or
not designated by a number or numbers or word or words added before or after
the title “Vice President”).  Only
such Notes as shall bear thereon a certificate of authentication substantially
in the form set forth on the form of Note attached as Exhibit A hereto,
manually executed by the Trustee (or an authenticating agent appointed by the
Trustee as provided by Section 15.11), shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose.  Such certificate by the Trustee (or such an
authenticating agent) upon any Note executed by the Company shall be conclusive
evidence that the Note so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this
Indenture.


 


12

















 


In case any officer of the
Company who shall have signed any of the Notes shall cease to be such officer
before the Notes so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Notes nevertheless may be
authenticated and delivered or disposed of as though the person who signed such
Notes had not ceased to be such officer of the Company, and any Note may be
signed on behalf of the Company by such persons as, at the actual date of the
execution of such Note, shall be the proper officers of the Company, although
at the date of the execution of this Indenture any such person was not such an
officer.


 


Section 2.05.  Exchange and Registration of Transfer of
Notes;
Restrictions on Transfer.  (a)   The Company shall cause to be kept at the
Corporate Trust Office a register (the register maintained in such office and
in any other office or agency of the Company designated pursuant to Section
4.02 being herein sometimes collectively referred to as the “Note
Register”) in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Notes and of
transfers of Notes.  The Note Register
shall be in written form or in any form capable of being converted into written
form within a reasonably prompt period of time.  The Trustee is hereby appointed “Note Registrar” for the
purpose of registering Notes and transfers of Notes as herein provided. The
Company may appoint one or more co-registrars in accordance with Section 4.02.


 


Upon surrender for
registration of transfer of any Note to the Note Registrar or any co-registrar,
and satisfaction of the requirements for such transfer set forth in this
Section 2.05, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Notes of any authorized denominations and of a like aggregate principal
amount and bearing such restrictive legends as may be required by this
Indenture.


 


Notes may be exchanged for
other Notes of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at any such office or
agency maintained by the Company pursuant to Section 4.02.  Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Notes which the Noteholder making the exchange is entitled to
receive bearing registration numbers not contemporaneously outstanding.


 


All Notes issued upon any registration
of transfer or exchange of Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Notes surrendered upon such registration of transfer or
exchange.


 


All Notes presented or
surrendered for registration of transfer or for exchange, redemption, or
conversion shall (if so required by the Company or the Note Registrar) be duly
endorsed, or be accompanied by a written instrument or


 


13

















 


instruments of transfer in form satisfactory to the Company, and the
Notes shall be duly executed by the Noteholder thereof or his attorney duly
authorized in writing.


 


No service charge shall be
made to any holder for any registration of, transfer or exchange of Notes, but
the Company may require payment by the holder of a sum sufficient to cover any
tax, assessment or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes.


 


Neither the Company nor the
Trustee nor any Note Registrar shall be required to exchange or register a
transfer of (a) any Notes or portions thereof surrendered for conversion
pursuant to Article 14 or (b) any Notes or portions thereof tendered for redemption
(and not withdrawn) pursuant to Section 3.01.


 


(b)           The following
provisions shall apply only to Global Notes:


 


(i)    Each
Global Note authenticated under this Indenture shall be registered in the name
of the Depositary or a nominee thereof and delivered to such Depositary or a
nominee thereof or Custodian therefor, and each such Global Note shall
constitute a single Note for all purposes of this Indenture.


 


(ii)   Notwithstanding
any other provision in this Indenture, no Global Note may be exchanged in whole
or in part for Notes registered, and no transfer of a Global Note in whole or
in part may be registered, in the name of any Person other than the Depositary
or a nominee thereof unless (A) the Depositary (i) has notified the Company
that it is unwilling or unable to continue as Depositary for such Global Note
and a successor depositary has not been appointed by the Company within ninety
days or (ii) has ceased to be a clearing agency registered under the Exchange
Act, (B) an Event of Default has occurred and is continuing or (C) the Company,
in its sole discretion, notifies the Trustee in writing that it no longer
wishes to have all the Notes represented by Global Notes.  Any Global Note exchanged pursuant to clause
(A) or (B) above shall be so exchanged in whole and not in part and any Global
Note exchanged pursuant to clause (C) above may be exchanged in whole or from
time to time in part as directed by the Company.  Any Note issued in exchange for a Global Note or any portion
thereof shall be a Global Note; provided that any such Note so issued
that is registered in the name of a Person other than the Depositary or a
nominee thereof shall not be a Global Note.


 


(iii)  Notes
issued in exchange for a Global Note or any portion thereof pursuant to clause
(ii) above shall be issued in definitive, fully registered form, without
interest coupons, shall have an aggregate principal amount equal to that of
such Global Note or portion thereof to be so exchanged, shall be registered in
such names and be in such authorized


 


14

















 


denominations as the Depositary shall designate and shall bear any
legends required hereunder.  Any Global
Note to be exchanged in whole shall be surrendered by the Depositary to the
Trustee, as Note Registrar.  With regard
to any Global Note to be exchanged in part, either such Global Note shall be so
surrendered for exchange or, if the Trustee is acting as Custodian for the
Depositary or its nominee with respect to such Global Note, the principal amount
thereof shall be reduced, by an amount equal to the portion thereof to be so
exchanged, by means of an appropriate adjustment made on the records of  the Trustee.  Upon any such surrender or adjustment, the Trustee shall
authenticate and make available for delivery the Note issuable on such exchange
to or upon the written order of the Depositary or an authorized representative
thereof.


 


(iv)  In the
event of the occurrence of any of the events specified in clause (ii) above,
the Company will promptly make available to the Trustee a reasonable supply of
certificated Notes in definitive, fully registered form, without interest
coupons.


 


(v)   Neither
any members of, or participants in, the Depositary (“Agent Members”) nor any other
Persons on whose behalf Agent Members may act shall have any rights under this
Indenture with respect to any Global Note registered in the name of the
Depositary or any nominee thereof, and the Depositary or such nominee, as the
case may be, may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner and holder of such Global Note for
all purposes whatsoever. 
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as between the
Depositary, its Agent Members and any other Person on whose behalf an Agent
Member may act, the operation of customary practices of such Persons governing
the exercise of the rights of a holder of any Note.


 


(vi)  At such
time as all interests in a Global Note have been redeemed, converted, canceled
or exchanged for Notes in certificated form, such Global Note shall, upon
receipt thereof, be canceled by the Trustee in accordance with standing
procedures and instructions existing between the Depositary and the
Custodian.  At any time prior to such
cancellation, if any interest in a Global Note is redeemed, converted, canceled
or exchanged for Notes in certificated form, the principal amount of such
Global Note shall, in accordance with the standing procedures and instructions
existing between the Depositary and the Custodian, be appropriately reduced,
and an endorsement shall be made on such Global Note, by the Trustee or the
Custodian, at the direction of the Trustee, to reflect such reduction.


 


15

















 


(c)           Every
Note that bears or is required under this Section 2.05(c) to bear the legend
set forth in this Section 2.05(c) (together with any Common Stock issued upon
conversion of the Notes and required to bear the legend set forth in Section
2.05(c), collectively, the “Restricted Securities”) shall be subject to
the restrictions on transfer set forth in this Section 2.05(c) (including those
set forth in the legend below) unless such restrictions on transfer shall be
waived by written consent of the Company, and the holder of each such
Restricted Security, by such Note holder’s acceptance thereof, agrees to be
bound by all such restrictions on transfer. 
As used in Section 2.05(c) and 2.05(d), the term “transfer” encompasses any
sale, pledge, loan, transfer or other disposition whatsoever of any Restricted
Security or any interest therein.


 


Until
the expiration of the holding period applicable to sales thereof under Rule
144(k) under the Securities Act (or any successor provision), any certificate
evidencing such Note (and all securities issued in exchange therefor or
substitution thereof, other than Common Stock, if any, issued upon conversion
thereof, which shall bear the legend set forth in Section 2.05(c), if
applicable) shall bear a legend in substantially the following form, unless
such Note has been sold pursuant to a registration statement that has been
declared effective under the Securities Act (and which continues to be
effective at the time of such transfer) or sold pursuant to Rule 144 under the
Securities Act or any similar provision then in force, or unless otherwise
agreed by the Company in writing, with written notice thereof to the Trustee:


 


THE NOTE EVIDENCED HEREBY HAS NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.  BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT); (2) AGREES THAT IT WILL NOT, PRIOR TO
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THIS NOTE UNDER RULE
144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL OR
OTHERWISE TRANSFER THIS NOTE OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS NOTE EXCEPT (A) TO AMYLIN PHARMACEUTICALS, INC. OR ANY SUBSIDIARY THEREOF,
(B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (D) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); (3)
PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(D) ABOVE),
IT WILL FURNISH TO


 


16

















 


J.P. MORGAN TRUST COMPANY, NATIONAL
ASSOCIATION, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT; AND (4) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.  IN CONNECTION WITH ANY
TRANSFER OF THIS NOTE PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE
TO SALES OF THIS NOTE UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON
THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, AS TRUSTEE (OR
A SUCCESSOR TRUSTEE, AS APPLICABLE). 
THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS
NOTE PURSUANT TO CLAUSE 2(D) ABOVE OR UPON ANY TRANSFER OF THIS NOTE UNDER RULE
144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).  THE INDENTURE CONTAINS A PROVISION REQUIRING
THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING RESTRICTION.


 


Any Note (or security issued
in exchange or substitution therefor) as to which such restrictions on transfer
shall have expired in accordance with their terms or as to conditions for
removal of the foregoing legend set forth therein have been satisfied may, upon
surrender of such Note for exchange to the Note Registrar in accordance with
the provisions of this Section 2.05, be exchanged for a new Note or Notes, of
like tenor and aggregate principal amount, which shall not bear the restrictive
legend required by this Section 2.05(c). 
If the Restricted Security surrendered for exchange is represented by a
Global Note bearing the legend set forth in this Section 2.05(c), the principal
amount of the legended Global Note shall be reduced by the appropriate
principal amount and the principal amount of a Global Note without the legend
set forth in this Section 2.05(c) shall be increased by an equal principal
amount.  If a Global Note without the
legend set forth in this Section 2.05(c) is not then outstanding, the Company
shall execute and the Trustee shall authenticate and deliver an unlegended
Global Note to the Depositary.


 


(d)           Until
the expiration of the holding period applicable to sales thereof under Rule
144(k) under the Securities Act (or any successor provision), any stock
certificate representing Common Stock issued upon conversion of any Note shall
bear a legend in substantially the following form, unless such Common Stock has
been sold pursuant to a registration statement that has been declared


 


17

















 


effective under the Securities Act (and which continues to be effective
at the time of such transfer) or pursuant to Rule 144 under the Securities Act
or any similar provision then in force, or such Common Stock has been issued
upon conversion of Notes that have been transferred pursuant to a registration
statement that has been declared effective under the Securities Act or pursuant
to Rule 144 under the Securities Act or any similar provision then in force, or
unless otherwise agreed by the Company in writing with written notice thereof
to the transfer agent:


 


THE COMMON STOCK EVIDENCED HEREBY HAS NOT
BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES
ACT”), OR ANY STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.  THE HOLDER HEREOF AGREES THAT, UNTIL THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE COMMON STOCK
EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), (1) IT WILL NOT RESELL OR OTHERWISE TRANSFER THE COMMON STOCK
EVIDENCED HEREBY EXCEPT (A) TO AMYLIN PHARMACEUTICALS, INC. OR ANY SUBSIDIARY
THEREOF, (B) TO A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) IN COMPLIANCE WITH RULE 144A, (C)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER); (2) PRIOR TO SUCH TRANSFER (OTHER THAN
A TRANSFER PURSUANT TO CLAUSE 1(D) ABOVE), IT WILL FURNISH TO AMERICAN STOCK
TRANSFER AND TRUST COMPANY, AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT,
AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) IT WILL DELIVER TO
EACH PERSON TO WHOM THE COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED (OTHER
THAN A TRANSFER PURSUANT TO CLAUSE 1(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.  THIS LEGEND WILL
BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE COMMON STOCK EVIDENCED
HEREBY PURSUANT TO CLAUSE 1(D) ABOVE OR UPON ANY TRANSFER OF THE COMMON STOCK
EVIDENCED HEREBY AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES
OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144 UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION).


 


18

















 


Any such Common Stock as to
which such restrictions on transfer shall have expired in accordance with their
terms or as to which the conditions for removal of the foregoing legend set
forth therein have been satisfied may, upon surrender of the certificates
representing such shares of Common Stock for exchange in accordance with the
procedures of the transfer agent for the Common Stock, be exchanged for a new
certificate or certificates for a like number of shares of Common Stock, which
shall not bear the restrictive legend required by this Section 2.05(d).


 


(e)           Any
Note or Common Stock issued upon the conversion of a Note that, prior to the
expiration of the holding period applicable to sales thereof under Rule 144(k)
under the Securities Act (or any successor provision), is purchased or owned by
the Company or any Affiliate thereof may not be resold by the Company or such
Affiliate unless registered under the Securities Act or resold pursuant to an
exemption from the registration requirements of the Securities Act in a
transaction which results in such Notes or Common Stock, as the case may be, no
longer being “Restricted Securities” (as defined under Rule 144).


 


(f)            The
Trustee shall have no responsibility or obligation to any Agent Members or any
other Person with respect to the accuracy of the books or records, or the acts
or omissions, of the Depositary or its nominee or of any participant or member
thereof, with respect to any ownership interest in the Notes or with respect to
the delivery to any Agent Member or other Person (other than the Depositary) of
any notice (including any notice of redemption) or the payment of any amount,
under or with respect to such Notes. 
All notices and communications to be given to the Noteholders and all
payments to be made to Noteholders under the Notes shall be given or made only
to or upon the order of the registered Noteholders (which shall be the
Depositary or its nominee in the case of a Global Note).  The rights of beneficial owners in any Global
Note shall be exercised only through the Depositary subject to the customary
procedures of the Depositary.  The
Trustee may rely and shall be fully protected in relying upon information
furnished by the Depositary with respect to its Agent Members.


 


The Trustee shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Note (including any transfers
between or among Agent Members in any Global Indenture) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the
terms of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.


 


Section 2.06.  Mutilated, Destroyed, Lost or Stolen
Notes.  In case any Note shall
become mutilated or be destroyed, lost or stolen, the Company in its discretion
may execute, and upon its written request the Trustee or an authenticating
agent appointed by the Trustee shall authenticate and make available for
delivery, a new Note, bearing a number not contemporaneously


 


19

















 


outstanding, in exchange and substitution for the
mutilated Note, or in lieu of and in substitution for the Note so destroyed,
lost or stolen.  In every case, the
applicant for a substituted Note shall furnish to the Company, to the Trustee
and, if applicable, to such authenticating agent such security or indemnity as
may be required by them to save each of them harmless for any loss, liability,
cost or expense caused by or connected with such substitution, and, in every
case of destruction, loss or theft, the applicant shall also furnish to the
Company, to the Trustee and, if applicable, to such authenticating agent
evidence to their satisfaction of the destruction, loss or theft of such Note
and of the ownership thereof.


 


Following receipt by the
Trustee or such authenticating agent, as the case may be, of satisfactory
security or indemnity and evidence, as described in the preceding paragraph,
the Trustee or such authenticating agent may authenticate any such substituted
Note and make available for delivery such Note. Upon the issuance of any
substituted Note, the Company may require the payment by the holder of a sum
sufficient to cover any tax, assessment or other governmental charge that may
be imposed in relation thereto and any other expenses connected therewith.  In case any Note which has matured or is
about to mature or has been tendered for redemption upon a Designated Event
(and not withdrawn) or is to be converted into Common Stock shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing
a substitute Note, pay or authorize the payment of or convert or authorize the
conversion of the same (without surrender thereof except in the case of a
mutilated Note), as the case may be, if the applicant for such payment or
conversion shall furnish to the Company, to the Trustee and, if applicable, to
such authenticating agent such security or indemnity as may be required by them
to save each of them harmless for any loss, liability, cost or expense caused
by or in connection with such substitution, and, in every case of destruction,
loss or theft, the applicant shall also furnish to the Company, the Trustee
and, if applicable, any paying agent or conversion agent evidence to their
satisfaction of the destruction, loss or theft of such Note and of the
ownership thereof.


 


Every substitute Note issued
pursuant to the provisions of this Section 2.06 by virtue of the fact that any
Note is destroyed, lost or stolen shall constitute an additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Note shall be
found at any time, and shall be entitled to all the benefits of (but shall be
subject to all the limitations set forth in) this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.  To the extent permitted by law, all Notes
shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment or
conversion or redemption of mutilated, destroyed, lost or stolen Notes and
shall preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment or conversion or redemption of negotiable instruments or
other securities without their surrender.


 


20

















 


Section 2.07.  Temporary Notes. 
Pending the preparation of Notes in certificated form, the Company may
execute and the Trustee or an authenticating agent appointed by the Trustee
shall, upon the written request of the Company, authenticate and deliver
temporary Notes (printed or lithographed). 
Temporary Notes shall be issuable in any authorized denomination, and
substantially in the form of the Notes in certificated form, but with such
omissions, insertions and variations as may be appropriate for temporary Notes,
all as may be determined by the Company. 
Every such temporary Note shall be executed by the Company and
authenticated by the Trustee or such authenticating agent upon the same
conditions and in substantially the same manner, and with the same effect, as
the Notes in certificated form. Without unreasonable delay, the Company will
execute and deliver to the Trustee or such authenticating agent Notes in
certificated form and thereupon any or all temporary Notes may be surrendered
in exchange therefor, at each office or agency maintained by the Company
pursuant to Section 4.02 and the Trustee or such authenticating agent shall authenticate
and make available for delivery in exchange for such temporary Notes an equal
aggregate principal amount of Notes in certificated form.  Such exchange shall be made by the Company
at its own expense and without any charge therefor.  Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits and subject to the same limitations under this
Indenture as Notes in certificated form authenticated and delivered hereunder.


 


Section 2.08.  Cancellation of Notes. 
All Notes surrendered for the purpose of payment, redemption,
conversion, exchange or registration of transfer shall, if surrendered to the
Company or any paying agent or any Note Registrar or any conversion agent, be
surrendered to the Trustee and promptly canceled by it, or, if surrendered to
the Trustee, shall be promptly canceled by it, and no Notes shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Indenture.  The Trustee shall dispose of
such canceled Notes in accordance with its customary procedures.  If the Company shall acquire any of the
Notes, such acquisition shall not operate as a redemption, or satisfaction of
the indebtedness represented by such Notes unless and until the same are
delivered to the Trustee for cancellation.


 


Section 2.09.  CUSIP Numbers. 
The Company in issuing the Notes 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 Noteholders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption 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.


 


Section 2.10.  Additional Notes. 
The Company may, without the consent of the holders, issue Additional
Notes (the “Additional Notes”) under this Indenture with the same terms
and with the same CUSIP numbers as the Notes


 


21

















 


offered hereby in an unlimited aggregate principal
amount, provided that such Additional Notes must be part of the same issue as
the notes offered hereby for United States federal income tax purposes.


 


Section 2.11.  Ranking. 
The Notes constitute a senior unsecured general obligation of the
Company, ranking equally with other existing and future senior unsecured
Indebtedness of the Company and ranking senior in right of payment to any
future Indebtedness of the Company that is expressly made subordinate to the
Notes by the terms of such Indebtedness.


 


ARTICLE
3


REDEMPTION OF NOTES


 


Section 3.01.  Redemption At Option of Holders Upon a
Designated Event.


 


(a)           If
there shall occur a Designated Event at any time prior to maturity of the
Notes, then each Noteholder shall have the right, at such holder’s option, to
require the Company to redeem for cash such holder’s Notes, in whole or any
portion thereof that is a multiple of $1,000 principal amount, on the date (the
“Designated
Event Redemption Date”) that is no earlier than thirty-one (31) days
and no later than forty-five (45) days after the date of the Designated Event
Notice (as defined in Section 3.01(b)) of such Designated Event (or, if such
45th day is not a Business Day, no later than the next succeeding Business Day)
at a redemption price equal to 100% of the principal amount thereof, plus
accrued interest and Liquidated Damages, if any, to, but excluding, the
Designated Event Redemption Date (the “Designated Event Redemption Price”).  Such redemption pursuant to this Section
3.01 shall be made at the option of the Noteholder, upon:


 


(i)    delivery
to the Trustee (or other paying agent appointed by the Company) by a Noteholder
of a duly completed form entitled “Option to Elect Redemption Upon A Designated
Event” (the “Redemption Notice”) in the form set forth on the reverse of
the Note during the period beginning at any time from the opening of business
on the date the Designated Event Notice is mailed until the close of business
on the 30th day therereafter; and


 


(ii)  delivery or book-entry transfer of the Note or
Notes to the Trustee (or other paying agent appointed by the
Company) at any time after delivery of the Designated Event Notice (together
with all necessary endorsements) at the Corporate Trust Office of the Trustee
(or other paying agent appointed by the Company) in the Borough of Manhattan ,
The City of New York, as provided in Section 4.02, such delivery being a
condition to receipt by the holder of the redemption price therefor; provided
that such redemption price shall be so paid pursuant to this Section 3.01 only
if the Note so delivered to the Trustee (or other paying


 


22

















 


agent appointed by the Company) shall conform in all respects to the
description thereof in the related Redemption Notice.


 


The Company shall redeem,
pursuant to this Section 3.01, a portion of a Note, if the principal amount of
such portion is $1,000 or a whole multiple of $1,000.  Provisions of this Indenture that apply to the redemption of all
of a Note also apply to the redemption of such portion of such Note.  Upon presentation of any Note redeemed in
part only, the Company shall execute and, upon the Company’s written direction
to the Trustee, the Trustee shall authenticate and make available for delivery
to the holder thereof, at the expense of the Company, a new Note or Notes, of
authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Notes presented.


 


Notwithstanding anything
herein to the contrary, any holder delivering to the Trustee (or other paying
agent appointed by the Company) the Redemption Notice contemplated by this
Section 3.01 shall have the right to withdraw such Redemption Notice at any
time prior to the close of business on the 15th day before the
Designated Event Redemption Date by delivery of a written notice of withdrawal
to the Trustee (or other paying agent appointed by the Company) in accordance
with Section 3.03.  After such 15th
day before the Designated Event Redemption Date, such Redemption Notice shall
be irrevocable except that the right of the holder to convert the Notes with
respect to which the redemption right is being exercised shall continue until
the close of business on the Business Day immediately preceding the Designated
Event Repurchase Date.


 


The Trustee (or other paying
agent appointed by the Company) shall promptly notify the Company of the
receipt by it of any Redemption Notice or written notice of withdrawal thereof.


 


(b)           On or before the
thirtieth day after the occurrence of any Designated Event of which it is
aware, the Company, or the Trustee at the Company’s written request (which must
be received by the Trustee at least five (5) Business Days prior to the date
the Trustee is requested to give notice as described below, unless the Trustee
shall agree in writing to a shorter period), in the name of and at the expense
of the Company, shall mail or cause to be mailed to all holders of record on
the date of the Designated Event a notice (the “Designated Event Notice”) of
the occurrence of such Designated Event and of the redemption right at the
option of the holders arising as a result thereof.  Such notice shall be mailed by first class mail.  The notice, if mailed in the manner herein
provided, shall be conclusively presumed to have been duly given, whether or
not the holder receives such notice.  If
the Company shall give such notice, the Company shall also deliver a copy of
the Designated Event Notice to the Trustee at such time as it is mailed to
Noteholders.  Concurrently with the
mailing of any Designated Event Notice, the Company shall issue a press release
announcing such Designated Event referred to in the Designated Event Notice,
the form and content of which press release shall be determined by the Company
in its sole discretion.  The failure to
issue any such press release or any defect therein shall not affect the
validity of the


 


23

















 


Designated Event Notice or any proceedings for the redemption of any
Note which any Noteholder may elect to have the Company redeem as provided in
this Section 3.01.  The Trustee shall
not be deemed to have knowledge of any Designated Event unless it has received
written notice thereof from the Company.


 


Each Designated Event
Notice, subject to the conditions set forth in Section 3.02(a), shall specify
the circumstances constituting the Designated Event, the Designated Event
Redemption Date, the price at which the Company shall be obligated to redeem
Notes, that the holder must exercise the redemption right on or prior to the
close of business on the thirtieth day after the date of the Designated Event
Notice (the “Designated Event Expiration Time”), that the holder shall have
the right to withdraw any Notes surrendered prior to the close of business on
the 15th day before the Designated Event Redemption Date, that the
holder shall have the right to convert the Notes prior to the close of business
on the Business Day before the Designated Event Redemption Date, a description
of the procedure which a Noteholder must follow to exercise such redemption
right and to withdraw any surrendered Notes, the place or places where the
holder is to surrender such holder’s Notes, the amount of interest and
Liquidated Damages, if any, accrued on each Note to the Designated Event
Redemption Date and the CUSIP number or numbers of the Notes (if then generally
in use).


 


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


 


(c)           In
the case of a reclassification, change, consolidation, merger, combination,
sale or conveyance to which Section 14.06 applies, in which the Common Stock of
the Company is changed or exchanged as a result into the right to receive
stock, securities or other property or assets (including cash), which includes
shares of Common Stock of the Company or shares of common stock of another
Person that are, or upon issuance will be, traded on a United States national
securities exchange or approved for trading on an established automated
over-the-counter trading market in the United States and such shares constitute
at the time such change or exchange becomes effective in excess of 50% of the aggregate
fair market value of such stock, securities or other property or assets
(including cash) (as determined by the Company, which determination shall be
conclusive and binding), then 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 (accompanied
by an Opinion of Counsel that such supplemental indenture complies with this
Indenture and the Trust Indenture Act as in force at the date of execution of
such supplemental indenture) modifying the provisions of this Indenture
relating to the right of holders of the Notes to cause the Company to redeem
the Notes following a Designated Event, including without limitation the applicable
provisions of this Section 3.01 and the definitions of Common Stock and
Designated Event, as appropriate, as determined in good faith by the Company
(which determination shall be conclusive and binding), to make such provisions
apply to such other


 


24

















 


Person if different from the Company and the common stock issued by
such Person (in lieu of the Company and the Common Stock of the Company).


 


(d)           The
Company will comply with the provisions of Rule 13e-4 and any other tender
offer rules under the Exchange Act to the extent then applicable in connection
with the redemption rights of the holders of Notes in the event of a Designated
Event.


 


Section 3.02.  The Company’s Right to Elect Manner of
Redemption upon a Designated Event.


 


(a)           The
Notes to be redeemed with respect to any Designated Event Redemption Date
pursuant to Section 3.01(a) may be redeemed at the election of the Company in
cash or shares of Common Stock, or if applicable, a parent corporation’s common
stock, or in any combination of cash and shares of Common Stock or such parent
corporation’s common stock, subject to the conditions set forth in Section
3.02(b). The Company shall designate, in the Designated Event Notice delivered
pursuant to Section 3.01(b), whether the Company will redeem the Notes for cash
or shares of Common Stock, or if applicable, a parent corporation’s common
stock, or if a combination thereof, the percentages of the Designated Event
Redemption Price in respect of which it will pay in cash or shares of Common
Stock, or if applicable, a parent corporation’s common stock, provided,
however, that the Company will pay cash for fractional interests in
shares of Common Stock, or if applicable, a parent corporation’s common stock.  Notwithstanding the foregoing, the Company
may redeem the Notes for shares of Common Stock only to the extent the
aggregate number of such shares to be issued would not have caused the original
issuance of the Notes to be subject to stockholder approval under the
Marketplace Rules of the Nasdaq Stock Market or the rules of such other United
States securities exchange on which the Common Stock is traded.


 


For purposes of determining
the existence of potential fractional interests, all Notes subject to redemption
by the Company held by a Holder shall be considered together (no matter how
many separate certificates are to be presented). Each Holder whose Notes are
redeemed pursuant to Section 3.01 shall receive the same percentage of cash or
shares of Common Stock, or if applicable, a parent corporation’s common stock,
in payment of the Designated Event Redemption Price for such Notes, except (i)
as provided in this (a) with regard to the payment of cash in lieu of
fractional shares of Common Stock and (ii) in the event that the Company is
unable to redeem the Notes of a Holder or Holders for shares of Common Stock
because any necessary qualifications or registrations of the shares of Common
Stock under applicable securities laws cannot be obtained, the Company may
redeem the Notes of such Holder or Holders for cash. The Company may not change
its election with respect to the consideration (or components or percentages of
components thereof) to be paid once the Company has given its Designated Event
Notice to Holders except in the event of a failure to satisfy, prior to 5:00
p.m., New York City time, on the Business Day


 


25

















 


immediately preceding the Designated Event Redemption Date, any
condition to the payment of the Designated Event Redemption Price, in whole or
in part, in shares of Common Stock or, if applicable, a parent corporation’s
common stock.


 


(b)           If
the Company elects to pay all or a portion of the Designated Event Redemption
Price in respect of which a Designated Event Notice has been given in Common
Stock, or if applicable, a parent corporation’s common stock, the number of
shares of Common Stock, or if applicable, a parent corporation’s common stock,
to be issued shall be equal to (i) the portion of the Designated Event
Redemption Price to be paid in Common Stock, or if applicable, a parent
corporation’s common stock, divided by (ii) the Market Price of one share of
Common Stock, or if applicable, a parent corporation’s common stock, subject to
satisfaction of the conditions set forth in the second succeeding paragraph.


 


The Company will not issue
any fraction of a share of Common Stock in payment of the Designated Event
Repurchase Price. Instead, the Company will make a cash payment (calculated to
the nearest cent) equal to such fraction multiplied by the Market Price of one
share of Common Stock, or if applicable, a parent corporation’s common stock.
If a Holder elects to have more than one Note purchased, the number of shares
of Common Stock shall be based on the aggregate amount of Notes to be
purchased.


 


The Company’s right to
exercise its election to redeem the Notes through the issuance of shares of
Common Stock, or if applicable, a parent corporation’s common stock, shall be
conditioned upon:


 


(i)    the
registration of such shares of Common Stock, or if applicable, a parent
corporation’s common stock, under the Securities Act and the Exchange Act, in
each case, if required;


 


(ii)   any
qualification or registration of such shares of Common Stock, or if applicable,
a parent corporation’s common stock, under applicable state securities laws, if
necessary, or the availability of an exemption from such qualification and
registration;


 


(iii)  listing
of the common stock on a United States national securities exchange or
quotation thereof in an inter-dealer quotation system of any registered United
States national securities association.


 


(iv)  the
receipt by the Trustee of an Officers’ Certificate stating: (A) that the terms
of the issuance of the shares of Common Stock, or if applicable, a parent
corporation’s common stock, are in conformity with this Indenture; (B) that the
shares of Common Stock, or if applicable, a parent corporation’s common stock,
to be issued in payment of the Designated Event Redemption Price in respect


 


26

















 


of Notes, will be validly issued, fully paid, non-assessable and free
from preemptive rights; (C) that the conditions in this clause (iv)(A) and
(iv)(B) above, the conditions in clauses (i) to (iii) above and the condition
set forth in the second succeeding paragraph regarding issuance of a press
release have been satisfied in all material respects; and (D) the number of
shares of Common Stock, or if applicable, a parent corporation’s common stock,
to be issued for each $1,000 Principal Amount of Notes and the Closing Sale
Price of a share of Common Stock on each Trading Day during the five-Trading
Day period immediately preceding and including the third Business Day
immediately proceeding the Designated Event Redemption Date; and


 


(v)   the
receipt by the Trustee of an Opinion of Counsel stating that: (A) the shares of
Common Stock, or if applicable, a parent corporation’s common stock, to be
issued by the Company in payment of the Designated Event Redemption Price in
respect of the Notes have been duly authorized, and when issued and delivered
pursuant to the terms of this Indenture in payment of the Designated Event
Redemption Price in respect of the Notes, will be validly issued, fully paid
and non-assessable and, to such counsel’s knowledge, free from preemptive
rights; and (B) the condition in clause (i) above has been satisfied in all
material respects.


 


If the foregoing conditions
are not satisfied with respect to a Holder or Holders prior to 5:00 p.m., New
York City time, on the Business Day immediately preceding the Designated Event
Redemption Date, and the Company has elected to redeem all or a portion of the
Notes pursuant to this Section 3.02 through the issuance of shares of Common
Stock, or if applicable, a parent corporation’s common stock, the Company shall
pay the entire Designated Event Redemption Price of the Notes of such Holder or
Holders in cash. Upon determination of the actual number of shares of Common
Stock, or if applicable, a parent corporation’s common stock, to be issued upon
redemption of the Notes, the Company shall be required to disseminate a press
release through a public medium as is customary for such a press release.


 


(c)           All
shares of Common Stock, or if applicable, a parent corporation’s common stock,
delivered upon redemption of the Notes shall be newly issued shares, shall be
duly authorized, validly issued, fully paid and nonassessable, and shall be
free from preemptive rights and free of any lien or adverse claim.


 


(d)           If
a Holder of a redeemed Note is paid in shares of Common Stock, or if
applicable, a parent corporation’s common stock, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on such issue of Common
Stock. However, the Holder shall pay any such tax which is due because the
Holder requests the Common Stock, or if applicable, a parent corporation’s
common stock, to be issued in a name other than the Holder’s name. The Paying
Agent may refuse to deliver the certificates representing the shares of Common
Stock, or if applicable, a parent corporation’s common stock, being issued in a


 


27

















 


name other than the Holder’s name until the Paying Agent receives a sum
sufficient to pay any tax which will be due because the shares of Common Stock,
or if applicable, a parent corporation’s common stock, are to be issued in a
name other than the Holder’s name. Nothing contained herein shall preclude any
income tax withholding required by law or regulations.


 


Section 3.03.  Effect of Redemption Notice.


 


(a)           Upon
receipt by the Trustee (or other paying agent appointed by the Company) of the
Redemption Notice specified in Section 3.01(a), the holder of the Note in
respect of which such Redemption Notice was given shall (unless such Redemption
Notice is validly withdrawn, or the holder of the Note timely elects to convert
such Note) thereafter be entitled to receive solely the Designated Event
Redemption Price with respect to such Note. 
Such redemption price shall be paid to such Noteholder, subject to
receipt of funds and/or Notes by the Trustee (or other paying agent appointed
by the Company), on the later of (x) the Designated Event Redemption Date with
respect to such Note (provided the holder has satisfied the conditions in
Section 3.01) and (y) the time of delivery of such Note to the Trustee (or
other paying agent appointed by the Company) by the holder thereof in the
manner required by Section 3.01.


 


(b)           A
Redemption Notice may be withdrawn by means of a written notice of withdrawal
delivered to the office of the Trustee (or other paying agent appointed by the
Company) in accordance with the Redemption Notice at any time prior to the
close of business on the 15th day before the Designated Event
Redemption Date, specifying:


 


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


 


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


 


(iii)  the
principal amount, if any, of such Note which remains subject to the original
Redemption Notice and which has been or will be delivered for redemption by the
Company.


 


(c)           Notwithstanding the delivery of a
Redemption Notice, a Noteholder may convert its Notes up to the close of
business on the Business Day immediately preceding the Designated Event
Redemption Date.


 


Section 3.04.  Deposit of Redemption Price.


 


(a)           Prior
to 10:00 a.m. (New York City Time) on the Designated Event Redemption Date, the
Company shall deposit with the Trustee (or other paying


 


28

















 


agent appointed by the Company; or, if the Company or a Subsidiary or
an Affiliate of either of them is acting as the paying agent, shall segregate
and hold in trust as provided in Section 4.04) an amount of cash (in
immediately available funds if deposited on such Business Day), sufficient to
pay the aggregate redemption price of all the Notes or portions thereof that
are to be redeemed as of the Designated Event Redemption Date.


 


(b)           If
the Trustee or other paying agent appointed by the Company, or the Company or a
Subsidiary or Affiliate of either of them, if such entity is acting as the
paying agent, holds cash sufficient to pay the aggregate redemption price of
all the Notes, or portions thereof, that are to be redeemed as of the Designated
Event Redemption Date, on or after the Designated Event Redemption Date (i) the
Notes will cease to be outstanding, (ii) interest on the Notes will cease to
accrue, and (iii) all other rights of the holders of such Notes will terminate,
whether or not book-entry transfer of the Notes has been made or the Notes have
been delivered to the Trustee or paying agent, other than the right to receive
the redemption price upon delivery of the Notes.


 


Section 3.05.  Repayment to the Company. 
The Trustee (or other paying agent appointed by the Company) shall
return to the Company any cash that remains unclaimed as provided in Section
12.04.


 


Section 3.06.  Redemption Upon Changes In Withholding Taxes. 
The Notes may be redeemed (the “Withholding Tax Redemption”), as a whole
but not in part, at the election of the Company, upon not less than 30 nor more
than 60 days notice (which notice shall be irrevocable), at a redemption price
equal to the Principal Amount plus accrued and unpaid interest to, but
excluding, the redemption date and Additional Amounts, if any, if the Company,
including as a result of a merger or sale of assets where a parent Person is
organized outside of the United States, has become or will become obligated to
pay Additional Amounts, on the next date on which any amount would be payable
with respect to such Notes, and such obligation cannot be avoided by the use of
reasonable measures available to the Company; provided, however, that (a) no
such notice of redemption may be given earlier than 60 days prior to the
earliest date on which the Company would be obligated to pay such Additional
Amounts, and (b) at the time such notice of redemption is given, such
obligation to pay such Additional Amounts remains in effect. Prior to the
giving of any notice of redemption described in this paragraph, the Company
shall deliver to the Trustee (i) a certificate of the Company, signed by two
executive officers of the Company, stating that the obligation to pay
Additional Amounts cannot be avoided by the Company taking reasonable measures
available to it and (ii) an Opinion of Counsel of recognized standing to the
effect that the Company has or will become obligated to pay Additional Amounts.


 


Notwithstanding the foregoing, if the Company
has given notice of a Withholding Tax Redemption as described in this Section
3.06 each Holder shall


 


29

















 


have the right to elect that such Holder’s Notes will not be subject to
such Withholding Tax Redemption.  If a
Holder elects not to be subject to a Withholding Tax Redemption, the Company
will not be required to pay any Additional Amounts as provided in Section 4.12
below with respect to payments made on such Holder’s Notes following the date
of such Withholding Tax Redemption, and all subsequent payments on such
Holder’s Notes will be subject to any tax required to be withheld or
deducted.  Holders must elect their
option to avoid a Withholding Tax Redemption by written notice to the Trustee
no later than the 15th day prior to the date of such Withholding Tax Redemption
fixed by the Company stating:


 


(1)           the name and address of the
registered Holder of the Notes subject to such election:


 


(2)           the certificate numbers and Principal
Amount of such Notes;


 


(3)                                  that the Holder
elects to avoid the Withholding Tax Redemption and that the Holder will not be
entitled to any Additional Amounts with respect to payments made on such
Holder’s Notes following the date of such Withholding Tax Redemption.


 


ARTICLE
4


PARTICULAR COVENANTS OF THE COMPANY


 


Section 4.01.  Payment of Principal, Premium and Interest.  The Company covenants and
agrees that it will duly and punctually pay or cause to be paid the principal
of and premium, if any (including the redemption price upon redemption pursuant
to Article 3), and interest, on each of the Notes at the places, at the
respective times and in the manner provided herein and in the Notes.


 


Section 4.02.  Maintenance of Office or Agency. 
The Company will maintain an office or agency in the Borough of Manhattan,
The City of New York, where the Notes may be surrendered for registration of
transfer or exchange or for presentation for payment or for conversion or
redemption 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 not
designated or appointed by the Trustee. 
If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office.


 


The Company may also from
time to time designate co-registrars and one or more 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. 
The Company will give prompt written notice to the Trustee of any such


 


30

















 


designation
or rescission and of any change in the location of any such other office or
agency.


 


The Company hereby initially
designates the Trustee as paying agent, Note Registrar, Custodian and
conversion agent and the Corporate Trust Office shall be considered as one such
office or agency of the Company for each of the aforesaid purposes.


 


So long as the Trustee is
the Note Registrar, the Trustee agrees to mail, or cause to be mailed, the
notices set forth in Section 7.10(a) and the third paragraph of Section
7.11.  If co-registrars have been
appointed in accordance with this Section, the Trustee shall mail such notices
only to the Company and the holders of Notes it can identify from its records.


 


Section 4.03.  Appointments to Fill Vacancies in Trustee’s
Office.  The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in
the manner provided in Section 7.10, a Trustee, so that there shall at all
times be a Trustee hereunder.


 


Section 4.04.  Provisions as to Paying Agent. 
(a) If the Company shall appoint a paying agent other than the Trustee,
or if the Trustee shall appoint such a paying agent, the Company will cause
such paying agent to execute and deliver to the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions of this
Section 4.04:


 


(1)           that it will hold all sums held by it
as such agent for the payment of the principal of and premium, if any, or
interest on the Notes (whether such sums have been paid to it by the Company or
by any other obligor on the Notes) in trust for the benefit of the holders of
the Notes;


 


(2)           that it will give the Trustee notice
of any failure by the Company (or by any other obligor on the Notes) to make
any payment of the principal of and premium, if any, or interest on the Notes
when the same shall be due and payable; and


 


(3)           that at any time during the
continuance of an Event of Default, upon request of the Trustee, it will
forthwith pay to the Trustee all sums so held in trust.


 


The Company shall, on or
before each due date of the principal of, premium, if any, or interest on the
Notes, deposit with the paying agent a sum (in funds which are immediately
available on the due date for such payment) sufficient to pay such principal,
premium, if any, or interest, and (unless such paying agent is the Trustee) the
Company will promptly notify the Trustee of any failure to take such action; provided
that if such deposit is made on the due date, such deposit shall be received by
the paying agent by 10:00 a.m. New York City time, on such date.


 


31

















 


(b)           If
the Company shall act as its own paying agent, it will, on or before each due
date of the principal of, premium, if any, or interest on the Notes, set aside,
segregate and hold in trust for the benefit of the holders of the Notes a sum
sufficient to pay such principal, premium, if any, or interest so becoming due
and will promptly notify the Trustee of any failure to take such action and of
any failure by the Company (or any other obligor under the Notes) to make any
payment of the principal of, premium, if any, or interest on the Notes when the
same shall become due and payable.


 


(c)           Anything
in this Section 4.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this
Indenture, or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by the Company or any paying agent hereunder as required by
this Section 4.04, such sums to be held by the Trustee upon the trusts herein
contained and upon such payment by the Company or any paying agent to the
Trustee, the Company or such paying agent shall be released from all further
liability with respect to such sums.


 


(d)           Anything
in this Section 4.04 to the contrary notwithstanding, the agreement to hold
sums in trust as provided in this Section 4.04 is subject to Sections 12.03 and
12.04.


 


The Trustee shall not be
responsible for the actions of any other paying agents (including the Company
if acting as its own paying agent) and shall have no control of any funds held
by such other paying agents.


 


Section 4.05.  Existence. 
Subject to Article 11, the Company will do or cause
to be done all things necessary to preserve and keep in full force and effect
its existence and rights (charter and statutory); provided that the Company
shall not be required to preserve any such right if the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not disadvantageous in any
material respect to the Noteholders.


 


Section 4.06.  Maintenance of Properties. 
The Company will cause all properties used or useful in the conduct of
its business or the business of any Significant Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided
that nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its business or the
business of any subsidiary and not disadvantageous in any material respect to
the Noteholders.


 


32

















 


Section 4.07.  Payment of Taxes and Other Claims. 
The Company will pay or discharge, or cause to be paid or discharged,
before the same may become delinquent, (i) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Significant
Subsidiary or upon the income, profits or property of the Company or any
Significant Subsidiary, (ii) all claims for labor, materials and supplies
which, if unpaid, might by law become a lien or charge upon the property of the
Company or any Significant Subsidiary and (iii) all stamp taxes and other
duties, if any, which may be imposed by the United States or any political
subdivision thereof or therein in connection with the issuance, transfer,
exchange, conversion or redemption of any Notes or with respect to this
Indenture;
provided that, in the case of clauses (i) and (ii), the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim (A) if the failure to do so will not, in
the aggregate, have a material adverse impact on the Company, or (B) if the
amount, applicability or validity is being contested in good faith by appropriate
proceedings.


 


Section 4.08.  Rule 144A Information Requirement. 
Within the period prior to the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or any
successor provision), the Company covenants and agrees that it shall, during
any period in which it is not subject to Section 13 or 15(d) under the Exchange
Act, make available to any holder or beneficial holder of Notes or any Common
Stock issued upon conversion thereof which continue to be Restricted Securities
in connection with any sale thereof and any prospective purchaser of Notes or
such Common Stock designated by such holder or beneficial holder, the
information required pursuant to Rule 144A(d)(4) under the Securities Act upon
the request of any holder or beneficial holder of the Notes or such Common
Stock and it will take such further action as any holder or beneficial holder
of such Notes or such Common Stock may reasonably request, all to the extent
required from time to time to enable such holder or beneficial holder to sell
its Notes or Common Stock without registration under the Securities Act within
the limitation of the exemption provided by Rule 144A, as such Rule may be
amended from time to time.  Upon the
request of any holder or any beneficial holder of the Notes or such Common
Stock, the Company will deliver to such holder a written statement as to
whether it has complied with such requirements.


 


Section 4.09.  Stay, Extension and Usury Laws.  The Company covenants (to
the extent that it may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law or other similar law which would prohibit
or forgive the Company from paying all or any portion of the principal of,
premium, if any, or interest on the Notes as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture and the Company (to the extent
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it


 


33

















 


will
not, by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law had been enacted.


 


Section 4.10.  Compliance Certificate.  The Company shall deliver to
the Trustee, within one hundred twenty (120) days after the end of each fiscal
year of the Company, an Officers’ Certificate signed by either the principal
executive officer, principal financial officer or principal accounting officer
of the Company, stating whether or not to the best knowledge of the signers
thereof the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
the status thereof of which the signers may have knowledge.


 


The Company will deliver to
the Trustee, forthwith upon becoming aware of (i) any default in the
performance or observance of any covenant, agreement or condition contained in
this Indenture, or (ii) any Event of Default, an Officers’ Certificate
specifying with particularity such default or Event of Default and further
stating what action the Company has taken, is taking or proposes to take with
respect thereto.


 


Any notice required to be
given under this Section 4.10 shall be delivered to a Responsible Officer of
the Trustee at its Corporate Trust Office.


 


Section 4.11.  Liquidated Damages Notice. 
In the event that the Company is required to pay Liquidated Damages to
holders of Notes pursuant to the Registration Rights Agreement, the Company
will provide written notice (“Liquidated Damages Notice”) to the Trustee
of its obligation to pay Liquidated Damages no later than fifteen (15) days
prior to the proposed payment date for the Liquidated Damages, and the
Liquidated Damages Notice shall set forth the amount of Liquidated Damages to
be paid by the Company on such payment date. 
The Trustee shall not at any time be under any duty or responsibility to
any holder of Notes to determine the Liquidated Damages, or with respect to the
nature, extent or calculation of the amount of Liquidated Damages when made, or
with respect to the method employed in such calculation of the Liquidated Damages.


 


Section 4.12.  Payment Of Additional Amounts. 
All payments made by the Company under the Notes will be made free and
clear of and without withholding or deduction for or on account of any present
or future taxes (other than relating to Holders’ net income), duties, levies,
imposts, assessments or governmental charges of whatever nature imposed or
levied by or on behalf of any taxing authority (“Taxes”), unless the Company
is required to withhold or deduct Taxes by law or by the interpretation or administration
thereof.  In the event that the Company
is required to so withhold or deduct any amount for or on account of any Taxes
from any payment made under the Notes, the Company will pay such


 


34

















 


additional
amounts (“Additional
Amounts”) as may be necessary so that the net amount received by
each Holder of Notes (including Additional Amounts) after such withholding or
deduction will equal the amount that such Holder would have received if such
Taxes had not been required to be withheld or deducted; provided that no
Additional Amounts will be payable with respect to a payment made to a Holder
of Notes to the extent:


 


(i)            that any such Taxes would not have been so imposed but
for the existence of any present or former connection between such Holder and
the Taxing Authority imposing such Taxes (other than the mere receipt of such
payment, acquisition, ownership or disposition of such Notes or the exercise or
enforcement of rights under such Notes or this Indenture);


 


(ii)           of any estate, inheritance, gift, sales, transfer, or
personal property Taxes imposed with respect to such Notes, except as otherwise
provided herein;


 


(iii)          that any such Taxes would not have been so imposed but for
the presentation of such Notes (where presentation is required) for payment on
a date more than 30 days after the date on which such payment became due and
payable or the date on which payment thereof is duly provided for, whichever is
later, except to the extent that the beneficiary or Holder thereof would have
been entitled to Additional Amounts had the Notes been presented for payment on
any date during such 30-day period;


 


(iv)          that such Holder would not be liable or subject to such
withholding or deduction of Taxes but for the failure to make a valid
declaration of non-residence or other similar claim for exemption, if (x) the
making of such declaration or claim is required or imposed by statute, treaty,
regulation, ruling or administrative practice of the relevant Taxing Authority
as a precondition to an exemption from, or reduction in, the relevant Taxes,
and (y) at least 60 days prior to the first payment date with respect to which
the Company shall apply this subclause (iv), the Company shall have notified
all Holders of Notes in writing that they shall be required to provide such
declaration or claim; or


 


(v)           that such Holder has elected to avoid a Withholding Tax
Redemption pursuant to the last paragraph of Section 3.06 with respect to
payments made subsequent to the date of such Withholding Tax Redemption.


 


The Company will also (i) make such
withholding or deduction of Taxes and (ii) remit the full amount of Taxes so
deducted or withheld to the relevant Taxing Authority in accordance with all
applicable laws.  The Company will use


 


35

















 


its reasonable best efforts
to obtain certified copies of tax receipts evidencing the payment of any Taxes
so deducted or withheld from each Taxing Authority imposing such Taxes. The
Company, as the case may be, will, upon request, make available to the Holders
of the Notes, within 60 days after the date the payment of any Taxes so
deducted or withheld is due pursuant to applicable law, certified copies of tax
receipts evidencing such payment by the Company, notwithstanding the Company’s
efforts to obtain such receipts, the same are not obtainable, other evidence of
such payments by the Company.


 


In the event that the Company is obligated to
pay Additional Amounts with respect to any payment of principal, interest,
redemption price or any other amount payable under or with respect to the
Notes, 30 days prior to the date such payment is due and payable, the Company,
will deliver to the Trustee an Officers’ Certificate stating the fact that such
Additional Amounts will also be payable, the amounts so payable and such other
information as is necessary to enable the Trustee to pay such Additional
Amounts to the Holders on such payment date.


 


The foregoing provisions shall survive any
termination or discharge of this Indenture and shall apply mutatis mutandis to
any jurisdiction in which any successor Person to the Company, as the case may
be, is organized or is engaged in business for tax purposes or any political
subdivisions or taxing authority or agency thereof or therein.


 


In addition, the Company will pay any stamp,
issue, registration, documentary or other similar taxes and duties, including
interest, penalties and Additional Amounts with respect thereto, payable in
connection with the conversion of redemption of the notes for stock or a
combination of stock and cash that would not have been payable but for the fact
that the stock is being issued by a non-U.S. entity.


 


Whenever in this Indenture or the Notes there
is mentioned, in any context, the payment of principal, interest, redemption
price or any other amount payable under or with respect to any Notes, such
mention shall be deemed to include mention of the payment of Additional Amounts
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof.


 


ARTICLE
5


NOTEHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE


 


Section 5.01.  Noteholders’ Lists. 
The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee, semiannually, not more than fifteen (15) days after
each April 1 and October 1 in each year beginning with October 1, 2004, and at
such other times as the Trustee may request in writing, within thirty (30) days
after receipt by the Company of any such request (or such lesser time as the
Trustee may reasonably request in order to enable it to timely provide any
notice to be provided by it hereunder), a list in such form as


 


36

















 


the
Trustee may reasonably require of the names and addresses of the holders of
Notes as of a date not more than fifteen (15) days (or such other date as the
Trustee may reasonably request in order to so provide any such notices) prior
to the time such information is furnished, except that no such list need be
furnished by the Company to the Trustee so long as the Trustee is acting as the
sole Note Registrar.


 


Section 5.02.  Preservation And Disclosure Of Lists.  (a) The Trustee shall preserve, in as current a form
as is reasonably practicable, all information as to the names and addresses of
the holders of Notes contained in the most recent list furnished to it as
provided in Section 5.01 or maintained by the Trustee in its capacity as Note
Registrar or co-registrar in respect of the Notes, if so acting.  The Trustee may destroy any list furnished
to it as provided in Section 5.01 upon receipt of a new list so furnished.


 


(b)           The
rights of Noteholders to communicate with other holders of Notes with respect
to their rights under this Indenture or under the Notes, and the corresponding
rights and duties of the Trustee, shall be as provided by the Trust Indenture
Act.


 


(c)           Every
Noteholder, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of
them shall be held accountable by reason of any disclosure of information as to
names and addresses of holders of Notes made pursuant to the Trust Indenture
Act.


 


Section 5.03.  Reports By Trustee. 
(a) Within sixty (60) days after May 15 of each year commencing with
the year 2005, the Trustee shall transmit to holders of Notes such reports
dated as of May 15 of the year in which such reports are made concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant
thereto.  In the event that no events
have occurred under the applicable sections of the Trust Indenture Act the
Trustee shall be under no duty or obligation to provide such reports.


 


(b)           A
copy of such report shall, at the time of such transmission to holders of
Notes, be filed by the Trustee with each stock exchange and automated quotation
system upon which the Notes are listed or quoted and with the Company.  The Company will promptly notify the Trustee
in writing when the Notes are listed on any stock exchange or automated
quotation system or delisted therefrom.


 


Section 5.04.  Reports by Company. 
The Company shall file with the Trustee (and the Commission if at any
time after the Indenture becomes qualified under the Trust Indenture Act), and
transmit to holders of Notes, such information, documents and other reports and
such summaries thereof, as may be required pursuant to the Trust Indenture Act
at the times and in the manner


 


37

















 


provided
pursuant to such Act, whether or not the Notes are governed by such Act; provided
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be made
available to the Trustee within fifteen (15) days after the same is so required
to be filed with the Commission. 
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on an Officers’ Certificates).


 


ARTICLE
6


REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF
DEFAULT


 


Section 6.01.  Events Of Default. 
In case one or more of the following Events of Default (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) shall have occurred and be continuing:


 


(a)           default
in the payment of any installment of interest, including Liquidated Damages, if
any, on any of the Notes as and when the same shall become due and payable, and
continuance of such default for a period of thirty (30) days; or


 


(b)           default
in the payment of the principal of or premium, if any, on any of the Notes as
and when the same shall become due and payable either at maturity or in
connection with any redemption pursuant to Article 3, by acceleration or
otherwise; or


 


(c)           default
in the Company’s obligation to convert any Notes following the exercise by the
Noteholder of the right to convert such Notes into Common Stock pursuant to and
in accordance with Article 14; or


 


(d)           default
in the Company’s obligation to provide a Designated Event Notice on a timely
basis upon a Designated Event of which the Company is aware as provided in
Section 3.01; or


 


(e)           failure
on the part of the Company duly to observe or perform any other of the
covenants or agreements on the part of the Company in the Notes or in this
Indenture (other than a covenant or agreement a default in whose performance or
whose breach is elsewhere in this Section 6.01 specifically dealt with)
continued for a period of sixty (60) days after the date on which written
notice of such failure, requiring the Company to remedy the same, shall have
been given to the Company by the Trustee, or the Company and a Responsible
Officer of the Trustee by the holders of at least twenty-five percent (25%) in
aggregate


 


38

















 


principal
amount of the Notes at the time outstanding determined in accordance with
Section 8.04; or


 


(f)            the
Company shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to the Company or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of the Company or any substantial part of the
property of the Company, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against the Company, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due; or


 


(g)           an
involuntary case or other proceeding shall be commenced against the Company
seeking liquidation, reorganization or other relief with respect to the Company
or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the Company or any
substantial part of the property of the Company, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period of sixty
(60) consecutive days; or


 


(h)
          default in the payment of
principal when due either at stated maturity or upon acceleration thereof of
any Indebtedness of the Company or of any of its Significant Subsidiaries for
borrowed money or any guarantee thereof where the aggregate principal amount
with respect to which the default or acceleration has occurred exceeds $25
million, and such Indebtedness is not discharged, or such acceleration has not
been rescinded or annulled within a period of 30 days after written notice of
such failure, requiring the Company to remedy the same, shall have been given
to the Company by the Trustee, or to the Company and the Trustee by the holders
of at least 25% in aggregate principal amount of the Notes at the time
outstanding determined in accordance with Section 8.04;


 


then, and in each and every such case (other
than an Event of Default specified in Section 6.01(f) or 6.01(g)), unless the
principal of all of the Notes shall have already become due and payable, either
the Trustee or the holders of not less than twenty-five percent (25%) in
aggregate principal amount of the Notes then outstanding hereunder determined
in accordance with Section 8.04, by notice in writing to the Company (and to
the Trustee if given by Noteholders), may declare the principal of and premium,
if any, on all the Notes and the interest and Liquidated Damages, if any, accrued
thereon to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything in this
Indenture or in the Notes contained to the contrary notwithstanding.  If an Event of Default specified in Section
6.01(f) or 6.01(g) occurs, the principal of all the Notes and the interest and
Liquidated Damages, if any, accrued thereon shall be immediately and
automatically due and payable without necessity of further action.  This provision, however, is subject to


 


39

















 


the conditions that if, at any time after the
principal of the Notes shall have been so declared due and payable, and before
any judgment or decree for the payment of the monies due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest and Liquidated Damages, if any, upon all Notes and the principal of
and premium, if any, on any and all Notes which shall have become due otherwise
than by acceleration (with interest on overdue installments of interest and
Liquidated Damages, if any (to the extent that payment of such interest is
enforceable under applicable law) and on such principal and premium, if any, at
the rate borne by the Notes, to the date of such payment or deposit) and
amounts due to the Trustee pursuant to Section 7.06, and if any and all
defaults under this Indenture, other than the nonpayment of principal of and
premium, if any, and accrued interest and Liquidated Damages, if any, on Notes
which shall have become due by acceleration, shall have been cured or waived
pursuant to Section 6.07, then and in every such case the holders of a majority
in aggregate principal amount of the Notes then outstanding, by written notice
to the Company and to the Trustee, may waive all defaults or Events of Default
and rescind and annul such declaration and its consequences; but no such waiver
or rescission and annulment shall extend to or shall affect any subsequent
default or Event of Default, or shall impair any right consequent thereon.  The Company shall notify in writing a
Responsible Officer of the Trustee, promptly upon becoming aware thereof, of
any Event of Default.


 


In case the Trustee shall
have proceeded to enforce any right under this Indenture and such proceedings
shall have been discontinued or abandoned because of such waiver or rescission
and annulment or for any other reason or shall have been determined adversely
to the Trustee, then and in every such case the Company, the holders of Notes,
and the Trustee shall be restored respectively to their several positions and
rights hereunder, and all rights, remedies and powers of the Company, the
holders of Notes, and the Trustee shall continue as though no such proceeding
had been taken.


 


Section 6.02.  Payments of
Notes on Default; Suit Therefor.  The Company covenants that (h) in
case default shall be made in the payment of any installment of interest or
Liquidated Damages, if any, upon any of the Notes as and when the same shall
become due and payable, and such default shall have continued for a period of
thirty (30) days, or (i) in case default shall be made in the payment of the
principal of or premium, if any, on any of the Notes as and when the same shall
have become due and payable, whether at maturity of the Notes or in connection
with any redemption, by or under this Indenture, declaration or otherwise,
then, upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the holders of the Notes, the whole amount that then shall have
become due and payable on all such Notes for principal and premium, if any, or
interest and Liquidated Damages, if any, as the case may be, with interest upon
the overdue principal and premium, if any, and (to the extent that payment of
such interest is enforceable under applicable law) upon the overdue


 


40



















installments of interest and Liquidated
Damages, if any, at the rate borne by the Notes, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other amounts due the Trustee under
Section 7.06.  Until such demand by
the Trustee, the Company may pay the principal of and premium, if any, and
interest and Liquidated Damages, if any, on the Notes to the registered
holders, whether or not the Notes are overdue.


 


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


 


In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Notes under Title
11 of the United States Code, or any other applicable law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Company or such other obligor, the property of the Company or
such other obligor, or in the case of any other judicial proceedings relative
to the Company or such other obligor upon the Notes, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this
Section 6.02, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal, premium, if any, and interest and Liquidated Damages, if
any, owing and unpaid in respect of the Notes, and, in case of any judicial
proceedings, 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 and of the
Noteholders allowed in such judicial proceedings relative to the Company or any
other obligor on the Notes, its or their creditors, or its or their property,
and to collect and receive any monies or other property payable or deliverable
on any such claims, and to distribute the same after the deduction of any
amounts due the Trustee under Section 7.06, and to take any other action
with respect to such claims, including participating as a member of any
official committee of creditors, as it reasonably deems necessary or advisable,
and, unless prohibited by law or applicable regulations, and any receiver,
assignee or trustee in bankruptcy or reorganization, liquidator, custodian or
similar official is hereby authorized by each of the Noteholders 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


 


41

















 


Noteholders, to pay to the Trustee any amount due it for reasonable
compensation, expenses, advances and disbursements, including counsel fees and
expenses incurred by it up to the date of such distribution.  To the extent that such payment of
reasonable compensation, expenses, advances and disbursements out of the estate
in any such proceedings 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, monies, securities and other property which the
holders of the Notes may be entitled to receive in such proceedings, whether in
liquidation or under any plan of reorganization or arrangement or otherwise.


 


All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Trustee without the possession
of any of the Notes, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the holders of the Notes.


 


In any proceedings brought by the Trustee (and in any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the
holders of the Notes, and it shall not be necessary to make any holders of the
Notes parties to any such proceedings.


 


Section 6.03.  Application of Monies Collected By
Trustee.  Any monies
collected by the Trustee pursuant to this Article 6 shall be applied in
the order following, at the date or dates fixed by the Trustee for the
distribution of such monies, upon presentation of the several Notes, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:


 


FIRST: To the payment of all amounts due the Trustee under
Section 7.06;


 


SECOND: In case the principal of the outstanding Notes shall not have
become due and be unpaid, to the payment of interest and Liquidated Damages on
the Notes in default in the order of the maturity of the installments of such
interest and Liquidated Damages, with interest and Liquidated Damages (to the
extent that such interest and Liquidated Damages have been collected by the
Trustee) upon the overdue installments of interest at the rate borne by the
Notes, such payments to be made ratably to the Persons entitled thereto;


 


THIRD: In case the principal of the outstanding Notes shall have become
due, by declaration or otherwise, and be unpaid to the payment of the whole
amount then owing and unpaid upon the Notes for principal and premium, if any,
and interest and Liquidated Damages, with interest on the overdue principal and
premium, if any, and (to the extent that such interest has been collected by
the Trustee) upon overdue installments of interest at the rate borne by the
Notes, and


 


42

















 


in case such monies shall be insufficient to pay in full the whole
amounts so due and unpaid upon the Notes, then to the payment of such principal
and premium, if any, and interest and Liquidated Damages without preference or
priority of principal and premium, if any, over interest, or of interest and
Liquidated Damages over principal and premium, if any, or of any installment of
interest and Liquidated Damages over any other installment of interest and
Liquidated Damages, or of any Note over any other Note, ratably to the
aggregate of such principal and premium, if any, and accrued and unpaid
interest and Liquidated Damages; and


 


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


 


Section 6.04.  Proceedings by Noteholder.  No Noteholder shall have any
right by virtue of or by reference to any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture, or for the appointment of a receiver, trustee,
liquidator, custodian or other similar official, or for any other remedy
hereunder, unless such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof, as
hereinbefore provided, and unless also the holders of not less than twenty-five
percent (25%) in aggregate principal amount of the Notes then outstanding shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable security or indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for sixty (60) days after its receipt of such notice, request and offer
of indemnity, shall have neglected or refused to institute any such action,
suit or proceeding and no direction inconsistent with such written request
shall have been given to the Trustee pursuant to Section 6.07; it being
understood and intended, and being expressly covenanted by the taker and holder
of every Note with every other taker and holder and the Trustee, that no one or
more Noteholders shall have any right in any manner whatever by virtue of or by
reference to any provision of this Indenture to affect, disturb or prejudice
the rights of any other holder of Notes, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all Noteholders (except as otherwise provided
herein).  For the protection and
enforcement of this Section 6.04, each and every Noteholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.


 


Notwithstanding any other provision of this Indenture and any provision
of any Note, the right of any Noteholder to receive payment of the principal of
and premium, if any (including the redemption price upon redemption pursuant to
Article 6), and accrued interest on such Note, on or after the respective
due dates expressed in such Note or in the event of redemption, or to institute
suit for the enforcement of any such payment on or after such respective dates
against the


 


43

















 


Company shall not be impaired or affected without the consent of such
Noteholder.


 


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


 


Section 6.05.  Proceedings By Trustee.  In case of an Event of Default,
the Trustee may, in its discretion, proceed to protect and enforce the rights
vested in it by this Indenture by such appropriate judicial proceedings as are
necessary to protect and enforce any of such rights, either by suit in equity
or by action at law or by proceeding in bankruptcy or otherwise, whether for
the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.


 


Section 6.06.  Remedies Cumulative And Continuing.  Except as provided in
Section 2.06, all powers and remedies given by this Article 6 to the
Trustee or to the Noteholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the Noteholders, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Noteholder to exercise any right or power accruing upon any default
or Event of Default occurring and continuing as aforesaid shall impair any such
right or power, or shall be construed to be a waiver of any such default or any
acquiescence therein, and, subject to the provisions of Section 6.04,
every power and remedy given by this Article 6 or by law to the Trustee or
to the Noteholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Noteholders.


 


Section 6.07.  Direction of Proceedings and Waiver of
Defaults By Majority of Noteholders.  The
holders of a majority in aggregate principal amount of the Notes at the time
outstanding determined in accordance with Section 8.04 shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee;
provided that (a) such direction shall not be in conflict with any
rule of law or with this Indenture, (b) the Trustee may take any other action
which is not inconsistent with such direction, (c) the Trustee may decline to
take any action that would benefit some Noteholder to the detriment of other
Noteholders and (d) the Trustee may decline to take any action that would
involve the Trustee in personal liability. 
The holders of a majority in aggregate principal amount of the Notes at
the time outstanding determined in accordance with Section 8.04 may, on
behalf of the holders of all of the Notes, waive any past, current or future
breach of any provision hereof, or default or Event of


 


44

















 


Default hereunder and its consequences except
(i) a default in the payment of Interest or premium, if any, on, or the
principal of, the Notes, (ii) a failure by the Company to convert any Notes
into Common Stock, (iii) a default in the payment of the redemption price pursuant
to Article 3 or (iv) a default in respect of a covenant or provisions
hereof which under Article 10 cannot be modified or amended without the
consent of the holders of each or all Notes then outstanding or affected
thereby.  Upon any such waiver, the Company,
the Trustee and the holders of the Notes shall be restored to their former
positions and rights hereunder; but no such waiver shall extend to any
subsequent other breach of any provision hereof or other default or Event of
Default or impair any right consequent thereon.  Whenever any other breach of any provision hereof or default or
Event of Default hereunder shall have been waived as permitted by this
Section 6.07, said other breach of any provision hereof or default or
Event of Default shall for all purposes of the Notes and this Indenture be
deemed to have been cured and to be not continuing; but no such waiver shall
extend to any subsequent other breach of any provision hereof or other default
or Event of Default or impair any right consequent thereon.


 


Section 6.08.  Notice of Defaults.  The Trustee shall, within ninety
(90) days after a Responsible Officer of the Trustee has knowledge of the
occurrence of a default, mail to all Noteholders, as the names and addresses of
such holders appear upon the Note Register, notice of all defaults known to a
Responsible Officer, unless such defaults shall have been cured or waived
before the giving of such notice; provided that except in the case of
Default in the payment of the principal of, or premium, if any, or interest or
Liquidated Damages on any of the Notes, the Trustee shall be protected in
withholding such notice if and so long as a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that the withholding
of such notice is in the interests of the Noteholders.


 


Section 6.09.  Undertaking
To Pay Costs.  All parties to
this Indenture agree, and each Noteholder by his acceptance thereof shall be
deemed to have agreed, that any court may, in its discretion, require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit and that such court may in its discretion assess reasonable costs,
including reasonable attorneys’ fees and expenses, against any party litigant
in such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided that the provisions of this
Section 6.09 (to the extent permitted by law) shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Noteholder, or group
of Noteholders, holding in the aggregate more than ten percent in principal
amount of the Notes at the time outstanding determined in accordance with
Section 8.04, or to any suit instituted by any Noteholder for the
enforcement of the payment of the principal of or premium, if any, or interest
on any Note on or after the due date expressed in such Note or to any suit for
the


 


45

















 


enforcement of the right to convert any Note
in accordance with the provisions of Article 14.


 


ARTICLE 7


THE TRUSTEE


 


Section 7.01.  Duties and Responsibilities of Trustee.  The Trustee, prior to the
occurrence of an Event of Default and after the curing of all Events of Default
which may have occurred, undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture.  In case an Event of Default has occurred (which has not been
cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.


 


No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:


 


(a)                                  prior to the
occurrence of an Event of Default and after the curing or waiving of all Events
of Default which may have occurred:


 


(i)             the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Indenture and the Trust Indenture Act, and the Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture and the Trust Indenture Act
against the Trustee; and


 


(ii)          in the absence of bad
faith and willful misconduct on the part of the Trustee, the Trustee may
conclusively rely as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but, in the case
of any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein);


 


(b)                                 the Trustee shall not
be liable for any error of judgment made in good faith by a Responsible Officer
or Officers of the Trustee, unless the Trustee was negligent in ascertaining
the pertinent facts;


 


(c)                                  the Trustee shall not
be liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the written direction of


 


46

















 


the holders of not less than a majority in
principal amount of the Notes at the time outstanding determined as provided in
Section 8.04 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture;


 


(d)                                 whether or not therein
provided, every provision of this Indenture relating to the conduct or
affecting the liability of, or affording protection to, the Trustee shall be
subject to the provisions of this Section;


 


(e)                                  the Trustee shall not
be liable in respect of any payment (as to the correctness of amount,
entitlement to receive or any other matters relating to payment) or notice
effected by the Company or any paying agent or any records maintained by any
co-registrar with respect to the Notes;


 


(f)                                    if any party fails
to deliver a notice relating to an event the fact of which, pursuant to this
Indenture, requires notice to be sent to the Trustee, the Trustee may
conclusively rely on its failure to receive such notice as reason to act as if
no such event occurred; and


 


(g)                                 the Trustee shall not
be deemed to have knowledge of any Default or Event of Default hereunder unless
it shall have been notified in writing of such Default or Event of Default by
the Company or the holders of at least 10% in aggregate principal amount of the
Notes.


 


None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers.


 


Section 7.02.  Reliance on
Documents, Opinions, Etc.  Except
as otherwise provided in Section 7.01:


 


(a)                                  the Trustee may
conclusively rely and shall be protected in acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, Note, note, coupon or other paper or document (whether in its
original or facsimile form) believed by it in good faith to be genuine and to
have been signed or presented by the proper party or parties;


 


(b)                                 any request,
direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in
respect thereof be herein specifically prescribed); and any resolution of the
Board of Directors may be evidenced to the Trustee by a copy thereof certified
by the Secretary or an Assistant Secretary of the Company;


 


(c)                                  the Trustee may
consult with counsel of its own selection and any advice or Opinion of Counsel
shall be full and complete authorization and


 


47

















 


protection in respect of any action taken or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;


 


(d)                                 the Trustee shall be
under no obligation to exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of any of the Noteholders
pursuant to the provisions of this Indenture, unless such Noteholders shall
have offered to the Trustee reasonable security or indemnity satisfactory to it
against the costs, expenses and liabilities which may be incurred therein or
thereby;


 


(e)                                  the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, Note or other paper or document, but
the Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney at the sole
cost of the Company and shall incur no liability or additional liability of any
kind by reason of such inquiry or investigation;


 


(f)                                    the Trustee may
execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys and the Trustee shall not
be responsible for any misconduct or negligence on the part of any agent or
attorney appointed by it with due care hereunder;


 


(g)                                 the Trustee shall not
be liable for any action taken, suffered or omitted to be taken by it in good
faith and reasonably believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Indenture;


 


(h)                                 the rights,
privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and each agent, custodian and other Person employed to act hereunder;


 


(i)                                     the Trustee may
request that the Company deliver an Officers’ Certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which Officers’ Certificate may
be signed by any person authorized to sign an Officers’ Certificate, including
any person specified as so authorized in any such certificate previously
delivered and not superseded;


 


(j)                                     any permissive
right or authority granted to the Trustee shall not be construed as a mandatory
duty; and


 


(k)                                  in no event shall the
Trustee be responsible or liable for special, indirect or consequential loss or
damage of any kind whatsoever (including, but


 


48

















 


not limited to, loss of profit) irrespective
of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.


 


Section 7.03.  No Responsibility For Recitals, Etc.  The recitals contained herein and
in the Notes (except in the Trustee’s certificate of authentication) shall be
taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same.  The
Trustee makes no representations as to the validity, sufficiency or priority of
this Indenture or of the Notes.  The
Trustee shall not be accountable for the use or application by the Company of
any Notes or the proceeds of any Notes authenticated and delivered by the
Trustee in conformity with the provisions of this Indenture.


 


Section 7.04.  Trustee, Paying Agents, Conversion Agents or
Registrar May Own Notes.  The
Trustee, any paying agent, any conversion agent or Note Registrar, in its
individual or any other capacity, may become the owner or pledgee of Notes with
the same rights it would have if it were not Trustee, paying agent, conversion
agent or Note Registrar.


 


Section 7.05.  Monies to Be Held in Trust.  Subject to the provisions of
Section 12.04, all monies received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received.  Money held by the
Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law.  The Trustee
shall be under no liability for interest on any money received by it hereunder
except as may be agreed in writing from time to time by the Company and the
Trustee.


 


Section 7.06.  Compensation
and Expenses of Trustee.  The
Company covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation for all services rendered by it
hereunder in any capacity (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) as mutually
agreed to from time to time in writing between the Company and the Trustee, and
the Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith.  The Company also covenants to indemnify the
Trustee and any predecessor Trustee (and any officer, director or employee of
the Trustee), in any capacity under this Indenture and its agents and any
authenticating agent for, and to hold them harmless against, any and all loss,
liability, damage, claim or expense including taxes (other than taxes based on
the income of the Trustee) incurred without negligence or bad faith on the part
of the Trustee or such officers, directors, employees and agent or
authenticating agent, as the case may be, and arising out of or in connection
with the acceptance or administration of this trust or in any other capacity
hereunder, including the costs and expenses of defending themselves against any
claim


 


49

















 


(whether asserted by the Company, any holder
or any other Person) or liability in connection with enforcing the provisions
of the Section 7.06, except to the extent that such loss, damage, claim,
liability or expense is due to its own negligence or bad faith.  The obligations of the Company under this
Section 7.06 to compensate or indemnify the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances shall be secured
by a lien prior to that of the Notes upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the holders of particular Notes.  The
obligation of the Company under this Section shall survive the
satisfaction and discharge of this Indenture and the resignation or removal of
the Trustee.


 


When the Trustee and its agents and any authenticating agent incur
expenses or render services after an Event of Default specified in
Section 6.01(f) or (g) with respect to the Company occurs, the expenses
and the compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency or similar laws.


 


Section 7.07.  Officers’
Certificate As Evidence.  Except
as otherwise provided in Section 7.01, whenever in the administration of
the provisions of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or omitting
any action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of bad faith or willful
misconduct on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers’ Certificate delivered to the Trustee.


 


Section 7.08.  Conflicting
Interests of Trustee.  If the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.


 


Section 7.09.  Eligibility
of Trustee.  There shall at
all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000 (or if such Person is a member of a bank
holding company system, its bank holding company shall have a combined capital
and surplus of at least $50,000,000). 
If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.  If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 7.09, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.


 


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Section 7.10.  Resignation
or Removal of Trustee.


 


(a)                                  The Trustee may at
any time resign by giving written notice of such resignation to the Company and
to the holders of Notes.  Upon receiving
such notice of resignation, the Company shall promptly appoint a successor
trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. 
If no successor trustee shall have been so appointed and have accepted
appointment sixty (60) days after the mailing of such notice of resignation to
the Noteholders, the resigning Trustee may, upon ten (10) Business Days’ notice
to the Company and the Noteholders, appoint a successor identified in such
notice or may petition, at the expense of the Company, any court of competent jurisdiction
for the appointment of a successor trustee, or, if any Noteholder who has been
a bona fide holder of a Note or Notes for at least six (6) months may, subject
to the provisions of Section 6.09, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee.  Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.


 


(b)                                 In case at any time
any of the following shall occur:


 


(i)             the Trustee shall
fail to comply with Section 7.08 after written request therefor by the
Company or by any Noteholder who has been a bona fide holder of a Note or Notes
for at least six (6) months; or


 


(ii)          the Trustee shall cease
to be eligible in accordance with the provisions of Section 7.09 and shall
fail to resign after written request therefor by the Company or by any such
Noteholder; or


 


(iii)       the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;


 


then, in any such case, the Company may remove the Trustee and appoint
a successor trustee by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 6.09, any Noteholder who has been a bona fide holder
of a Note or Notes for at least six (6) months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee; provided
that if no successor Trustee shall have been appointed and have accepted
appointment sixty (60) days after either the Company or the Noteholders has
removed the Trustee, or the Trustee resigns, the Trustee so removed may
petition, at the expense of the Company, any court of competent jurisdiction
for an appointment of a successor trustee. 
Such court may thereupon, after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor trustee.


 


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(c)                                  The holders of a
majority in aggregate principal amount of the Notes at the time outstanding may
at any time remove the Trustee and nominate a successor trustee which shall be
deemed appointed as successor trustee unless, within ten (10) days after notice
to the Company of such nomination, the Company objects thereto, in which case
the Trustee so removed or any Noteholder, or if such Trustee so removed or any
Noteholder fails to act, the Company, upon the terms and conditions and
otherwise as in Section 7.10(a) provided, may petition any court of
competent jurisdiction for an appointment of a successor trustee.


 


(d)                                 Any resignation or
removal of the Trustee and appointment of a successor trustee pursuant to any
of the provisions of this Section 7.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in
Section 7.11.


 


(e)                                  Notwithstanding the
replacement of the Trustee pursuant to this Section, the Company’s obligations
under Section 7.06 shall continue for the benefit of the retiring Trustee.


 


Section 7.11.  Acceptance by Successor Trustee.  Any successor trustee appointed
as provided in Section 7.10 shall execute, acknowledge and deliver to the
Company and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as trustee herein; but, nevertheless, on the written request of the
Company or of the successor trustee, the trustee ceasing to act shall, upon
payment of any amount then due it pursuant to the provisions of
Section 7.06, execute and deliver an instrument transferring to such
successor trustee all the rights and powers of the trustee so ceasing to act.  Upon request of any such successor trustee,
the Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers.  Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property and funds held or
collected by such trustee as such, except for funds held in trust for the
benefit of holders of particular Notes, to secure any amounts then due it
pursuant to the provisions of Section 7.06.


 


No successor trustee shall accept appointment as provided in this
Section 7.11 unless, at the time of such acceptance, such successor
trustee shall be qualified under the provisions of Section 7.08 and be
eligible under the provisions of Section 7.09.


 


Upon acceptance of appointment by a successor trustee as provided in
this Section 7.11, the Company (or the former trustee, at the written
direction of the Company) shall mail or cause to be mailed notice of the
succession of such trustee hereunder to the holders of Notes at their addresses
as they shall appear on the


 


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Note Register.  If the Company
fails to mail such notice within ten (10) days after acceptance of appointment
by the successor trustee, the successor trustee shall cause such notice to be
mailed at the expense of the Company.


 


Section 7.12.  Succession
By Merger.  Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee (including any trust created by this Indenture) by sale or otherwise, shall
be the successor to the Trustee hereunder without the execution or filing of
any paper or any further act on the part of any of the parties hereto, provided
that in the case of any corporation succeeding to all or substantially all of
the corporate trust business of the Trustee, such corporation shall be
qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09.


 


In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture, any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor trustee or authenticating
agent appointed by such predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee or any authenticating agent
appointed by such successor trustee may authenticate such Notes in the name of
the successor trustee; and in all such cases such certificates shall have the
full force that is provided in the Notes or in this Indenture; provided
that the right to adopt the certificate of authentication of any predecessor
Trustee or authenticate Notes in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.


 


Section 7.13.  Preferential
Collection of Claims.  If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Notes), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of the claims against the Company
(or any such other obligor).


 


ARTICLE 8


THE NOTEHOLDERS


 


Section 8.01.  Action By Noteholders.  Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Notes may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action, the holders of
such specified percentage have joined therein may be evidenced (a) by any
instrument or any


 


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number of instruments of similar tenor executed
by Noteholders in person or by agent or proxy appointed in writing, or (b) by
the record of the holders of Notes voting in favor thereof at any meeting of
Noteholders duly called and held in accordance with the provisions of
Article 9, or (c) by a combination of such instrument or instruments and
any such record of such a meeting of Noteholders.  Whenever the Company or the Trustee solicits the taking of any
action by the holders of the Notes, the Company or the Trustee may fix in
advance of such solicitation, a date as the record date for determining holders
entitled to take such action.  The
record date shall be not more than fifteen (15) days prior to the date of
commencement of solicitation of such action.


 


Section 8.02.  Proof of
Execution by Noteholders.  Subject
to the provisions of Sections 7.01, 7.02 and 9.05, proof of the execution of
any instrument by a Noteholder or its agent or proxy shall be sufficient if
made in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.  The holding of Notes shall be
proved by the registry of such Notes or by a certificate of the Note Registrar.


 


The record of any Noteholders’ meeting shall be proved in the manner provided
in Section 9.06.


 


Section 8.03.  Who Are Deemed Absolute Owners.  The Company, the Trustee, any
paying agent, any conversion agent and any Note Registrar may deem the Person
in whose name such Note shall be registered upon the Note Register to be, and
may treat it as, the absolute owner of such Note (whether or not such Note
shall be overdue and notwithstanding any notation of ownership or other writing
thereon made by any Person other than the Company or any Note Registrar) for
the purpose of receiving payment of or on account of the principal of, premium,
if any, and interest on such Note, for conversion of such Note and for all
other purposes; and neither the Company nor the Trustee nor any paying agent
nor any conversion agent nor any Note Registrar shall be affected by any notice
to the contrary.  All such payments so
made to any holder for the time being, or upon his order, shall be valid, and,
to the extent of the sum or sums so paid, effectual to satisfy and discharge
the liability for monies payable upon any such Note.


 


Section 8.04.  Company-owned
Notes Disregarded.  In
determining whether the holders of the requisite aggregate principal amount of
Notes have concurred in any direction, consent, waiver or other action under
this Indenture, Notes which are owned by the Company or any other obligor on
the Notes or any Affiliate of the Company or any other obligor on the Notes
shall be disregarded and deemed not to be outstanding for the purpose of any
such determination; provided that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, consent, waiver or other action, only Notes which a Responsible
Officer actually knows are so owned shall be so disregarded.  Notes so owned which have been pledged in
good faith may be


 


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regarded as outstanding for the purposes of
this Section 8.04 if the pledgee shall establish to the satisfaction of
the Trustee the pledgee’s right to vote such Notes and that the pledgee is not
the Company, any other obligor on the Notes or any Affiliate of the Company or
any such other obligor.  In the case of
a dispute as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.  Upon request of the Trustee, the Company shall furnish to the
Trustee promptly an Officers’ Certificate listing and identifying all Notes, if
any, known by the Company to be owned or held by or for the account of any of
the above described Persons, and, subject to Section 7.01, the Trustee
shall be entitled to accept such Officers’ Certificate as conclusive evidence
of the facts therein set forth and of the fact that all Notes not listed
therein are outstanding for the purpose of any such determination.


 


Section 8.05.  Revocation
Of Consents, Future Holders Bound.  At
any time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the holders of the percentage
in aggregate principal amount of the Notes specified in this Indenture in
connection with such action, any holder of a Note which is shown by the
evidence to be included in the Notes the holders of which have consented to
such action may, by filing written notice with the Trustee at its Corporate
Trust Office and upon proof of holding as provided in Section 8.02, revoke
such action so far as concerns such Note. 
Except as aforesaid, any such action taken by the holder of any Note
shall be conclusive and binding upon such holder and upon all future holders
and owners of such Note and of any Notes issued in exchange or substitution
therefor, irrespective of whether any notation in regard thereto is made upon
such Note or any Note issued in exchange or substitution therefor.


 


ARTICLE 9


MEETINGS OF NOTEHOLDERS


 


Section 9.01.  Purpose Of
Meetings.  A meeting of
Noteholders may be called at any time and from time to time pursuant to the
provisions of this Article 9 for any of the following purposes:


 


(1)                                  to give any notice to
the Company or to the Trustee or to give any directions to the Trustee
permitted under this Indenture, or to consent to the waiving of any default or
Event of Default hereunder and its consequences, or to take any other action
authorized to be taken by Noteholders pursuant to any of the provisions of
Article 6;


 


(2)                                  to remove the Trustee
and nominate a successor trustee pursuant to the provisions of Article 7;


 


(3)                                  to consent to the
execution of an indenture or indentures supplemental hereto pursuant to the
provisions of Section 10.02; or


 


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(4)                                  to take any other
action authorized to be taken by or on behalf of the holders of any specified
aggregate principal amount of the Notes under any other provision of this
Indenture or under applicable law.


 


Section 9.02.  Call Of Meetings By Trustee.  The Trustee, with the Company’s
consent (so long as an Event of Default has not occurred and is not continuing)
may at any time call a meeting of Noteholders to take any action specified in
Section 9.01, to be held at such time and at such place as the Trustee
shall determine.  Notice of every
meeting of the Noteholders, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting
and the establishment of any record date pursuant to Section 8.01, shall
be mailed to holders of Notes at their addresses as they shall appear on the
Note Register.  Such notice shall also
be mailed to the Company.  Such notices
shall be mailed not less than twenty (20) nor more than ninety (90) days prior
to the date fixed for the meeting.


 


Any meeting of Noteholders shall be valid without notice if the holders
of all Notes then outstanding are present in person or by proxy or if notice is
waived before or after the meeting by the holders of all Notes outstanding, and
if the Company and the Trustee are either present by duly authorized
representatives or have, before or after the meeting, waived notice.


 


Section 9.03.  Call Of
Meetings By Company Or Noteholders.  In
case at any time the Company, pursuant to a resolution of its Board of
Directors, or, if an Event of Default has occurred and is continuing, the
holders of at least ten percent (10%) in aggregate principal amount of the
Notes then outstanding, shall have requested the Trustee to call a meeting of
Noteholders, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within twenty (20) days after receipt of such request,
then the Company or such Noteholders may determine the time and the place for
such meeting and may call such meeting to take any action authorized in
Section 9.01, by mailing notice thereof as provided in Section 9.02.


 


Section 9.04.  Qualifications For Voting.  To be entitled to vote at any
meeting of Noteholders a person shall (a) be a holder of one or more Notes on
the record date pertaining to such meeting or (b) be a person appointed by an
instrument in writing as proxy by a holder of one or more Notes on the record
date pertaining to such meeting.  The
only persons who shall be entitled to be present or to speak at any meeting of
Noteholders shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.


 


Section 9.05.  Regulations.  Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Noteholders, in regard to proof of the holding of Notes and
of the appointment of proxies, and in regard to the appointment and


 


56

















 


duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it shall
think fit.


 


The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Noteholders as provided in Section 9.03, in which case the
Company or the Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. 
A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the holders of a majority in principal amount of the Notes
represented at the meeting and entitled to vote at the meeting.


 


Subject to the provisions of Section 8.04, at any meeting each
Noteholder or proxyholder shall be entitled to one vote for each $1,000
principal amount of Notes held or represented by him; provided that no vote shall
be cast or counted at any meeting in respect of any Note challenged as not
outstanding and ruled by the chairman of the meeting to be not
outstanding.  The chairman of the
meeting shall have no right to vote other than by virtue of Notes held by him
or instruments in writing as aforesaid duly designating him as the proxy to
vote on behalf of other Noteholders. 
Any meeting of Noteholders duly called pursuant to the provisions of
Section 9.02 or 9.03 may be adjourned from time to time by the holders of
a majority of the aggregate principal amount of Notes represented at the
meeting, whether or not constituting a quorum, and the meeting may be held as
so adjourned without further notice.


 


Section 9.06.  Voting.  The vote upon any resolution
submitted to any meeting of Noteholders shall be by written ballot on which
shall be subscribed the signatures of the holders of Notes or of their
representatives by proxy and the outstanding principal amount of the Notes held
or represented by them.  The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. 
A record in duplicate of the proceedings of each meeting of Noteholders
shall be prepared by the secretary of the meeting and there shall be attached
to said record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that
said notice was mailed as provided in Section 9.02.  The record shall show the principal amount
of the Notes voting in favor of or against any resolution.  The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one
of the duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting.


 


Any record so signed and verified shall be conclusive evidence of the
matters therein stated.


 


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Section 9.07.  No Delay Of
Rights By Meeting.  Nothing
contained in this Article 9 shall be deemed or construed to authorize or
permit, by reason of any call of a meeting of Noteholders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to the Noteholders under any of the provisions of this Indenture or
of the Notes.


 


ARTICLE 10


SUPPLEMENTAL INDENTURES


 


Section 10.01.  Supplemental Indentures Without Consent of
Noteholders.  The Company,
when authorized by the resolutions of the Board of Directors, and the Trustee
may, from time to time, and at any time enter into an indenture or indentures
supplemental hereto for one or more of the following purposes:


 


(a)                                  make provision with
respect to the conversion rights of the holders of Notes pursuant to the
requirements of Section 14.06 and the redemption obligations of the
Company pursuant to the requirements of Section 3.01(c);


 


(b)                                 to convey, transfer,
assign, mortgage or pledge to the Trustee as security for the Notes, any
property or assets;


 


(c)                                  to evidence the
succession of another Person to the Company, or successive successions, and the
assumption by the successor Person of the covenants, agreements and obligations
of the Company pursuant to Article 11;


 


(d)                                 to add to the
covenants of the Company such further covenants, restrictions or conditions as
the Board of Directors shall consider to be for the benefit of the holders of
Notes, and to make the occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions or conditions a default
or an Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided that in respect of
any such additional covenant, restriction or condition, such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default or may
limit the remedies available to the Trustee upon such default;


 


(e)                                  to provide for the
issuance under this Indenture of Notes in coupon form (including Notes
registrable as to principal only) and to provide for exchangeability of such
Notes with the Notes issued hereunder in fully registered form and to make all
appropriate changes for such purpose;


 


(f)                                    to cure any
ambiguity or to correct or supplement any provision contained herein or in any
supplemental indenture that may be defective or inconsistent with any other
provision contained herein or in any supplemental


 


58

















 


indenture, or to change, eliminate or add any
new provisions in regard to matters or questions arising under this Indenture
that shall not materially and adversely affect the interests of the holders of
the Notes;


 


(g)                                 to evidence and
provide for the acceptance of appointment hereunder by a successor Trustee with
respect to the Notes; or


 


(h)                                 to modify, eliminate
or add to the provisions of this Indenture to such extent as shall be necessary
to effect the qualifications of this Indenture under the Trust Indenture Act,
or under any similar federal statute hereafter enacted.


 


Upon the written request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any supplemental indenture, the Trustee
is hereby authorized to join with the Company in the execution of any such
supplemental indenture, to make any further appropriate agreements and
stipulations that may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not
be obligated to, but may in its discretion, enter into any supplemental
indenture that affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise.


 


Any supplemental indenture authorized by the provisions of this
Section 10.01 may be executed by the Company and the Trustee without the
consent of the holders of any of the Notes at the time outstanding,
notwithstanding any of the provisions of Section 10.02.


 


Section 10.02.  Supplemental
Indenture With Consent Of Noteholders.  With
the consent (evidenced as provided in Article 8) of the holders of at
least a majority in aggregate principal amount of the Notes at the time
outstanding, the Company, when authorized by the resolutions of the Board of
Directors, and the Trustee may, from time to time and at any time, enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or any supplemental indenture or of modifying in any manner the
rights of the holders of the Notes; provided that no such supplemental
indenture shall, without the consent of the holder of each Note so affected,
(i) extend the fixed maturity of any Note, (ii) reduce the rate or extend the
time of payment of interest or Liquidated Damages, if any, thereon, (iii)
reduce the principal amount thereof or premium, if any, thereon, or reduce any
amount payable on redemption thereof, (iv) impair the right of any Noteholder
to institute suit for the payment thereof, (v) make the principal thereof or
interest, Liquidated Damages or premium, if any, thereon payable in any coin or
currency other than that provided in the Notes, (vi) change the obligation of
the Company to redeem any Note upon the happening of a Designated Event in a
manner adverse to the Noteholders, (vii) impair the right to convert the Notes
or reduce the number of shares of Common Stock or the amount of any other
property receivable upon conversion, subject to the terms set


 


59

















 


forth herein, including Section 14.06,
in each case, (viii) modify any of the provisions of this Section 10.02 or
Section 6.07, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the holder of each Note so affected, (ix) change any obligation
of the Company to maintain an office or agency in the places and for the
purposes set forth in Section 4.02, (x) reduce the quorum or voting
requirements set forth in Article 9 or (xi) reduce the aforesaid
percentage of Notes, the holders of which are required to consent to any such
supplemental indenture.


 


Upon the written request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Noteholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.


 


It shall not be necessary for the consent of the Noteholders under this
Section 10.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.


 


Section 10.03.  Effect Of Supplemental Indenture.  Any supplemental indenture
executed pursuant to the provisions of this Article 10 shall comply with
the Trust Indenture Act, as then in effect, provided that this Section 10.03
shall not require such supplemental indenture or the Trustee to be qualified
under the Trust Indenture Act prior to the time such qualification is in fact
required under the terms of the Trust Indenture Act or the Indenture has been
qualified under the Trust Indenture Act, nor shall it constitute any admission
or acknowledgment by any party to such supplemental indenture that any such
qualification is required prior to the time such qualification is in fact
required under the terms of the Trust Indenture Act or the Indenture has been
qualified under the Trust Indenture Act. 
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article 10, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitation of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of Notes shall thereafter be
determined, exercised and enforced hereunder, subject in all respects to such
modifications and amendments and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.


 


Section 10.04.  Notation On Notes.  Notes authenticated and delivered after the execution
of any supplemental indenture pursuant to the provisions of this
Article 10 may bear a notation in form approved by the Trustee as to any


 


60

















 


matter provided for in such supplemental
indenture.  If the Company or the Trustee
shall so determine, new Notes so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may, at the Company’s expense, be
prepared and executed by the Company, authenticated by the Trustee (or an
authenticating agent duly appointed by the Trustee pursuant to
Section 15.10) and delivered in exchange for the Notes then outstanding,
upon surrender of such Notes then outstanding.


 


Section 10.05.  Evidence Of Compliance Of Supplemental
Indenture To Be Furnished To Trustee.  Prior
to entering into any supplemental indenture, the Trustee shall be provided with
an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant hereto complies with the
requirements of this Article 10 and is otherwise authorized or permitted
by this Indenture.


 


ARTICLE 11


CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE


 


Section 11.01.  Company May Consolidate On Certain
Terms.  Subject to the
provisions of Section 11.02, the Company shall not consolidate or merge
with or into any other Person or Persons (whether or not affiliated with the
Company), nor shall the Company or its successor or successors be a party or
parties to successive consolidations or mergers, nor shall the Company sell,
convey, transfer or lease the property and assets of the Company substantially
as an entirety, to any other Person (whether or not affiliated with the
Company), unless: (i) the Company is the surviving Person, or the resulting,
surviving or transferee Person is organized and existing under the laws of the
United States of America, any state thereof, the District of Columbia or any
other country (in the event that the surviving Person is organized in any
jurisdiction outside of the United States, and the Noteholders are therefore
subject to non-U.S. withholding Taxes, the Company will gross up (to the extent
required under Sections 3.06 and 4.12) the Noteholders to the extent of any such
withholding Taxes);  (ii) upon any such consolidation,
merger, sale, conveyance, transfer or lease, the due and punctual payment of
the principal of and premium, if any, and interest on all of the Notes,
according to their tenor and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed by the
Company, shall be expressly assumed, by supplemental indenture satisfactory in
form to the Trustee, executed and delivered to the Trustee, by the Person (if
other than the Company) formed by such consolidation, or into which the Company
shall have been merged, or by the Person that shall have acquired or leased
such property, and such supplemental indenture shall provide for the applicable
conversion rights set forth in Section 14.06; and (iii) immediately
after giving effect to the transaction described above, no Event of Default,
and no event


 


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which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing.


 


Section 11.02.  Successor To Be Substituted.  In case of any such
consolidation, merger, sale, conveyance, transfer or lease and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due
and punctual payment of the principal of and premium, if any, and interest on
all of the Notes and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Company, such successor
Person shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as the party of this first part.  Such successor Person thereupon may cause to
be signed, and may issue either in its own name or in the name of Amylin
Pharmaceuticals, Inc. any or all of the Notes, issuable hereunder that
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor Person instead of the Company
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver, or cause to be
authenticated and delivered, any Notes that previously shall have been signed
and delivered by the officers of the Company to the Trustee for authentication,
and any Notes that such successor Person thereafter shall cause to be signed
and delivered to the Trustee for that purpose. 
All the Notes so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Notes theretofore or thereafter issued
in accordance with the terms of this Indenture as though all of such Notes had
been issued at the date of the execution hereof.  In the event of any such consolidation, merger, sale, conveyance,
transfer or lease, upon compliance with the provisions of this Article 11,
the Person named as the “Company” in the first paragraph of this
Indenture or any successor that shall thereafter have become such in the manner
prescribed in this Article 11 may be dissolved, wound up and liquidated at
any time thereafter and such Person shall be released from its liabilities as
obligor and maker of the Notes and from its obligations under this Indenture.


 


In case of any such consolidation, merger, sale, conveyance, transfer
or lease, such changes in phraseology and form (but not in substance) may be
made in the Notes thereafter to be issued as may be appropriate.


 


Section 11.03.  Opinion Of Counsel To Be Given To
Trustee.  The Trustee shall
receive an Officers’ Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or
lease and any such assumption complies with the provisions of this Article 11.


 


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ARTICLE 12


SATISFACTION AND DISCHARGE OF INDENTURE


 


Section 12.01.  Discharge Of
Indenture. When the Company shall deliver to the Trustee for
cancellation all Notes theretofore authenticated (other than any Notes that
have been destroyed, lost or stolen and in lieu of or in substitution for which
other Notes shall have been authenticated and delivered) and not theretofore
canceled, or all the Notes not theretofore canceled or delivered to the Trustee
for cancellation shall have become due and payable, and the Company shall
deposit with the Trustee, in trust, funds sufficient to pay all of the Notes
(other than any Notes that shall have been mutilated, destroyed, lost or stolen
and in lieu of or in substitution for which other Notes shall have been
authenticated and delivered) not theretofore canceled or delivered to the
Trustee for cancellation, including principal and premium, if any, and interest
and Liquidated Damages, if any, due, and if the Company shall also pay or cause
to be paid all other sums payable hereunder by the Company, then this Indenture
shall cease to be of further effect (except as to (i) rights hereunder of
Noteholders to receive payments of principal of and premium, if any, and
interest and Liquidated Damages, if any, on, the Notes and the other rights,
duties and obligations of Noteholders, as beneficiaries hereof with respect to
the amounts, if any, so deposited with the Trustee and (ii) the rights,
obligations and immunities of the Trustee hereunder), and the Trustee, on
written demand of the Company accompanied by an Officers’ Certificate and an
Opinion of Counsel as required by Section 15.05 and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture; the Company, however, hereby
agrees to reimburse the Trustee for any costs or expenses thereafter reasonably
and properly incurred by the Trustee and to compensate the Trustee for any
services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Notes.


 


Section 12.02.  Deposited
Monies To Be Held In Trust By Trustee.  Subject
to Section 12.04, all monies deposited with the Trustee pursuant to
Section 12.01, shall be held in trust for the sole benefit of the
Noteholders, and such monies shall be applied by the Trustee to the payment,
either directly or through any paying agent (including the Company if acting as
its own paying agent), to the holders of the particular Notes for the payment
or redemption of which such monies have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest and premium, if
any.


 


Section 12.03.  Paying Agent To Repay Monies Held.  Upon the satisfaction and
discharge of this Indenture, all monies then held by any paying agent of the
Notes (other than the Trustee) shall, upon written request of the Company, be
repaid to it or paid to the Trustee, and thereupon such paying agent shall be released
from all further liability with respect to such monies.


 


Section 12.04.  Return Of
Unclaimed Monies.  Subject to
the requirements of applicable law, any monies deposited with or paid to the
Trustee for payment


 


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of the principal of, premium, if any, or
interest on Notes and not applied but remaining unclaimed by the holders of
Notes for two years after the date upon which the principal of, premium, if
any, or interest on such Notes, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee on demand and all
liability of the Trustee shall thereupon cease with respect to such monies; and
the holder of any of the Notes shall thereafter look only to the Company for
any payment that such holder may be entitled to collect unless an applicable
abandoned property law designates another Person.  In the absence of a written request from the Company to return
unclaimed funds to the Company, the Trustee shall from time to time deliver all
unclaimed funds to or as directed by applicable escheat authorities, as
determined by the Trustee in its sole discretion, in accordance with the
customary practices and procedures of the Trustee.  Any unclaimed funds held by the Trustee pursuant to this
section shall be held uninvested and without any liability for interest.


 


Section 12.05.  Reinstatement.  If the Trustee or the paying
agent is unable to apply any money in accordance with Section 12.02 by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company’s
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 12.01 until such
time as the Trustee or the paying agent is permitted to apply all such money in
accordance with Section 12.02; provided that if the Company makes any
payment of interest on or principal of any Note following 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 held by the Trustee or
paying agent.


 


ARTICLE 13


IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


 


Section 13.01.  Indenture And
Notes Solely Corporate Obligations.  No
recourse for the payment of the principal of or premium, if any, or Interest on
any Note, or for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
in this Indenture or in any supplemental indenture or in any Note, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, employee, agent, officer, director or subsidiary,
as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Notes.


 


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ARTICLE 14


CONVERSION OF NOTES


 


Section 14.01.  Right To Convert.


 


(a)                                  Subject to and upon
compliance with the provisions of this Indenture, at any time prior to the
close of business on April 15, 2011, the holder of any Note shall have the
right, at such holder’s option, to convert the principal amount of the Note, or
any portion of such principal amount which is a multiple of $1,000, into fully
paid and non-assessable shares of Common Stock (as such shares shall then be
constituted) at the Conversion Rate in effect at such time, by surrender of the
Note so to be converted in whole or in part, together with any required funds,
in the manner provided in Section 14.02.


 


(b)                                 A Note in respect of
which a holder is electing to exercise its option to require redemption upon a
Designated Event pursuant to Section 3.01 may be converted in accordance
with Section 3.03.  A holder of
Notes is not entitled to any rights of a holder of Common Stock until such
holder has converted his Notes to Common Stock, and only to the extent such
Notes are deemed to have been converted to Common Stock under this
Article 14.


 


Section 14.02.  Exercise Of Conversion Privilege; Issuance Of
Common Stock On Conversion; No Adjustment For Interest Or Dividends.


 


(a)                                  In order to exercise
the conversion privilege with respect to any Note in certificated form, the
Company must receive at the office or agency of the Company maintained for that
purpose or, at the option of such holder, the Corporate Trust Office, such Note
with the original or facsimile of the form entitled “Conversion Notice” on the
reverse thereof, duly completed and manually signed, together with such Notes
duly endorsed for transfer, accompanied by the funds, if any, required by
Section 14.02(c).  Such notice
shall also state the name or names (with address or addresses) in which the
certificate or certificates for shares of Common Stock which shall be issuable
on such conversion shall be issued, and shall be accompanied by transfer or
similar taxes, if required pursuant to Section 14.07.


 


In order to exercise the conversion privilege with respect to any
interest in a Global Note, the beneficial holder must complete, or cause to be
completed, the appropriate instruction form for conversion pursuant to the
Depositary’s book-entry conversion program, deliver, or cause to be delivered,
by book-entry delivery an interest in such Global Note, furnish appropriate
endorsements and transfer documents if required by the Company or the Trustee
or conversion agent, and pay the funds, if any, required by
Section 14.02(c) and any transfer taxes if required pursuant to
Section 14.07.


 


(b)                                 As promptly as
practicable after satisfaction of the requirements for conversion set forth
above, subject to compliance with any restrictions on transfer


 


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if shares issuable on conversion are to be
issued in a name other than that of the Noteholder (as if such transfer were a
transfer of the Note or Notes (or portion thereof) so converted), the Company
shall issue and shall deliver to such Noteholder at the office or agency
maintained by the Company for such purpose pursuant to Section 4.02, a
certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such Note or portion thereof as determined by
the Company in accordance with the provisions of this Article 14 and a
check or cash in respect of any fractional interest in respect of a share of
Common Stock arising upon such conversion, calculated by the Company as
provided in Section 14.03.  In case
any Note of a denomination greater than $1,000 shall be surrendered for partial
conversion, and subject to Section 2.03, the Company shall execute and the
Trustee shall authenticate and deliver to the holder of the Note so
surrendered, without charge to him, a new Note or Notes in authorized
denominations in an aggregate principal amount equal to the unconverted portion
of the surrendered Note.


 


Each conversion shall be deemed to have been effected as to any such
Note (or portion thereof) on the date on which the requirements set forth above
in this Section 14.02 have been satisfied as to such Note (or portion
thereof), and the Person in whose name any certificate or certificates for
shares of Common Stock shall be issuable upon such conversion shall be deemed
to have become on said date the holder of record of the shares represented
thereby;
provided that any such surrender on any date when the stock transfer
books of the Company shall be closed shall constitute the Person in whose name
the certificates are to be issued as the record holder thereof for all purposes
on the next succeeding day on which such stock transfer books are open, but
such conversion shall be at the Conversion Rate in effect on the date upon
which such Note shall be surrendered.


 


(c)                                  Any Note or portion
thereof surrendered for conversion during the period from the close of business
on the record date for any interest payment date to the close of business on
the Business Day preceding the following interest payment date shall be
accompanied by payment, in immediately available funds or other funds
acceptable to the Company, of an amount equal to the interest otherwise payable
on such interest payment date on the principal amount being converted; provided
that no such payment need be made (1) if the Company has specified a Designated
Event Redemption Date following a Designated Event that is during such period,
or (2) to the extent of any overdue interest at the time of conversion with
respect to such Note.  Except as
provided above in this Section 14.02, no payment or other adjustment shall
be made for interest accrued on any Note converted or for dividends on any
shares issued upon the conversion of such Note as provided in this Article 14.


 


Upon the conversion of a Note, that portion of the accrued but unpaid
interest, with respect to the converted Note shall not be cancelled,
extinguished or forfeited, but rather shall be deemed to be paid in full to the
holder thereof through delivery of the Common Stock (together with the cash
payment, if any, in lieu of fractional shares) in exchange for the Note being
converted pursuant to the


 


66

















 


provisions hereof; and the fair market value of such shares of Common
Stock (together with any such cash payment in lieu of fractional shares) shall
be treated as issued, to the extent thereof, first in exchange for and in
satisfaction of the Company’s obligation to pay the principal amount of the
converted Note, the accrued but unpaid interest, and the balance, if any, of
such fair market value of such Common Stock (and any such cash payment) shall
be treated as issued in exchange for and in satisfaction of the right to
convert the Note being converted pursuant to the provisions hereof.


 


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


 


Section 14.03.  Cash Payments in Lieu of Fractional
Shares.  No fractional shares
of Common Stock or scrip certificates representing fractional shares shall be
issued upon conversion of Notes.  If
more than one Note shall be surrendered for conversion at one time by the same
holder, the number of full shares that shall be issuable upon conversion shall
be computed on the basis of the aggregate principal amount of the Notes (or
specified portions thereof to the extent permitted hereby) so surrendered.  If any fractional share of stock would be
issuable upon the conversion of any Note or Notes, the Company shall make an
adjustment and payment therefor in cash at the current price thereof to the
holder of Notes.  The current price of a
share of Common Stock shall be the Closing Sale Price on the last Trading Day
immediately preceding the day on which the Notes (or specified portions
thereof) are deemed to have been converted.


 


Section 14.04.  Conversion Rate.  Each $1,000 principal amount of the Notes shall be
convertible into 29.1117 shares of Common Stock (herein called the “Conversion
Rate”), subject to adjustment as provided in this Article 14.


 


Section 14.05.  Adjustment Of Conversion Rate.  The Conversion Rate shall be
adjusted from time to time by the Company as follows:


 


(a)                                  In case the Company
shall hereafter pay a dividend or make a distribution to all holders of the
outstanding Common Stock in shares of Common Stock, the Conversion Rate shall
be increased so that the same shall equal the rate determined by multiplying
the Conversion Rate in effect at the opening of business on the date following
the date fixed for the determination of stockholders entitled to receive such
dividend or other distribution by a fraction,


 


(i)             the numerator of
which shall be the sum of the number of shares of Common Stock outstanding at
the close of business on the date


 


67

















 


fixed for the determination of stockholders
entitled to receive such dividend or other distribution plus the total number
of shares of Common Stock constituting such dividend or other distribution; and


 


(ii)          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,


 


such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination.  For the purpose of this clause (a), 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 pay any dividend or make any distribution on shares
of Common Stock held in the treasury of the Company.  If any dividend or distribution of the type described in this
Section 14.05(a) is declared but not so paid or made, the Conversion Rate
shall again be adjusted to the Conversion Rate that would then be in effect if
such dividend or distribution had not been declared.


 


(b)                                 In case the Company
shall issue rights or warrants to all holders of its outstanding shares of
Common Stock entitling them (for a period expiring within forty-five (45) days
after the date fixed for determination of stockholders entitled to receive such
rights or warrants) to subscribe for or purchase shares of Common Stock at a price
per share less than the Current Market Price on the date fixed for
determination of stockholders entitled to receive such rights or warrants, the
Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior to
the date fixed for determination of stockholders entitled to receive such
rights or warrants by a fraction,


 


(i)                           the
numerator of which shall be the number of shares of Common Stock outstanding on
the date fixed for determination of stockholders entitled to receive such
rights or warrants plus the total number of additional shares of Common Stock
offered for subscription or purchase, and


 


(ii)                        the
denominator of which shall be the sum of the number of shares of Common Stock
outstanding at the close of business on the date fixed for determination of
stockholders entitled to receive such rights or warrants plus the number of
shares that the aggregate offering price of the total number of shares so
offered would purchase at such Current Market Price.


 


Such adjustment shall be successively made whenever any such rights or
warrants are issued, and shall become effective immediately after the opening
of business on the day following the date fixed for determination of stockholders
entitled to receive such rights or warrants. 
To the extent that shares of Common Stock are not delivered after the
expiration of such rights or warrants, the


 


68

















 


Conversion Rate shall be readjusted to the Conversion Rate that would
then be in effect had the adjustments made upon the issuance of such rights or
warrants been made on the basis of delivery of only the number of shares of
Common Stock actually delivered.  If
such rights or warrants are not so issued, the Conversion Rate shall again be
adjusted to be the Conversion Rate that would then be in effect if such date
fixed for the determination of stockholders entitled to receive such rights or
warrants had not been fixed.  In
determining whether any rights or warrants entitle the holders to subscribe for
or purchase shares of Common Stock at less than such Current Market Price, and
in determining the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received by the Company for
such rights or warrants and any amount payable on exercise or conversion
thereof, the value of such consideration, if other than cash, to be determined
by the Board of Directors.


 


(c)                                  In case outstanding
shares of Common Stock shall be subdivided into a greater number of shares of
Common Stock, the Conversion Rate in effect at the opening of business on the
day following the day upon which such subdivision becomes effective shall be
proportionately increased, and conversely, in case outstanding shares of Common
Stock shall be combined into a smaller number of shares of Common Stock, the
Conversion Rate in effect at the opening of business on the day following the
day upon which such combination becomes effective shall be proportionately
reduced, such increase or reduction, as the case may be, to become effective
immediately after the opening of business on the day following the day upon
which such subdivision or combination becomes effective.


 


(d)                                 In case the Company
shall, by dividend or otherwise, distribute to all holders of its Common Stock
shares of any class of capital stock of the Company or evidences of its
indebtedness or assets (including securities, but excluding any rights or
warrants referred to in Section 14.05(b), and excluding any dividend or
distribution (x) paid exclusively in cash or (y) referred to in
Section 14.05(a) (any of the foregoing hereinafter in this
Section 14.05(d)) called the “Securities”)), then, in each such case, the
Conversion Rate shall be increased so that the same shall be equal to the rate
determined by multiplying the Conversion Rate in effect on the Record Date with
respect to such distribution by a fraction,


 


(i)             the numerator of
which shall be the Current Market Price on such Record Date; and


 


(ii)          the denominator of which
shall be the Current Market Price on such Record Date less the Fair Market
Value (as determined by the Board of Directors, whose determination shall be
conclusive, and described in a resolution of the Board of Directors) on the
Record Date of the portion of the Securities so distributed applicable to one
share of Common Stock,


 


69

















 


such adjustment to become effective immediately prior to the opening of
business on the day following such Record Date; provided that if the then
fair market value (as so determined) of the portion of the Securities so
distributed applicable to one share of Common Stock is equal to or greater than
the Current Market Price on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Noteholder shall have
the right to receive upon conversion the amount of Securities such holder would
have received had such holder converted each Note on the Record Date.  If such dividend or distribution is not so
paid or made, the Conversion Rate shall again be adjusted to be the Conversion
Rate that would then be in effect if such dividend or distribution had not been
declared.  If the Board of Directors
determines the Fair Market Value of any distribution for purposes of this
Section 14.05(d) by reference to the actual or when issued trading market
for any securities, it must in doing so consider the prices in such market over
the same period used in computing the Current Market Price on the applicable
Record Date.


 


If the dividend or distribution requiring an adjustment pursuant to
this clause (d) consists of capital stock of any class or series, or similar
equity interests, of or relating to a Subsidiary or other business unit of the
Company, for purposes of making such adjustment, (i) the Current Market Price
shall be determined as of the date (the “Ex-Dividend Date”) on which “ex-dividend
trading” commences for such distribution on the Nasdaq National Market (or The
Nasdaq SmallCap Market, if applicable) or such other national or regional
exchange or market on which such securities are then listed or quoted, based on
the average of the Closing Sale Prices of the Common Stock for the ten (10)
Trading Days commencing on and including the fifth Trading Day after the
Ex-Dividend Date and (ii) the Fair Market Value of such dividend or
distribution shall equal the number of securities distributed in respect of
each share of Common Stock multiplied by the average of the closing sale prices
of those securities distributed for the ten (10) Trading Days commencing on and
including the fifth Trading Day after the Ex-Dividend Date.


 


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”): (i) are deemed to be transferred with such shares of Common
Stock; (ii) are not exercisable; and (iii) are also issued in respect of future
issuances of Common Stock, shall be deemed not to have been distributed for
purposes of this Section 14.05 (and no adjustment to the Conversion Rate
under this Section 14.05 will be required) until the occurrence of the
earliest Trigger Event, whereupon such rights and warrants shall be deemed to
have been distributed and an appropriate adjustment (if any is required) to the
Conversion Rate shall be made under this Section 14.05(d).  If any such right or warrant, including any
such existing rights or warrants distributed prior to the date of this
Indenture, are subject to events, upon the occurrence of which such rights or
warrants become


 


70

















 


exercisable to purchase different securities, evidences of indebtedness
or other assets, then the date of the occurrence of any and each such event
shall be deemed to be the date of distribution and record date with respect to
new rights or warrants with such rights (and a termination or expiration of the
existing rights or warrants without exercise by any of the holders
thereof).  In addition, in the event of
any distribution (or deemed distribution) of rights or warrants, or any Trigger
Event or other event (of the type described in the preceding sentence) with
respect thereto that was counted for purposes of calculating a distribution
amount for which an adjustment to the Conversion Rate under this Section 14.05
was made, (1) 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 or holders 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 (2) in the case of such rights or warrants that
shall have expired or been terminated without exercise by any holders thereof,
the Conversion Rate shall be readjusted as if such rights and warrants had not
been issued.


 


For purposes of this Section 14.05(d) and Section 14.05(a)
and (b), any dividend or distribution to which this Section 14.05(d) is
applicable that also includes shares of Common Stock, or such rights or
warrants to subscribe for or purchase shares of Common Stock of the type
described in Section 14.05(b) (or both), shall be deemed instead to be (1)
a dividend or distribution of the evidences of indebtedness, assets or shares
of capital stock other than such shares of Common Stock or rights or warrants
(and any Conversion Rate adjustment required by this Section 14.05(d) with
respect to such dividend or distribution shall then be made) immediately
followed by (2) a dividend or distribution of such shares of Common Stock or
such rights or warrants (and any further Conversion Rate adjustment required by
Sections 14.05(a) and 14.05(b) with respect to such dividend or distribution
shall then be made), except (A) the Record Date of such dividend or
distribution shall be substituted as “the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution”, “the
date fixed for the determination of stockholders entitled to receive such
rights or warrants” and “the date fixed for such determination” within the
meaning of Section 14.05(a) and 14.05(b) and (B) any shares of Common
Stock included in such dividend or distribution shall not be deemed
“outstanding at the close of business on the date fixed for such determination”
within the meaning of Section 14.05(a).


 


(e)                    In case the Company shall, by
dividend or otherwise, distribute to all holders of its Common Stock cash,
then, in such case, the Conversion Rate shall be increased so that the same shall
equal the rate determined by multiplying the


 


71

















 


Conversion Rate in effect immediately prior
to the close of business on such Record Date by a fraction,


 


(i)             the numerator of
which shall be the Current Market Price on such Record Date; and


 


(ii)          the denominator of which
shall be the Current Market Price on such Record Date less the amount of cash
so distributed (and not excluded as provided above) applicable to one share of
Common Stock,


 


such adjustment to be effective immediately prior to the opening of
business on the day following the record date; provided that if the
portion of the cash so distributed applicable to one share of Common Stock is
equal to or greater than the Current Market Price on the Record Date, in lieu
of the foregoing adjustment, adequate provision shall be made so that each
Noteholder shall have the right to receive upon conversion the amount of cash
such holder would have received had such holder converted each Note on the
Record Date.  If such dividend or
distribution is not so paid or made, the Conversion Rate shall again be
adjusted to be the Conversion Rate that would then be in effect if such
dividend or distribution had not been declared.  If any adjustment is required to be made as set forth in this
Section 14.05(e) as a result of a distribution that is a quarterly
dividend, such adjustment shall be based upon the amount by which such
distribution exceeds the amount of the quarterly cash dividend permitted to be
excluded pursuant hereto.  If an
adjustment is required to be made as set forth in this Section 14.05(e)
above as a result of a distribution that is not a quarterly dividend, such
adjustment shall be based upon the full amount of the distribution.


 


(f)                                    In case a tender or
exchange offer made by the Company or any Subsidiary for all or any portion of
the Common Stock shall expire and such tender or exchange offer (as amended
upon the expiration thereof) shall require the payment to stockholders of
consideration per share of Common Stock having a Fair Market Value (as
determined by the Board of Directors, whose determination shall be conclusive,
and described in a resolution of the Board of Directors) that as of the last
time (the “Expiration Time”) tenders or exchanges may be made pursuant to
such tender or exchange offer (as it may be amended) exceeds the Closing Sale
Price of a share of Common Stock on the Trading Day next succeeding the
Expiration Time, the Conversion Rate shall be increased so that the same shall
equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to the Expiration Time by a fraction,


 


(i)             the numerator of
which shall be the sum of (x) the Fair Market Value (determined as aforesaid)
of the aggregate consideration payable to stockholders based on the acceptance
(up to any maximum specified in the terms of the tender or exchange offer) of
all shares validly tendered or exchanged and not withdrawn as of the Expiration
Time (the shares deemed so accepted up to any such maximum, being referred to
as the “Purchased
Shares”) and (y) the product of the number of shares of


 


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Common Stock outstanding (less any Purchased
Shares) at the Expiration Time and the Closing Sale Price of a share of Common
Stock on the Trading Day next succeeding the Expiration Time, and


 


(ii)          the denominator of which
shall be the number of shares of Common Stock outstanding (including any
tendered or exchanged shares) at the Expiration Time multiplied by the Closing
Sale Price of a share of Common Stock on the Trading Day next succeeding the
Expiration Time,


 


such adjustment to become effective immediately prior to the opening of
business on the day following the Expiration Time.  If the Company is obligated to purchase shares pursuant to any
such tender or exchange offer, but the Company is permanently prevented by
applicable law from effecting any such purchases or all such purchases are
rescinded, the Conversion Rate shall again be adjusted to be the Conversion
Rate that would then be in effect if such tender or exchange offer had not been
made.


 


(g)                                 For purposes of this
Section 14.05, the following terms shall have the meaning indicated:


 


(i)             “Current Market Price” shall
mean the average of the daily Closing Sale Prices per share of Common Stock for
the ten consecutive Trading Days ending on the earlier of such date of
determination and the day before the “ex” date with respect to the issuance,
distribution, subdivision or combination requiring such computation immediately
prior to the date in question.  For
purpose of this clause (i), the term “ex” date, (1) when used with respect to any
issuance or distribution, means the first date on which the Common Stock
trades, regular way, on the relevant exchange or in the relevant market from
which the Closing Sale Price was obtained without the right to receive such
issuance or distribution, and (2) when used with respect to any subdivision or
combination of shares of Common Stock, means the first date on which the Common
Stock trades, regular way, on such exchange or in such market after the time at
which such subdivision or combination becomes effective.


 


If another issuance, distribution,
subdivision or combination to which Section 14.05 applies occurs during the
period applicable for calculating “Current Market Price” pursuant to the
definition in the preceding paragraph, “Current Market Price” shall be calculated
for such period in a manner determined by the Board of Directors to reflect the
impact of such issuance, distribution, subdivision or combination on the
Closing Sale Price of the Common Stock during such period.


 


(ii)          “Fair Market Value” shall mean
the amount which a willing buyer would pay a willing seller in an arm’s-length
transaction.


 


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


 


(iv)      “Trading Day” shall mean (x)
if the applicable security is quoted on the Nasdaq National Market or The
Nasdaq SmallCap Market, a day on which trades may be made thereon or (y) if the
applicable security is listed or admitted for trading on the New York Stock
Exchange or another national securities exchange, a day on which the New York
Stock Exchange or another national securities exchange is open for business or
(z) if the applicable security is not so listed, admitted for trading or
quoted, any day other than a Saturday or Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by law or
executive order to close.


 


(h)                                 The Company may make
such increases in the Conversion Rate, in addition to those required by
Section 14.05(a), (b), (c), (d), (e) or (f) as the Board of Directors
considers to be advisable to avoid or diminish any income tax to holders of
Common Stock or rights to purchase Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated as
such for income tax purposes.


 


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) days, the increase is irrevocable during the
period and the Board of Directors shall have made a determination that such
increase would be in the best interests of the Company, which determination
shall be conclusive.  Whenever the
Conversion Rate is increased pursuant to the preceding sentence, the Company
shall mail to holders of record of the Notes a notice of the increase 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. 
Notwithstanding this paragraph and the previous paragraph, the Company
may not voluntarily increase the Conversion Rate if such increase shall result
in the issuance, upon exchange of all the Notes, of a number of shares of
Common Stock in excess of the thresholds requiring stockholder approval under
the Marketplace Rules of the Nasdaq Stock Market or the rules of such other
United States securities exchange on which the Common Stock is traded, unless
the Company shall have, prior to such increase in the Conversion Rate, obtained
any such required stockholder approval.


 


(i)                                     No adjustment in
the Conversion Rate shall be required unless such adjustment would require an
increase or decrease of at least one percent (1%) in


 


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such rate; provided that any adjustments that by
reason of this Section 14.05(i) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.  All calculations under this Article 14
shall be made by the Company and shall be made to the nearest cent or to the
nearest one-ten thousandth (1/10,000) of a share, as the case may be.  No adjustment need be made for rights to
purchase Common Stock pursuant to a Company plan for reinvestment of dividends
or interest or for any issuance of Common Stock or convertible or exchangeable
securities or rights to purchase Common Stock or convertible or exchangeable
securities.  To the extent the Notes
become convertible into cash, assets, property or securities (other than
capital stock of the Company), no adjustment need be made thereafter as to the
cash, assets, property or such securities. 
Interest will not accrue on any cash into which the Notes are
convertible.


 


(j)                                     Whenever the
Conversion Rate is adjusted as herein provided, the Company shall promptly file
with the Trustee and any conversion agent other than the Trustee an Officers’
Certificate setting forth the Conversion Rate after such adjustment and setting
forth a brief statement of the facts requiring such adjustment.  Unless and until a Responsible Officer of
the Trustee shall have received such Officers’ Certificate, the Trustee shall
not be deemed to have knowledge of any adjustment of the Conversion Rate and
may assume that the last Conversion Rate of which it has knowledge is still in
effect.  Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted Conversion Rate and the date on
which each adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Rate to the holder of each Note at his last
address appearing on the Note Register provided for in Section 2.05 of
this Indenture, within twenty (20) days after execution thereof.  Failure to deliver such notice shall not
affect the legality or validity of any such adjustment.


 


(k)                                  In any case in which
this Section 14.05 provides that an adjustment shall become effective
immediately after (1) a Record Date for an event, (2) the date fixed for the
determination of stockholders entitled to receive a dividend or distribution
pursuant to Section 14.05(a), (3) a date fixed for the determination of
stockholders entitled to receive rights or warrants pursuant to
Section 14.05(b) or (4) the Expiration Time for any tender or exchange
offer pursuant to Section 14.05(f) (each a “Determination Date”), the
Company may elect to defer until the occurrence of the applicable Adjustment
Event (as hereinafter defined) (x) issuing to the holder of any Note converted
after such Determination Date and before the occurrence of such Adjustment
Event, the additional shares of Common Stock or other securities issuable upon
such conversion by reason of the adjustment required by such Adjustment Event
over and above the Common Stock issuable upon such conversion before giving
effect to such adjustment and (y) paying to such holder any amount in cash in
lieu of any fraction pursuant to Section 14.03.  For purposes of this Section 14.05(k), the term “Adjustment
Event” shall mean:


 


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(i)             in any case referred
to in clause (1) hereof, the occurrence of such event,


 


(ii)          in any case referred to
in clause (2) hereof, the date any such dividend or distribution is paid or
made,


 


(iii)       in any case referred to in
clause (3) hereof, the date of expiration of such rights or warrants, and


 


(iv)      in any case referred to in
clause (4) or clause (5) hereof, the date a sale or exchange of Common Stock
pursuant to such tender or exchange offer is consummated and becomes
irrevocable.


 


(l)                                     For purposes of
this Section 14.05, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but
shall include shares issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock. 
The Company will not pay any dividend or make any distribution on shares
of Common Stock held in the treasury of the Company.


 


Section 14.06.  Effect Of
Reclassification, Consolidation, Merger or Sale.  If any of the following events occur, namely (i) any
reclassification or change of the outstanding shares of Common Stock (other
than a subdivision or combination to which Section 14.05(c) applies), (ii)
any consolidation, merger or combination of the Company with another Person as
a result of which holders of Common Stock shall be entitled to receive stock,
other securities or other property or assets (including cash) with respect to
or in exchange for such Common Stock, or (iii) any sale or conveyance of all or
substantially all of the properties and assets of the Company to any other
Person as a result of which holders of Common Stock shall be entitled to
receive stock, other securities or other property or assets (including cash)
with respect to or in exchange for such Common Stock, then the Company or the
successor or purchasing Person, as the case may be, shall execute with the
Trustee a supplemental indenture (which shall comply with the Trust Indenture
Act as in force at the date of execution of such supplemental indenture)
providing that each Note shall be convertible into the kind and amount of
shares of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of a number of shares of Common
Stock issuable upon conversion of such Notes (assuming, for such purposes, a
sufficient number of authorized shares of Common Stock are available to convert
all such Notes) immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance assuming such holder of
Common Stock did not exercise his rights of election, if any, as to the kind or
amount of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance (provided that, if the kind or amount of
stock, other securities or other property or assets (including cash) receivable
upon such reclassification, change, consolidation, merger,


 


76

















 


combination, sale or conveyance is not the
same for each share of Common Stock in respect of which such rights of election
shall not have been exercised (“non-electing share”), then for the purposes of
this Section 14.06 the kind and amount of stock, other securities or other
property or assets (including cash) receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance for each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares).  Such supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article 14.


 


The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Notes, at its address appearing on the
Note Register provided for in Section 2.05 of this Indenture, within
twenty (20) days after execution thereof. 
Failure to deliver such notice shall not affect the legality or validity
of such supplemental indenture.


 


The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.


 


If this Section 14.06 applies to any event or occurrence,
Section 14.05 shall not apply.


 


Section 14.07.  Taxes On
Shares Issued.  The issue of
stock certificates on conversions of Notes shall be made without charge to the
converting Noteholder for any documentary, stamp or similar issue or transfer
tax in respect of the issue thereof. 
The Company shall not, however, be required to pay any such tax which
may be payable in respect of any transfer involved in the issue and delivery of
stock in any name other than that of the holder of any Note converted, and the
Company shall not be required to issue or deliver any such stock certificate
unless and until the Person or Persons requesting the issue thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.


 


Section 14.08.  Reservation
of Shares, Shares to Be Fully Paid; Compliance With Governmental
Requirements; Listing of Common Stock.  The Company shall provide, free from preemptive
rights, out of its authorized but unissued shares or shares held in treasury,
sufficient shares of Common Stock to provide for the conversion of the Notes
from time to time as such Notes are presented for conversion.  From time to time as additional shares of
Common Stock become available, the Company shall reserve additional shares of
Common Stock out of its authorized but unissued shares or shares held in
treasury until the Company has reserved a sufficient number of shares of Common
Stock to deliver from time to time as such Notes are presented for conversion.


 


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Before taking any action which would cause an adjustment increasing the
Conversion Rate to an amount that would cause the Conversion Price to be
reduced below the then par value, if any, of the shares of Common Stock
issuable upon conversion of the Notes, the Company will take all corporate
action which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue shares of such Common Stock at such
adjusted Conversion Rate.


 


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


 


The Company covenants that, subject to the registration statement
filing and effectiveness periods set out in the Registration Rights Agreement,
if any shares of Common Stock to be provided for the purpose of conversion of
Notes hereunder require registration with or approval of any governmental
authority under any federal or state law before such shares may be validly
issued upon conversion, the Company will in good faith and as expeditiously as
possible, to the extent then permitted by the rules and interpretations of the
Commission (or any successor thereto), endeavor to secure such registration or
approval, as the case may be.


 


The Company further covenants that, subject to the provisions of the
Registration Rights Agreement, if at any time the Common Stock shall be listed
on the Nasdaq National Market (or The Nasdaq SmallCap Market, if applicable) or
any other national securities exchange or automated quotation system, the
Company will, if permitted by the rules of such exchange or automated quotation
system, list and keep listed, so long as the Common Stock shall be so listed on
such exchange or automated quotation system, all Common Stock issuable upon
conversion of the Note; provided that if the rules of such
exchange or automated quotation system permit the Company to defer the listing
of such Common Stock until the first conversion of the Notes into Common Stock
in accordance with the provisions of this Indenture, the Company covenants to
list such Common Stock issuable upon conversion of the Notes in accordance with
the requirements of such exchange or automated quotation system at such time.


 


Section 14.09.  Responsibility
Of Trustee.  The Trustee and
any other conversion agent shall not at any time be under any duty or
responsibility to any holder of Notes to determine the Conversion Rate or
whether any facts exist which may require any adjustment of the Conversion
Rate, or with respect to the nature or extent or calculation of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same.  The Trustee and any other conversion agent
shall not be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at any time be issued or delivered upon the conversion of any Note; and the


 


78

















 


Trustee and any other conversion agent make
no representations with respect thereto. 
Neither the Trustee nor any conversion agent shall be responsible for
any failure of the Company to issue, transfer or deliver any shares of Common
Stock or stock certificates or other securities or property or cash upon the
surrender of any Note for the purpose of conversion or to comply with any of
the duties, responsibilities or covenants of the Company contained in this
Article 14.  Without limiting the
generality of the foregoing, neither the Trustee nor any conversion agent shall
be under any responsibility to determine the correctness of any provisions
contained in any supplemental indenture entered into pursuant to
Section 14.06 relating either to the kind or amount of shares of stock or
securities or property (including cash) receivable by Noteholders upon the
conversion of their Notes after any event referred to in such
Section 14.06 or to any adjustment to be made with respect thereto, but,
subject to the provisions of Section 7.01, may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officers’ Certificate (which the Company shall be obligated
to file with the Trustee prior to the execution of any such supplemental
indenture) with respect thereto.


 


Section 14.10.  Notice To Holders Prior To Certain Actions.  In case:


 


(a)                                  the Company shall
declare a dividend (or any other distribution) on its Common Stock that would
require an adjustment in the Conversion Rate pursuant to Section 14.05; or


 


(b)                                 the Company shall
authorize the granting to the holders of all or substantially all of its Common
Stock of rights or warrants to subscribe for or purchase any share of any class
or any other rights or warrants; or


 


(c)                                  of any reclassification
or reorganization of the Common Stock of the Company (other than a subdivision
or combination of its outstanding Common Stock, or a change in par value, or
from par value to no par value, or from no par value to par value), or of any
consolidation or merger to which the Company is a party and for which approval
of any stockholders of the Company is required, or of the sale or transfer of
all or substantially all of the assets of the Company; or


 


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


 


the Company shall cause to be filed with the Trustee and to be mailed
to each holder of Notes at his address appearing on the Note Register provided
for in Section 2.05 of this Indenture, as promptly as reasonably possible
but in any event at least ten (10) days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution or rights or warrants, or,
if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution or rights are to
be determined, or (y) the date on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or


 


79

















 


winding up is expected to become effective or occur, and the date as of
which it is expected that holders of Common Stock of record shall be entitled
to exchange their Common Stock for securities or other property deliverable
upon such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.  Failure to
give such notice, or any defect therein, shall not affect the legality or
validity of such dividend, distribution, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.


 


Section 14.11.  Stockholder Rights Plans.  If the rights provided for in the
Company’s Rights Agreement dated June 17, 2002, or in any future rights
plan adopted by the Company have separated from the shares of Common Stock in
accordance with the provisions of the applicable stockholder rights agreement
so that the holders of the Notes would not be entitled to receive any rights in
respect of Common Stock issuable upon conversion of the Notes, the Conversion
Rate will be adjusted as provided in Section 14.05(d).


 


ARTICLE 15


MISCELLANEOUS PROVISIONS


 


Section 15.01.  Provisions Binding On Company’s
Successors.  All the
covenants, stipulations, promises and agreements by the Company contained in
this Indenture shall bind its successors and assigns whether so expressed or
not.


 


Section 15.02.  Official
Acts By Successor Corporation.  Any
act or proceeding by any provision of this Indenture authorized or required to
be done or performed by any board, committee or officer of the Company shall
and may be done and performed with like force and effect by the like board,
committee or officer of any Person that shall at the time be the lawful sole
successor of the Company.


 


Section 15.03.  Addresses For Notices, Etc.  Any notice or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the holders of Notes on the Company shall be deemed to have
been sufficiently given or made, for all purposes, if given or served by being
deposited postage prepaid by registered or certified mail in a post office
letter box or sent by telecopier transmission addressed as follows: to Amylin
Pharmaceuticals, Inc., 9360 Towne Centre Drive, Suite 110, San Diego,
California 92121, Telecopier No. 858-552-2212, Attention: Chief Financial
Officer.  Any notice, direction, request
or demand hereunder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or served by being
deposited, postage prepaid, by registered or certified mail in a post office
letter box, sent by overnight delivery service or sent by telecopier
transmission addressed as follows: J.P. Morgan Trust Company, National
Association, 560 Mission Street, 13th Floor, San Francisco,
California, 94105, Attention: Institutional Trust Services, Telecopier No.
415-315-7585.


 


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


 


Any notice or communication mailed to a Noteholder shall be mailed to
him by first class mail, postage prepaid, at his address as it appears on the
Note Register and shall be sufficiently given to him if so mailed within the
time prescribed.


 


Failure to mail a notice or communication to a Noteholder or any defect
in it shall not affect its sufficiency with respect to other Noteholders.  If a notice or communication is mailed in
the manner provided above, it is duly given, whether or not the addressee
receives it.


 


Section 15.04.  Governing
Law.  This Indenture and each
Note shall be deemed to be a contract made under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of laws principles thereof.


 


Section 15.05.  Evidence Of
Compliance With Conditions Precedent, Certificates To Trustee.  Upon any application or demand by
the Company to the Trustee to take any action under any of the provisions of
this Indenture, the Company shall furnish to the Trustee an Officers’
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with, and, except
in connection with the initial issuance of the Notes, an Opinion of Counsel
stating that, in the opinion of such counsel, all such conditions precedent
have been complied with.


 


Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include: (1) a statement that the
person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statement or opinion contained in such certificate
or opinion is based; (3) a statement that, in the opinion of such person, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and (4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.


 


Section 15.06.  Legal Holidays.  In any case in which the date of maturity of interest
on or principal of the Notes or the redemption date of any Note will not be a
Business Day, then payment of such interest on or principal of the Notes need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the date of maturity or the
redemption date, and no interest shall accrue for the period from and after
such date.


 


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Section 15.07.  Trust
Indenture Act.  This
Indenture is hereby made subject to, and shall be governed by, the provisions
of the Trust Indenture Act required to be part of and to govern indentures
qualified under the Trust Indenture Act; provided that unless otherwise required
by law, notwithstanding the foregoing, this Indenture and the Notes issued
hereunder shall not be subject to the provisions of subsections (a)(1), (a)(2),
and (a)(3) of Section 314 of the Trust Indenture Act as now in effect or
as hereafter amended or modified; provided further that this
Section 15.07 shall not require this Indenture or the Trustee to be
qualified under the Trust Indenture Act prior to the time such qualification is
in fact required under the terms of the Trust Indenture Act, nor shall it
constitute any admission or acknowledgment by any party to the Indenture that
any such qualification is required prior to the time such qualification is in
fact required under the terms of the Trust Indenture Act.  If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required to be included in an
indenture qualified under the Trust Indenture Act, such required provision
shall control.


 


Section 15.08.  No Security
Interest Created.  Nothing in
this Indenture or in the Notes, expressed or implied, shall be construed to
constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect, in any jurisdiction in
which property of the Company or its subsidiaries is located.


 


Section 15.09.  Benefits Of
Indenture.  Nothing in this
Indenture or in the Notes, express or implied, shall give to any Person, other
than the parties hereto, any paying agent, any authenticating agent, any Note
Registrar and their successors hereunder and the holders of Notes any benefit
or any legal or equitable right, remedy or claim under this Indenture.


 


Section 15.10.  Table Of
Contents, Headings, Etc.  The
table of contents and the titles and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.


 


Section 15.11.  Authenticating Agent.  The Trustee may appoint an
authenticating agent that shall be authorized to act on its behalf, and subject
to its direction, in the authentication and delivery of Notes in connection
with the original issuance thereof and transfers and exchanges of Notes
hereunder, including under Sections 2.04, 2.05, 2.06, 2.07 and 3.01, as fully
to all intents and purposes as though the authenticating agent had been
expressly authorized by this Indenture and those Sections to authenticate and
deliver Notes.  For all purposes of this
Indenture, the authentication and delivery of Notes by the authenticating agent
shall be deemed to be authentication and delivery of such Notes “by the
Trustee” and a certificate of authentication executed on behalf of the Trustee
by an authenticating agent shall be deemed to satisfy any requirement hereunder
or in the Notes for the Trustee’s certificate of authentication.  Such authenticating agent


 


82

















 


shall at all times be a Person eligible to
serve as trustee hereunder pursuant to Section 7.09.


 


Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any authenticating agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any authenticating agent, shall be the
successor of the authenticating agent hereunder, if such successor corporation
is otherwise eligible under this Section 15.11, without the execution or
filing of any paper or any further act on the part of the parties hereto or the
authenticating agent or such successor corporation.


 


Any authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company.  The Trustee may at any time terminate the
agency of any authenticating agent by giving written notice of termination to
such authenticating agent and to the Company. 
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any authenticating agent shall cease to be eligible
under this Section, the Trustee shall either promptly appoint a successor
authenticating agent or itself assume the duties and obligations of the former
authenticating agent under this Indenture and, upon such appointment of a
successor authenticating agent, if made, shall give written notice of such
appointment of a successor authenticating agent to the Company and shall mail
notice of such appointment of a successor authenticating agent to all holders
of Notes as the names and addresses of such holders appear on the Note
Register.


 


The Company agrees to pay to the authenticating agent from time to time
such reasonable compensation for its services as shall be agreed upon in
writing between the Company and the authenticating agent.


 


The provisions of Sections 7.02, 7.03, 7.04 and 8.03 and this
Section 15.11 shall be applicable to any authenticating agent.


 


Section 15.12.  Execution In Counterparts.  This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.


 


Section 15.13.  Severability.  In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to
the extent permitted by law) the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.


 


The Trustee hereby accepts the trusts in this Indenture declared and
provided, upon the terms and conditions herein above set forth.


 


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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed.


 


	
   

  	
  AMYLIN PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Lloyd A. Rowland

  
	
   

  	
   

  	
  Title:

  	
  Vice President, General Counsel and

  Secretary

  
	
   

  	
   

  
	
   

  	
  J.P. MORGAN TRUST COMPANY, NATIONAL

  ASSOCIATION, AS TRUSTEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title: