Exhibit 4.1


EXECUTION COPY








AMYLIN PHARMACEUTICALS, INC.


ISSUER












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



TRUSTEE












INDENTURE



Dated as of June 8, 2007 












3.00% CONVERTIBLE SENIOR NOTES DUE 2014










 











AMYLIN
PHARMACEUTICALS, INC.


Certain
Sections of this Indenture relating to Sections 310 through 318
  of the Trust Indenture Act of 1939:


	
  Trust
  Indenture

  Act Section

  	
   

  	
  Indenture Section

  
	
   

  	
   

  	
   

  
	
  § 310(a)(1)

  	
   

  	
  6.09

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (a)(3)

  	
   

  	
  Not Applicable

  
	
  (a)(4)

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
  6.08

  
	
   

  	
   

  	
  6.10

  
	
  § 311(a)

  	
   

  	
  6.13

  
	
  (b)

  	
   

  	
  6.13

  
	
  § 312(a)

  	
   

  	
  9.01

  
	
   

  	
   

  	
  9.02(a)

  
	
  (b)

  	
   

  	
  9.02(b)

  
	
  (c)

  	
   

  	
  9.02(c)

  
	
  § 313(a)

  	
   

  	
  9.03(a)

  
	
  (a)(4)

  	
   

  	
  1.01

  
	
   

  	
   

  	
  10.04

  
	
  (b)

  	
   

  	
  9.03(a)

  
	
  (c)

  	
   

  	
  9.03(a)

  
	
  (d)

  	
   

  	
  9.03(a)

  
	
  § 314(a)

  	
   

  	
  9.04

  
	
  (b)

  	
   

  	
  Not Applicable

  
	
  (c)(1)

  	
   

  	
  1.05

  
	
  (c)(2)

  	
   

  	
  1.05

  
	
  (c)(3)

  	
   

  	
  Not Applicable

  
	
  (d)

  	
   

  	
  Not Applicable

  
	
  (e)

  	
   

  	
  1.05

  
	
  § 315(a)

  	
   

  	
  6.01

  
	
  (b)

  	
   

  	
  6.02

  
	
  (c)

  	
   

  	
  6.01

  
	
  (d)

  	
   

  	
  6.01

  
	
  (e)

  	
   

  	
  5.15

  
	
  § 316(a)

  	
   

  	
  1.01

  
	
  (a)(1)(A)

  	
   

  	
  5.02

  
	
   

  	
   

  	
  5.06

  
	
  (a)(1)(B)

  	
   

  	
  5.04

  
	
  (a)(2)

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
  5.03

  
	
  (c)

  	
   

  	
  1.02

  
	
  § 317(a)(1)

  	
   

  	
  5.07

  
	
  (a)(2)

  	
   

  	
  5.08

  
	
  (b)

  	
   

  	
  10.05

  
	
  § 318(a)

  	
   

  	
  1.08

  



 






Note:  This reconciliation and
tie shall not, for any purpose, be deemed to be a part of the Indenture.
















TABLE OF CONTENTS


	
  

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 1

  	
   

  	
   

  
	
   

  	
   

  	
  DEFINITIONS AND
  OTHER PROVISIONS OF GENERAL APPLICATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.01

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  SECTION 1.02

  	
   

  	
  Acts of Holders of Notes

  	
   

  	
  15

  
	
  SECTION 1.03

  	
   

  	
  Notices, Etc. To The Trustee And Company

  	
   

  	
  16

  
	
  SECTION 1.04

  	
   

  	
  Table Of Contents, Headings, Etc

  	
   

  	
  17

  
	
  SECTION 1.05

  	
   

  	
  Evidence Of Compliance With Conditions Precedent,
  Certificates To Trustee

  	
   

  	
  17

  
	
  SECTION 1.06

  	
   

  	
  Form of Documents Delivered to Trustee

  	
   

  	
  17

  
	
  SECTION 1.07

  	
   

  	
  Notice to Holders; Waiver

  	
   

  	
  18

  
	
  SECTION 1.08

  	
   

  	
  Trust Indenture Act

  	
   

  	
  18

  
	
  SECTION 1.09

  	
   

  	
  Successors and Assigns

  	
   

  	
  19

  
	
  SECTION 1.10

  	
   

  	
  Severability

  	
   

  	
  19

  
	
  SECTION 1.11

  	
   

  	
  Benefits of Indenture

  	
   

  	
  19

  
	
  SECTION 1.12

  	
   

  	
  Governing Law

  	
   

  	
  19

  
	
  SECTION 1.13

  	
   

  	
  Legal Holidays

  	
   

  	
  19

  
	
  SECTION 1.14

  	
   

  	
  Force Majeure

  	
   

  	
  20

  
	
  SECTION 1.15

  	
   

  	
  Waiver of Jury Trial

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 2

  	
   

  	
   

  
	
   

  	
   

  	
  NOTE FORMS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.01

  	
   

  	
  Form Generally

  	
   

  	
  20

  
	
  SECTION 2.02

  	
   

  	
  Form of Note

  	
   

  	
  20

  
	
  SECTION 2.03

  	
   

  	
  Form of Notice of Conversion

  	
   

  	
  32

  
	
  SECTION 2.04

  	
   

  	
  Form of Assignment

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 3

  	
   

  	
   

  
	
   

  	
   

  	
  THE NOTES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.01

  	
   

  	
  Title And Terms

  	
   

  	
  34

  
	
  SECTION 3.02

  	
   

  	
  Denominations

  	
   

  	
  35

  
	
  SECTION 3.03

  	
   

  	
  Execution, Authentication, Delivery and Dating

  	
   

  	
  35

  
	
  SECTION 3.04

  	
   

  	
  Global Notes; Non-Global Notes; Book-entry
  Provisions

  	
   

  	
  35

  
	
  SECTION 3.05

  	
   

  	
  Persons Deemed Owners

  	
   

  	
  37

  
	
  SECTION 3.06

  	
   

  	
  Mutilated, Destroyed, Lost and Stolen Notes

  	
   

  	
  37

  
	
  SECTION 3.07

  	
   

  	
  Payment of Interest; Interest Rights Preserved

  	
   

  	
  38

  
	
  SECTION 3.08

  	
   

  	
  Cancellation

  	
   

  	
  40

  
	
  SECTION 3.09

  	
   

  	
  Computation of Interest

  	
   

  	
  40

  
	
  SECTION 3.10

  	
   

  	
  Calculations in Respect of Notes

  	
   

  	
  40

  



 



 i
 









 


	
  

  	
   

  	
  ARTICLE 4

  	
   

  	
   

  
	
   

  	
   

  	
  DISCHARGE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.01

  	
   

  	
  Discharge of Liability on Notes

  	
   

  	
  41

  
	
  SECTION 4.02

  	
   

  	
  Reinstatement

  	
   

  	
  42

  
	
  SECTION 4.03

  	
   

  	
  Officers’ Certificate; Opinion of Counsel

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 5

  	
   

  	
   

  
	
   

  	
   

  	
  REMEDIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.01

  	
   

  	
  Events of Default

  	
   

  	
  42

  
	
  SECTION 5.02

  	
   

  	
  Acceleration of Maturity; Rescission and Annulment

  	
   

  	
  44

  
	
  SECTION 5.03

  	
   

  	
  Unconditional Right of Holders to Receive Principal
  and Interest and to Convert

  	
   

  	
  45

  
	
  SECTION 5.04

  	
   

  	
  Waiver of Past Defaults

  	
   

  	
  46

  
	
  SECTION 5.05

  	
   

  	
  Waiver of Stay, Usury or Extension Laws

  	
   

  	
  46

  
	
  SECTION 5.06

  	
   

  	
  Control by Holders

  	
   

  	
  46

  
	
  SECTION 5.07

  	
   

  	
  Collection of Indebtedness and Suits for Enforcement
  by Trustee

  	
   

  	
  47

  
	
  SECTION 5.08

  	
   

  	
  Trustee May File Proofs of Claim

  	
   

  	
  47

  
	
  SECTION 5.09

  	
   

  	
  Trustee May Enforce Claims Without Possession of
  Notes

  	
   

  	
  48

  
	
  SECTION 5.10

  	
   

  	
  Application of Money Collected

  	
   

  	
  48

  
	
  SECTION 5.11

  	
   

  	
  Limitation on Suits

  	
   

  	
  48

  
	
  SECTION 5.12

  	
   

  	
  Restoration of Rights and Remedies

  	
   

  	
  49

  
	
  SECTION 5.13

  	
   

  	
  Rights and Remedies Cumulative

  	
   

  	
  49

  
	
  SECTION 5.14

  	
   

  	
  Delay or Omission Not Waiver

  	
   

  	
  50

  
	
  SECTION 5.15

  	
   

  	
  Undertaking for Costs

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 6

  	
   

  	
   

  
	
   

  	
   

  	
  THE TRUSTEE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.01

  	
   

  	
  Certain Duties and Responsibilities

  	
   

  	
  50

  
	
  SECTION 6.02

  	
   

  	
  Notice of Defaults

  	
   

  	
  51

  
	
  SECTION 6.03

  	
   

  	
  Certain Rights of Trustee

  	
   

  	
  51

  
	
  SECTION 6.04

  	
   

  	
  Not Responsible for Recitals or Issuance of Notes

  	
   

  	
  53

  
	
  SECTION 6.05

  	
   

  	
  May Hold Notes

  	
   

  	
  53

  
	
  SECTION 6.06

  	
   

  	
  Money Held In Trust

  	
   

  	
  54

  
	
  SECTION 6.07

  	
   

  	
  Compensation and Reimbursement

  	
   

  	
  54

  
	
  SECTION 6.08

  	
   

  	
  Conflicting Interests

  	
   

  	
  55

  
	
  SECTION 6.09

  	
   

  	
  Corporate Trustee Required; Eligibility

  	
   

  	
  55

  
	
  SECTION 6.10

  	
   

  	
  Resignation and Removal; Appointment Of Successor

  	
   

  	
  55

  
	
  SECTION 6.11

  	
   

  	
  Acceptance of Appointment by Successor

  	
   

  	
  56

  
	
  SECTION 6.12

  	
   

  	
  Merger, Conversion, Consolidation or Succession to
  Business

  	
   

  	
  57

  
	
  SECTION 6.13

  	
   

  	
  Preferential Collection of Claims Against Company

  	
   

  	
  57

  
	
  SECTION 6.14

  	
   

  	
  Appointment of Authenticating Agent

  	
   

  	
  57

  



 



 ii
 









 


	
  

  	
   

  	
  ARTICLE 7

  	
   

  	
   

  
	
   

  	
   

  	
  CONSOLIDATION,
  MERGER, CONVEYANCE, TRANSFER OR LEASE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.01

  	
   

  	
  Company May Consolidate, Etc., Only on Certain Terms

  	
   

  	
  60

  
	
  SECTION 7.02

  	
   

  	
  Successor Substituted

  	
   

  	
  60

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 8

  	
   

  	
   

  
	
   

  	
   

  	
  SUPPLEMENTAL
  INDENTURES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.01

  	
   

  	
  Supplemental Indentures Without Consent of Holders
  of Notes

  	
   

  	
  61

  
	
  SECTION 8.02

  	
   

  	
  Supplemental Indentures With Consent of Holders of
  Notes

  	
   

  	
  62

  
	
  SECTION 8.03

  	
   

  	
  Notice of Supplemental Indentures

  	
   

  	
  63

  
	
  SECTION 8.04

  	
   

  	
  Effect of Supplemental Indentures

  	
   

  	
  63

  
	
  SECTION 8.05

  	
   

  	
  Conformity with Trust Indenture Act

  	
   

  	
  63

  
	
  SECTION 8.06

  	
   

  	
  Trustee to Sign Amendments, etc

  	
   

  	
  63

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 9

  	
   

  	
   

  
	
   

  	
   

  	
  HOLDERS LISTS
  AND BY TRUSTEE AND COMPANY

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.01

  	
   

  	
  Company to Furnish Trustee Names and Addresses of
  Holders

  	
   

  	
  64

  
	
  SECTION 9.02

  	
   

  	
  Preservation of Information

  	
   

  	
  64

  
	
  SECTION 9.03

  	
   

  	
  Communication to Holders

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 10

  	
   

  	
   

  
	
   

  	
   

  	
  COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.01

  	
   

  	
  Payment of Principal and Interest

  	
   

  	
  65

  
	
  SECTION 10.02

  	
   

  	
  Maintenance of Offices or Agencies

  	
   

  	
  65

  
	
  SECTION 10.03

  	
   

  	
  Existence

  	
   

  	
  66

  
	
  SECTION 10.04

  	
   

  	
  Statement by Officers as to Default

  	
   

  	
  66

  
	
  SECTION 10.05

  	
   

  	
  Money for Note Payments to Be Held in Trust

  	
   

  	
  66

  
	
  SECTION 10.06

  	
   

  	
  Reports by Company

  	
   

  	
  67

  
	
  SECTION 10.07

  	
   

  	
  Delivery of Certain Information

  	
   

  	
  68

  
	
  SECTION 10.08

  	
   

  	
  Registration Rights

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 11

  	
   

  	
   

  
	
   

  	
   

  	
  REPURCHASE OF
  NOTES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.01

  	
   

  	
  Right to Require Repurchase Upon a Fundamental
  Change

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 12

  	
   

  	
   

  
	
   

  	
   

  	
  CONVERSION OF
  NOTES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.01

  	
   

  	
  Conversion Privilege and Conversion Rate

  	
   

  	
  73

  
	
  SECTION 12.02

  	
   

  	
  Exercise of Conversion Privilege

  	
   

  	
  78

  
	
  SECTION 12.03

  	
   

  	
  Fractions of Shares

  	
   

  	
  82

  
	
  SECTION 12.04

  	
   

  	
  Adjustment of Conversion Rate

  	
   

  	
  82

  
	
  SECTION 12.05

  	
   

  	
  Notice of Adjustments of Conversion Rate

  	
   

  	
  92

  



 



 iii
 









 


	
  SECTION 12.06

  	
   

  	
  Company to Reserve Common Stock

  	
   

  	
  92

  
	
  SECTION 12.07

  	
   

  	
  Taxes on Conversions

  	
   

  	
  93

  
	
  SECTION 12.08

  	
   

  	
  Certain Covenants

  	
   

  	
  93

  
	
  SECTION 12.09

  	
   

  	
  Cancellation of Converted Notes

  	
   

  	
  93

  
	
  SECTION 12.10

  	
   

  	
  Provision in Case of Effect of Reclassification,
  Consolidation, Merger or Sale

  	
   

  	
  93

  
	
  SECTION 12.11

  	
   

  	
  Treatment of Rights

  	
   

  	
  95

  
	
  SECTION 12.12

  	
   

  	
  Exchange in Lieu of Conversion

  	
   

  	
  96

  
	
  SECTION 12.13

  	
   

  	
  Responsibility of Trustee for Conversion Provisions

  	
   

  	
  97

  



 



 iv















INDENTURE, dated as of June 8, 2007 (the “Indenture”), between AMYLIN PHARMACEUTICALS, INC., a
corporation duly organized and existing under the laws of the State of
Delaware, having its principal office at 9360 Towne Centre Drive, San Diego,
California 92121 (herein called the “Company”), and
THE BANK OF NEW YORK TRUST COMPANY, N.A., a national banking association, as
Trustee hereunder (herein called the “Trustee”).


RECITALS OF THE COMPANY


The Company has duly authorized the creation of an
issue of its 3.00% Convertible Senior Notes due 2014 (herein called the “Notes”) of substantially the tenor and amount hereinafter
set forth, and to provide therefor the Company has duly authorized the
execution and delivery of this Indenture.


All things necessary to make the Notes, when the Notes
are executed by the Company and authenticated and delivered hereunder, the
valid and legally binding obligations of the Company, and to make this
Indenture a valid agreement of the Company, in accordance with their and its
terms, have been done. Further, all things necessary to duly authorize the
issuance of the Common Stock of the Company issuable upon the conversion of the
Notes, and to duly reserve for issuance the number of shares of Common Stock
issuable upon such conversion, have been done.


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


For and in consideration of the premises and the
purchase of the Notes by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Notes, as
follows:


ARTICLE
1

Definitions and Other Provisions of
General Application


SECTION 1.01     Definitions.


For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:


(a)           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;


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


(c)           all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting



 1
 









principles in the United States, and, except as otherwise herein
expressly provided, the term “generally accepted accounting principles” with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date of such
computation; and


(d)           all
other terms used in this Indenture, which 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”
and “hereunder” and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision.


“Act,” when used
with respect to any Holder of a Note, has the meaning specified in Section
1.02.


“Additional Interest”
has the meaning specified in Section 2.02.


“Additional Notes”
means an unlimited amount of Notes (other than the Initial Notes) issued under
this Indenture in accordance with Section 3.04, as part of the same series as
the Initial Notes.


“Additional Shares”
has the meaning specified in Section 12.01.


“Adjustment Determination
Date” has the meaning specified in Section 12.04.


“Adjustment Event”
has the meaning specified in Section 12.04.


“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 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.


“Agent Member”
means any member of, or participant in, the Depositary.


“Aggregate Share Cap” means
22.9252 shares of Common Stock per $1,000 principal amount of Notes, subject to
adjustment upon the occurrence of any of the events described in Section 12.04


“American Depositary Receipts”
means negotiable United States securities that represent a non-United States
company’s publicly traded equity.



 2
 









“Applicable Procedures”
means, with respect to any transfer or transaction involving a Global Note or
beneficial interest therein, the rules and procedures of DTC or any successor
Depository, in each case to the extent applicable to such transaction and as in
effect from time to time.


“Authenticating Agent”
means any Person authorized by the Trustee pursuant to Section 6.14 to act on
behalf of the Trustee to authenticate Notes.


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


“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification, and
delivered to the Trustee.


“Business Day”
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in the applicable Place of Payment (i) are
not required to be open or (ii) are authorized or obligated by law or
executive order to close.


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


“Code” means the
Internal Revenue Code of 1986 as in effect on the date hereof.


“Commission”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or, if at any time after the
execution of this instrument 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 the Common Stock, par value $0.001 per share, of the Company authorized
at the date of this instrument as originally executed or as such stock may be
constituted from time to time.  Subject
to the provisions of Section 12.10, shares issuable upon conversion of Notes
shall include only shares of Common Stock or shares of any class or classes of
common stock resulting from any reclassification or reclassifications thereof; provided, however, that
if at any time there shall be more than one such resulting class, the shares so
issuable on conversion of Notes shall include shares of all such classes, and
the shares of each such class then so issuable 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.



 3
 









“common stock”
includes any stock of any class of capital stock 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 issuer thereof and
which is not subject to redemption by the issuer thereof.


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


“Company Request”
or “Company Order” means a written request
or order signed in the name of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President or a Vice President.


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


“Conversion Agent”
means any Person authorized by the Company to convert Notes in accordance with
Article 12. The Company has initially appointed the Trustee as its Conversion
Agent pursuant to Section 10.02.


“Conversion Date”
has the meaning specified in Section 12.02.


“Conversion Obligation”
means the obligation of the Company to deliver pursuant hereto, the
consideration due under Article 12 upon a conversion of the Notes in accordance
herewith.


“Conversion Price”
means at any time the amount equal to $1,000 divided by the then current
Conversion Rate.


“Conversion Rate”
has the meaning specified in Section 12.01.


“Corporate Trust Office”
means the office of the Trustee at which at any particular time the trust
created by this Indenture shall be principally administered, (which at the date
of this Indenture is located at 700 South Flower Street, Suite 500, Los
Angeles, CA 90017, Attention: Corporate Unit, or such other address as the
Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as such successor Trustee may designate from time to time by
notice to the Holders and the Company).


“corporation”
means a corporation, company, association, joint-stock company or business
trust.



 4
 









“Daily Cash Amount”
has the meaning specified in the definition of Daily Settlement Amount.


“Daily Conversion Value”
means, for each of the 20 consecutive VWAP Trading Days during the Observation
Period, one-twentieth (1/20) of the product of (a) the applicable Conversion
Rate and (b) the Daily VWAP of the Common Stock (or the Reference Property
pursuant to Section 12.10) on such VWAP Trading Day, as determined by the
Company.  Any such determination by the
Company shall be conclusive absent manifest error.


“Daily Settlement Amount”
means, for each of the 20 VWAP Trading Days during the Observation Period,


(i)            cash equal to the lesser of (x)
$50.00 and (y) the Daily Conversion Value for such VWAP Trading Day (the “Daily Cash Amount”); and


(ii)           if such Daily Conversion Value
exceeds $50.00, a number of shares of Common Stock equal to (A) the difference
between such Daily Conversion Value and $50.00, divided by (B) the Daily VWAP
of the Common Stock for such VWAP Trading Day, subject to adjustment pursuant
to Section 12.04(m);


provided that in no event shall the aggregate number
of deliverable shares of Common Stock per $1,000 principal amount of Notes
exceed the Aggregate Share Cap.


“Daily VWAP”
means for each of the 20 consecutive VWAP Trading Days during the Observation
Period, the per share volume-weighted average price as displayed under the heading
“Bloomberg VWAP” on Bloomberg page AMLN.Q <equity> AQR (or any equivalent
successor page) in respect of the period from the scheduled open of trading on
the principal trading market for the Common Stock to the scheduled close of
trading on such market on such VWAP Trading Day (without regard to after-hours
trading), or if such volume-weighted average price is unavailable, the market
value of one share of Common Stock on such VWAP Trading Day using a
volume-weighted method as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company.


“Default” means
any event which is, or after notice or lapse of time or both would become, an
Event of Default pursuant to Section 5.01.


“Defaulted Interest”
has the meaning specified in Section 3.07.


“Depositary”
means, with respect to Notes issuable in whole or in part in the form of one or
more Global Notes, a clearing agency registered under the



 5
 









Exchange Act that is designated to act as Depositary
for such Notes as contemplated by Section 3.04.


“Distributed Property”
has the meaning specified in Section 12.04.


“Dollar,” “U.S. $” or “$” means a
dollar or other equivalent unit in such coin or currency of the United States
as at the time shall be legal tender for the payment of public and private
debts.


“DTC” means The
Depository Trust Company, a New York corporation, or any successor.


“Effective Date”
has the meaning specified in Section 12.01.


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


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


“Exchange Act”
means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time.


“Exempt Parent Merger”
means a merger of the Company with or into a wholly-owned subsidiary of a
corporation that, immediately following the transaction or series of
transactions, has a class of common stock or American Depositary Receipts in
respect of common stock traded on a U.S. national securities exchange or quoted
on another established automated over-the-counter trading market in the United
States if immediately following the transaction or series of transactions (a)
the consideration received by holders of the Common Stock immediately prior to
the transaction entitles such holders to exercise, directly or indirectly, 50%
or more of the total voting power of all shares of Capital Stock entitled to
vote generally in elections of directors of such parent corporation and (b)
such parent corporation fully and unconditionally guarantees all obligations of
such continuing and surviving corporation under the Notes and the Indenture on
a senior basis on terms and pursuant to a supplemental indenture reasonably
satisfactory to the Trustee.


“Extension Fee”
has the meaning specified in Section 5.02.


“Extension Right”
has the meaning specified in Section 5.02.


“Fundamental Change”
will be deemed to have occurred if any of the following occurs:



 6
 









(1)           any Person acquires
beneficial ownership, directly or indirectly, through a purchase, merger or
other acquisition transaction or series of transactions, of shares of the
Company’s Capital Stock entitling the Person to exercise 50% or more of the
total voting power of all shares of the Company’s Capital Stock entitled to
vote generally in elections of directors, other than an acquisition by the
Company, any of the Company’s Subsidiaries or any of the Company’s employee
benefit plans; provided that this clause (1) shall not apply to an Exempt
Parent Merger (for purposes of this clause (1), whether a Person is a “beneficial
owner” shall be determined in accordance with Rule 13d-3 under the Exchange
Act, and “Person” shall include any syndicate or group that would be deemed to
be a “person” under Section 13(d)(3) of the Exchange Act); or


(2)           the Company (i)
merges or consolidates with or into any other Person (other than a Subsidiary),
another Person merges with or into the Company, or the Company conveys, sells,
transfers or leases all or substantially all of the Company’s assets to another
Person (other than to one or more of the Company’s wholly-owned Subsidiaries)
or (ii) engages in any recapitalization, reclassification or other transaction
in which all or substantially all of the Common Stock is exchanged for or
converted into cash, securities or other property, in each case other than an
Exempt Parent Merger or a merger or consolidation:


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


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


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


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



 7
 









(4)           the Company is
liquidated or dissolved or Holders of Common Stock approve any plan or proposal
for the Company’s liquidation or dissolution; or


(5)           if shares of the
Common Stock, or shares of any other common stock or American Depositary
Receipts in respect of shares of common stock into which the Notes are
convertible pursuant to the terms of the Indenture, are not listed for trading
on any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ
Global Market or the NASDAQ Global Select Market (or any of their respective
successors).


“Fundamental Change
Expiration Time” has the meaning specified in Section 11.01.


“Fundamental Change
Repurchase Date” has the meaning specified in Section 11.01.


“Fundamental Change Repurchase
Notice” has the meaning specified in Section 11.01.


“Fundamental Change
Repurchase Price” has the meaning specified in Section 11.01.


“Fundamental Change
Repurchase Right Notice” has the meaning specified in Section 11.01.


“Global Note”
means a Note that is registered in the Register in the name of a Depositary or
a nominee thereof.


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


“Indebtedness”
means any and all obligations of a Person for money borrowed which, in accordance
with U.S. generally accepted accounting principles, would be reflected on the
balance sheet of such Person as a liability on the date as of which
Indebtedness is to be determined.


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


“Initial Notes”
means the first $575,000,000 aggregate principal amount of the Notes issued
under this Indenture on the date hereof. 
The Initial Notes and the Additional Notes shall be treated as a single
class for all purposes under this Indenture, and unless the context otherwise
requires, all references to the Notes shall include the Initial Notes and any
Additional Notes.



 8
 









“Initial Purchasers”
means Goldman, Sachs & Co., Morgan Stanley & Co. Incorporated, Banc of
America Securities LLC, Bears, Stearns & Co. Inc. and J.P. Morgan
Securities Inc.


“Interest Payment Date”
means June 15 and December 15 of each year beginning December 15, 2007.


“Issue Date”
means June 8, 2007.


“Last Reported Sale Price”
means, with respect to the Common Stock or any other security for which a Last
Reported Sale Price must be determined, on any date, the closing sale price per
share of the Common Stock or unit of such other security (or, if no closing
sale price is reported, the average of the last bid and last ask prices or, if
more than one in either case, the average of the average last bid and the
average last ask prices) on such date as reported in composite transactions for
the principal United States national or regional securities exchange on which
it is then traded, if any. If the Common Stock or such other security is not
listed for trading on a United States national or regional securities exchange
on the relevant date, the Last Reported Sale Price shall be the average of the
last quoted bid and ask prices per share of Common Stock or such other security
in the over-the-counter market on the relevant date, as reported by the
National Quotation Bureau or similar organization. In absence of such
quotation, the Last Reported Sale Price shall be the average of the mid-point
of the last bid and ask prices for the Common Stock or such other security on
the relevant date from each of at least three nationally recognized independent
investment banking firms, which may include any or all of the Initial
Purchasers, selected from time to time by the Company for that purpose.  Any such determination shall be made by the
Company and shall be conclusive absent manifest error.


“Make-Whole Fundamental Change”
means any transaction or event that constitutes a Fundamental Change pursuant
to clauses (1), (2) or (4) under the definition of Fundamental Change.


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


“Maturity,” when
used with respect to any Notes, means the date on which the principal of such
Notes becomes due and payable as therein or herein provided, whether on the
Maturity Date or by declaration of acceleration, exercise of the repurchase
right set forth in Article 11 or otherwise.


“Maturity Date,”
means, with respect to the Notes, June 15, 2014.



 9
 









“Measurement Period”
has the meaning specified in Section 12.01.


“Merger Event” has
the meaning specified in Section 12.10.


“Net Share Settlement”
has the meaning ascribed to it in Section 12.02.


“Notes” has the
meaning ascribed to it in the first paragraph under the caption “Recitals of
the Company.”  Unless the context
otherwise requires, all references to the Notes shall include the Initial Notes
and any Additional Notes.


“Notice of Conversion”
has the meaning specified in Section 12.02.


“Observation Period”
means, with respect to any Notes:


(i)            with respect to any
Conversion Date that occurs on or after the 25th Scheduled Trading Day prior to the Maturity
Date, the 20 consecutive VWAP Trading Day period beginning on and including the
22nd Scheduled Trading Day prior to the Maturity Date (or if such day is not a
VWAP Trading Day, the next succeeding VWAP Trading Day); and


(ii)           in all other
instances, the 20 consecutive VWAP Trading Day period beginning on and
including the third VWAP Trading Day after the related Conversion Date in
respect of such Notes.


“Offering Circular “
means the final offering circular dated June  4,
2007 used in connection with the offering of the Notes.


“Officers’ Certificate”
means a certificate signed by (i) the Chairman or Vice Chairman of the Board of
Directors or the Chief Executive Officer, the President or any Vice President
and by (ii) the Chief Financial Officer, any other Vice President or the
Controller, Treasurer, Assistant Treasurer, Corporate Secretary or Assistant
Corporate Secretary and delivered to the Trustee.


“Opinion of Counsel”
means a written opinion of counsel, who may be an employee of or counsel to the
Company, or other counsel reasonably acceptable to the Trustee.


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


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


(ii)           Notes for the
payment of which money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as its
own Paying Agent)



 10
 









for the
Holders of such Notes in accordance with the terms of such Indenture;


(iii)          Notes which have been
paid pursuant to Section 3.06 or in exchange for or in lieu of which other
Notes have been authenticated and delivered pursuant to this Indenture; and


(iv)          Notes converted into
Common Stock pursuant to Article 12; and


(v)           Notes repurchased
pursuant to Article 11;


provided, however,
that, in determining whether the Holders of the requisite principal amount of
Outstanding Notes are present at a meeting of Holders of Notes for quorum
purposes or have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Notes owned by the Company or any other obligor
upon the Notes or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such determination
as to the presence of a quorum or upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which a Responsible Officer of
the Trustee has been notified in writing to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee is not the Company or any other obligor
upon the Notes or any Affiliate of the Company or such other obligor, and the
Trustee shall be protected in relying upon an Officers’ Certificate to such
effect.


“Paying Agent”
means any Person authorized by the Company to pay the principal of or interest
on any Notes on behalf of the Company and, except as otherwise specifically set
forth herein, such term shall include the Company if it shall act as its own
Paying Agent. The Company has initially appointed the Trustee as its Paying
Agent pursuant to Section 10.02.


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


“Place of Conversion”
has the meaning specified in Section 3.01.


“Place of Payment”
has the meaning specified in Section 3.01.


“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



 11
 









delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Note.


“Press Release”
means any press release issued by the Company and disseminated to a reputable
national newswire service.


“Principal Portion”
in respect of a Note to be converted, means cash in an amount equal to the sum
of Daily Cash Amounts for each of the 20 VWAP Trading Days during an
Observation Period.


“Purchase Agreement”
means the Purchase Agreement, dated as of June 4, 2007 between the Company
and the Initial Purchasers, as such agreement may be amended from time to time.


“Record Date”
means any Regular Record Date or Special Record Date.


“Record Date Period”
means the period from the close of business of any Regular Record Date next
preceding any Interest Payment Date to 9:00 a.m., New York City time, on such
Interest Payment Date.


“Reference Property”
has the meaning specified in Section 12.10.


“Registrable Securities”
has the meaning ascribed to it in the Registration Rights Agreement.


“Registrar”
means the Trustee, for the purpose of registering Notes and transfers of Notes.


“Registration Rights
Agreement” means the Registration Rights Agreement, dated as of June
8, 2007, between the Company and the Initial Purchasers, as such agreement may
be amended from time to time in accordance with its terms.


“Regular Record Date”
for interest payable in respect of any Note on any Interest Payment Date means
the May 31 or November 30 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.


“Responsible Officer,”
when used with respect to the Trustee, means any officer within the corporate
trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person’s
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.



 12















“Restricted Security”
means any Note or share of Common Stock issuable upon conversion thereof except
any such Note or share of Common Stock that (i) has been effectively registered
under the Securities Act and sold in a manner contemplated by the Shelf Registration
Statement, (ii) has been transferred in compliance with Rule 144 under the
Securities Act (or any successor provision thereto) or is transferable pursuant
to paragraph (k) of such Rule 144 (or any successor provision thereto) or (iii)
has otherwise been transferred and a new Note or share of Common Stock not
subject to transfer restrictions under the Securities Act has been delivered by
or on behalf of the Company in accordance with this Indenture.


“Rule 144A Information”
shall have the meaning specified in Section 10.07.


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


“Securities Act”
means the Securities Act of 1933 and any statute successor thereto, in each
case as amended from time to time.


“Shelf Registration
Statement” has the meaning specified in Section 2.02.


“Significant Subsidiary”
means, with respect to any Person, a Subsidiary of such Person that would
constitute a “significant subsidiary” as such term is defined under Rule 1-02
of Regulation S-X under the Securities Act and the Exchange Act.


“Special Record Date”
for the payment of any Defaulted Interest means a date fixed by the Trustee
pursuant to Section 3.07.


“Stock Price”
means the price paid per share of Common Stock in connection with a Make-Whole
Fundamental Change pursuant to which Additional Shares shall be added to the
Conversion Rate as set forth in Section 12.01(e), which shall be equal to (i)
if holders of Common Stock receive only cash in such Make-Whole Fundamental
Change, the cash amount paid per share of Common Stock and (ii) in all other
cases, the average of the Last Reported Sale Prices of the Common Stock over
the ten consecutive Trading Day period ending on the Trading Day preceding the
Effective Date of the Make-Whole Fundamental Change.


“Spin-Off” has
the meaning specified in Section 12.04.



 13
 









“Subsidiary”
means a corporation more than 50% of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries. For the
purposes of this definition, “voting stock”
means stock or other similar interests in the corporation which ordinarily has
or have voting power for the election of directors, or persons performing
similar functions, whether at all times or only so long as no senior class of
stock or other interests has or have such voting power by reason of any
contingency.


“Successor Note”
of any particular Note means every Note issued after, and 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 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Note shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Note.


“Trading Day”
means any Scheduled Trading Day provided that there is no Market Disruption
Event on such day.


“Trading Price”
with respect to any Notes, on any date of determination, means the average of
the secondary market bid quotations provided to the Trustee for $2.0 million
principal amount of such Notes at approximately 3:30 p.m., New York City time,
on such determination date from three independent nationally recognized
securities dealers, which may include any or all of the Initial Purchasers,
selected by the Company; provided that
if three such bids cannot reasonably be provided to the Trustee, but two such
bids are provided, then the average of the two bids shall be used, and if only
one such bid can reasonably be provided to the Trustee, that one bid shall be
used.  If at least one bid for $2.0
million principal amount of the Notes cannot reasonably be provided to the
Trustee by a nationally recognized securities dealer, then the Trading Price
per $1,000 principal amount of Notes shall be deemed to be less than 97% of the
product of the Last Reported Sale Price of the Common Stock and the Conversion
Rate in effect on such date of determination. 
Any such determination will be conclusive absent manifest error.


“Trading Price Condition”
has the meaning specified in Section 12.01.


“Trigger Event”
has the meaning specified in Section 12.04.


“Trust Indenture Act”
means the Trust Indenture Act of 1939 as in force at the date as of which this
instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
“Trust Indenture Act” means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.


“Trustee” means
the Person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to



 14
 









the applicable
provisions of this Indenture, and thereafter “Trustee” shall mean such
successor Trustee.


“VWAP Market Disruption
Event” means (i) a failure by the principal United States national
or regional securities exchange or market on which the Common Stock is listed
or admitted to trading to open for trading during its regular trading session
or (ii) the occurrence or existence prior to 1:00 p.m. New York City time on
any Scheduled Trading Day for the Common Stock for an aggregate one half-hour
period of any suspension or limitation imposed on trading (by reason of
movements in price exceeding limits permitted by the stock exchange or otherwise)
in the Common Stock or in any options contracts or futures contracts relating
to the Common Stock.


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


SECTION 1.02     Acts of Holders of Notes.


(a)           Subject to Article 5
of this Indenture, upon actual receipt by the Trustee from any Holder of (i)
any notice of Default or breach referred to in Section 5.01(e), if such Default
or breach has occurred and is continuing and the Trustee shall not have given
such a notice to the Company, (ii) any declaration of acceleration referred to
in Section 5.02, if an Event of Default has occurred and is continuing and the
Trustee shall not have given such a declaration to the Company, or (iii) any direction
referred to in Section 5.04 or Section 5.06, if the Trustee shall not have
taken the action specified in such direction, then, with respect to clauses
(ii) and (iii), a record date shall automatically and without any action by the
Company or the Trustee be set for determining the Holders entitled to join in
such declaration or direction, which record date shall be the close of business
on the 10th calendar day (or, if such day is not a Business Day, the first
Business Day thereafter) following the calendar day on which the Trustee
receives such declaration or direction, and, with respect to clause (i), the
Trustee may set any calendar day as a record date for the purpose of
determining the Holders entitled to join in such notice of Default. Promptly
after such receipt by the Trustee of any such declaration or direction referred
to in clause (ii) or (iii), and promptly after setting any record date with
respect to clause (i), and as soon as practicable thereafter, the Trustee shall
notify the Company and the Holders of any such record date so fixed. The
Holders as of 5:00 p.m. New York City time, on such record date (or their duly
appointed agents or proxies), and only such Persons, shall be entitled to join
in such notice, declaration or direction, whether or not such Holders remain
Holders after such time; provided that,
unless such notice, declaration or direction shall have become effective by
virtue of Holders of the requisite principal amount of Notes as of 5:00 p.m.
New York City time, on



 15
 









such record
date (or their duly appointed agents or proxies) having joined therein (an “Act”) on or prior to the 90th calendar day
after such record date, such notice, declaration or direction shall
automatically and without any action by any Person be canceled and of no
further effect. Nothing in this paragraph shall be construed to prevent a
Holder (or a duly appointed agent or proxy thereof) from giving, before or
after the expiration of such 90-calendar day period, a notice, declaration or
direction contrary to or different from, or, after the expiration of such
period, identical to, the notice, declaration or direction to which such record
date relates, in which event a new record date in respect thereof shall be set
pursuant to this paragraph. For the avoidance of doubt, nothing in this
paragraph shall be construed to render ineffective any notice, declaration or
direction of the type referred to in this paragraph given at any time to the
Trustee or the Company by Holders (or their duly appointed agents or proxies)
of the requisite principal amount of Notes on the date such notice, declaration
or direction is so given.


SECTION 1.03     Notices, Etc. To The Trustee And Company.


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 to or with a
Responsible Officer of the Trustee and received at its Corporate Trust Office,
Attention: Corporate Unit.


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


The Trustee agrees to accept and act upon facsimile
transmission of written instructions and/or directions pursuant to this
Indenture given by the Company, provided, however that: (i) the Company,
subsequent to such facsimile transmission of written instructions and/or
directions, shall provide the originally executed instructions and/or
directions to the Trustee in a timely manner and (ii) such originally executed
instructions and/or directions shall be signed by an Authorized Officer of the
Company.


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.  



 16
 









SECTION 1.04     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 1.05     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 such certificates and opinions as may be
required under the Trust Indenture Act. 
Each such certificate or opinion shall be given in the form of an
Officers’ Certificate, if to be given by an Officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
applicable requirements of the Trust Indenture Act and any other requirements
set forth in this Indenture.


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 1.06     Form of Documents Delivered to Trustee.


In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.


Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous.  Any such
certificate or opinion of counsel may be based, insofar as it



 17
 









relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.


Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.


SECTION 1.07     Notice to Holders; Waiver.


Where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed herein or in the Notes for the giving of
such notice.  In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders.  Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice.  Waivers
of notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon
such waiver.


In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder.


SECTION 1.08     Trust Indenture Act.


If any provision hereof limits, qualifies or conflicts
with a provision of the Trust Indenture Act that is required under such Act to
be a part of and govern this Indenture, the latter provision shall
control.  If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that
may be so modified or excluded, the latter provision shall be deemed to apply
to this Indenture as so modified or to be excluded, as the case may be.



 18
 









SECTION 1.09     Successors and Assigns.


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 1.10     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.


SECTION 1.11     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 1.12     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 1.13     Legal Holidays.


In any case where any Interest Payment Date,
Fundamental Change Repurchase Date or the Maturity Date of any Note or the last
date on which a Holder has the right to convert his Notes shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or of
the Notes) payment of interest or principal or conversion 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 Interest Payment Date or
Fundamental Change Repurchase Date, or at the Maturity Date, or on such last
day for conversion, provided that
no interest shall accrue for the period from and after such Interest Payment
Date, Fundamental Change Repurchase Date or the Maturity Date, as the case may
be.  Notwithstanding the foregoing, the
right to convert a Note shall cease at the close of business on the Scheduled
Trading Day immediately preceding the Maturity Date.



 19
 









SECTION 1.14     Force Majeure


In no event shall the Trustee be responsible or liable
for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes or acts of God;
provided that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.


SECTION 1.15     Waiver of Jury Trial.


EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.


ARTICLE
2

NOTE FORMS


SECTION 2.01     Form Generally.


The Notes shall be in substantially the form set forth
in this Article 2, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange, the Code, and regulations thereunder, or as may,
consistent herewith, be determined by the officers executing such Notes, as
evidenced by their execution thereof. 
The Company shall furnish any such legends and endorsements to the
Trustee in writing.  All Notes shall be
in fully registered form.


Notices of Conversion shall be in substantially the
form set forth in Section 2.03.


The Notes shall be printed, lithographed, typewritten
or engraved or produced by any combination of these methods or may be produced
in any other manner permitted by the rules of any automated quotation system or
securities exchange (including on steel engraved borders if so required by any
securities exchange upon which the Notes may be listed) on which the Notes may
be listed for trading, as the case may be, all as determined by the officers
executing such Notes, as evidenced by their execution thereof.



 20
 









SECTION 2.02     Form of Note.


[FORM OF FACE OF NOTE]


The following legend shall appear on the face of each
Restricted Security:


THIS NOTE AND ANY COMMON STOCK ISSUABLE UPON THE
CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM.  EACH PURCHASER OF THIS NOTE
IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.


THIS NOTE AND ANY COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES
ACT ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (3) TO AN INSTITUTIONAL INVESTOR THAT IS AN
“ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE) OR (4) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS.


THIS NOTE, ANY SHARES OF COMMON STOCK ISSUABLE
UPON ITS CONVERSION AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON RESALES AND OTHER
TRANSFERS OF THIS NOTE AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN APPLICABLE
LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO
THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY.  THE HOLDER OF THIS NOTE AND ANY SUCH SHARES
SHALL BE DEEMED BY THE ACCEPTANCE OF THIS NOTE AND ANY SUCH SHARES TO HAVE
AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.



 21
 









The following legend shall appear on the face of each
Global Note:


THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY,
THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS NOTE FOR ALL
PURPOSES.


UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR NOTES IN DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES
REFERRED TO IN THE INDENTURE, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.



 22
 









AMYLIN PHARMACEUTICALS, INC.

3.00% Convertible Senior Notes due 2014


No.                            


CUSIP No. 032346 AE8


AMYLIN PHARMACEUTICALS, INC., a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the “Company,” which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to                                  ,
or registered assigns, the principal sum of                
United States Dollars (U.S. $              
) [if this Note is a Global Note, then insert
— (which principal amount may from time to time be decreased to such other
principal amounts by adjustments made on the records of the Registrar
hereinafter referred to in accordance with the Indenture)] on June 15, 2014,
and to pay interest thereon, from June 8, 2007, or from the most recent
Interest Payment Date (as defined below) to which interest has been paid or
duly provided for, semi-annually in arrears on June 15 and December 15 in each
year (each, an “Interest Payment Date”), commencing
December 15, 2007, at the rate of 3.00% per annum, until the principal hereof
is due, and at the same rate on any overdue principal and, to the extent
permitted by law, on any overdue interest. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date shall, as
provided in the Indenture, be paid to the Person in whose name this Note (or
one or more Predecessor Notes) is registered at the close of business on the
Regular Record Date for such interest, which shall be the May 31 or
November 30 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. 
Except as otherwise provided in the Indenture, any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in
whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee pursuant to Section 3.07 of the Indenture,
notice whereof shall be given to Holders of Notes not less than 10 calendar
days prior to the Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any automated quotation
system or securities exchange on which the Notes may then be listed for
trading, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. Payments of principal shall be made upon the
surrender of this Note by the Holder thereof at the Corporate Trust Office of
the Trustee, or at such other office or agency of the Company as may be
designated by it for such purpose in such lawful monies of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, or at such other offices or agencies as the Company
may designate.  All amounts due in cash
with respect to the Securities shall be paid (A) in the case this Note is in
global form, by wire transfer of immediately available funds to the account



 23
 









designated by the Depositary or its nominee; (B) in
the case this Note is held, other than global form, by a Holder in an aggregate
principal amount of $5.0 million or less, by check mailed to such Holders; and
(C) in the case this Note is held, other than global form, by a Holder in an
aggregate principal amount of more than $5.0 million, either by check mailed to
such holder or, upon application by such holder to the Registrar not later than
the relevant record date (in the case of an installment of interest due on an
Interest Payment Date) or 15 calendar days prior to such other date on which
such amounts are due, by wire transfer in immediately available funds to such Holder’s
account within the United States, which application shall remain in effect
until the holder notifies, in writing, the Registrar to the contrary.


Except as specifically provided herein and in the
Indenture, the Company shall not be required to make any payment with respect
to any tax, assessment or other governmental charge imposed by any government
or any political subdivision or taxing authority thereof or therein.


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


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


[Remainder
of page intentionally left blank]



 24















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


	
   

  	
  AMYLIN PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


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


Dated:                                                       


 


	
  THE BANK OF NEW YORK TRUST

  COMPANY, N.A.,

  as Trustee

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  	
   

  



 



 25
 









[FORM OF REVERSE OF NOTE]



AMYLIN PHARMACEUTICALS, INC. 

3.00% Convertible Senior Notes due 2014


This Note is one of a duly authorized issue of Notes
of the Company designated as its “3.00% Convertible Senior
Notes due 2014” (herein called the “Notes”)
issued and to be issued under the Indenture (the “Indenture”),
dated as of June 8, 2007, between the Company and The Bank of New York, a New
York banking corporation, as Trustee (herein called the “Trustee,”
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes
and of the terms upon which the Notes are, and are to be, authenticated and
delivered.  As provided in the Indenture
and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of any authorized
denominations as requested by the Holder surrendering the same upon surrender
of the Note or Notes to be exchanged, at the Corporate Trust Office of the
Trustee.  The Trustee upon such surrender
by the Holder hereof and the satisfaction of any requirements therefor set
forth in the Indenture shall issue the new Notes in the requested
denominations. Additional Notes may be issued in an unlimited aggregate
principal amount, subject to certain conditions specified in the Indenture.


No sinking fund is provided for the Notes and the
Notes are not subject to redemption at the option of the Company.


In any case where any Interest Payment Date,
Fundamental Change Repurchase Date or the Maturity Date of any Note or the last
date on which a Holder has the right to convert his Notes shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or of
the Notes) payment of interest or principal or conversion 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 Interest Payment Date or
Fundamental Change Repurchase Date, or at the Maturity Date, or on such last
day for conversion, provided that
no interest shall accrue for the period from and after such Interest Payment
Date, Fundamental Change Repurchase Date or the Maturity Date , as the case may
be. Notwithstanding the foregoing, the right to convert a Note shall cease at
the close of business on the Scheduled Trading Day immediately preceding the
Maturity Date.


The Indenture contains provisions permitting the
Company and the Trustee in certain circumstances, without the consent of the
Holders of the Notes, and in other circumstances, with the consent of the
Holders of not less than a majority in aggregate principal amount of the Notes
at the time outstanding, evidenced as in the Indenture provided, to execute
supplemental indentures adding any provisions to or changing in any manner or
eliminating any of the



 26
 









provisions of the Indenture or of any supplemental
indenture or modifying in any manner the rights of the Holders of the Notes; provided, however, that
no such supplemental indenture shall make any of the changes set forth in
Section 8.02 of the Indenture, without the consent of each Holder of an
outstanding Note affected thereby. It is also provided in the Indenture that,
prior to any declaration accelerating the maturity of the Notes, the Holders of
a majority in aggregate principal amount of the Notes at the time outstanding
may on behalf of the Holders of all of the Notes waive any past Default or
Event of Default under the Indenture and its consequences except as provided in
the Indenture. Any such consent or waiver by the Holder of this Note (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future holders and owners of this Note and any Notes which
may be issued in exchange or substitution hereof, irrespective of whether or
not any notation thereof is made upon this Note or such other Notes.


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


Subject to the provisions of the Indenture, upon the
occurrence of a Fundamental Change, the Holder has the right, at such Holder’s
option, to require the Company to repurchase all of such Holder’s Notes or any
portion thereof (in principal amounts of $1,000 or integral multiples thereof)
on the Fundamental Change Repurchase Date at a price equal to 100% of the
principal amount of the Notes such Holder elects to require the Company to
repurchase, together with accrued and unpaid interest to but excluding the
Fundamental Change Repurchase Date, unless such Fundamental Change Repurchase
Date falls after a Regular Record Date and on or prior to the corresponding
Interest Payment Date, in which case the Company shall pay the full amount of
accrued and unpaid interest payable on such Interest Payment Date to the Holder
of record at the close of business on the corresponding Regular Record Date.
The Company or, at the written request of the Company, the Trustee shall mail
to all Holders of record of the Notes a notice of the occurrence of a
Fundamental Change and of the repurchase right arising as a result thereof
after the occurrence of any Fundamental Change, but on or before the 10th
calendar day following such occurrence.


Subject to the provisions of the Indenture, the Holder
hereof has the right, at its option, on and after April 15, 2014, or
earlier upon the occurrence of certain conditions specified in the Indenture,
and prior to the close of business on the Scheduled Trading Day immediately
preceding the Maturity Date, to convert any Notes or portion thereof which is
$1,000 or an integral multiple thereof, into shares of Common Stock or



 27
 









Reference Property (if any) or, if the Company
irrevocably elects Net Share Settlement, cash and shares of Common Stock or
Reference Property (if any), in each case at the Conversion Rate specified in
the Indenture, as adjusted from time to time as provided in the Indenture, upon
satisfaction of certain requirements set forth in the Indenture, including the
surrender of this Note, together with a Notice of Conversion, a form of which
is contained under Section 2.03 of the Indenture, as provided in the Indenture
and this Note, to the Company at the office or agency of the Company maintained
for that purpose, or at the option of such Holder, the Corporate Trust Office,
and, unless the shares of Common Stock or Reference Property (if any), as the
case may be, issuable on conversion are to be issued in the same name as this
Note, duly endorsed by, or accompanied by instruments of transfer in form
satisfactory to the Company duly executed by, the Holder or by his duly
authorized attorney. The initial Conversion Rate shall be 16.3752 shares of
Common Stock for each $1,000 principal amount of Notes. No fractional shares of
Common Stock or Reference Property, as the case may be, shall be issued upon
any conversion, but an adjustment in cash shall be paid to the Holder, as
provided in the Indenture, in respect of any fraction of such share which would
otherwise be issuable upon the surrender of any Note or Notes for conversion.
No adjustment shall be made for dividends or any such shares issued upon
conversion of such Notes except as provided in the Indenture.


Upon due presentment for registration of transfer of
this Note at the office or agency of the Company, a new Note or Notes of
authorized denominations for an equal aggregate principal amount shall be
issued to the transferee in exchange thereof, subject to the limitations
provided in the Indenture, without charge except for any tax, assessments or other
governmental charge imposed in connection therewith.


The Company, the Trustee, any authenticating agent,
any Paying Agent, any Conversion Agent and any Registrar may deem and treat the
registered Holder hereof as the absolute owner of this Note (whether or not
this Note shall be overdue and notwithstanding any notation of ownership or
other writing hereon), for the purpose of receiving payment hereof, or on
account hereof, for the conversion hereof and for all other purposes, and
neither the Company nor the Trustee nor any other authenticating agent nor any
Paying Agent nor any other Conversion Agent nor any Registrar shall be affected
by any notice to the contrary. All payments made to or upon the order of such
registered Holder shall, to the extent of the sum or sums paid, satisfy and
discharge liability for monies payable on this Note.


No recourse for the payment of the principal of, or
accrued and unpaid interest on, this Note, or for any claim based hereon or
otherwise in respect hereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in the Indenture or any indenture
supplemental thereto 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



 28
 









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,
all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.


[Insert the following bracketed paragraphs if this
Note is a Registrable Security:]


[The Holder of this Note [if this security is a global
security, then insert (including any Person that has a beneficial interest in
this Note)] and the Common Stock issuable upon conversion hereof is entitled to
the benefits of a Registration Rights Agreement, dated as of June 8, 2007 (the
“Registration Rights Agreement”) between
the Company and the Initial Purchasers. 
Pursuant to the Registration Rights Agreement, the Company has agreed
for the benefit of the Holders from time to time of the Registrable Securities
that it will, at its expense, (a) file and cause to become effective a
shelf registration statement (the “Shelf Registration
Statement”) with the Commission with respect to resales of the
Registrable Securities within 180 calendar days after the Issue Date and
(b) use its reasonable best efforts to maintain such Shelf Registration
Statement effective under the Securities Act until the earliest of (i) the sale
of all Registrable Securities registered under the Shelf Registration Statement
and (ii) the expiration of the period referred to in Rule 144(k) of the
Securities Act with respect to Registrable Securities held by non-affiliates of
the Company, or any successor provision (the “Effectiveness
Period”).  The Company will be
permitted to suspend the use of the prospectus which is part of the Shelf
Registration Statement during certain periods of time as provided in the
Registration Rights Agreement.


If on or prior to the 180th day following the Issue Date,
such Shelf Registration Statement is not declared or does not become effective
(each, a “Registration Default”), or in the event
that the Shelf Registration Statement ceases to be effective (or the Holders of
the Notes that are Registrable Securities are otherwise prevented or restricted
by the Company from effecting sales pursuant thereto) (an “Effective
Failure”) during the Effectiveness Period for more than 45 days,
whether or not consecutive, during any 90-day period or for more than an
aggregate of 90 days, whether or not consecutive, for all periods in any
12-month period, additional interest (“Additional Interest”)
will accrue on the Notes that are Registrable Securities from and including the
day following such Registration Default or Effective Failure to but excluding
the day on which such Registration Default or Effective Failure has been cured
or, if applicable, the earlier expiration of the Effectiveness Period.
Additional Interest will be paid semi-annually in arrears, with the first semi-annual
payment due on the first Interest Payment Date, as applicable, in respect of
the Registrable Securities following the date on which such Additional Interest
begins to accrue, and will accrue (x) at a rate equal to one-quarter of one
percent (0.25%) of the principal



 29
 









amount of the Notes that are Registrable Securities to
and including the 90th day following such Registration Default and at a rate
equal to one-half of one percent (0.50%) of the principal amount of the Notes
that are Registrable Securities from and after the 91st day following such
Registration Default, or (y) at a rate equal to one-half of one percent (0.50%)
of the principal amount of the Notes that are Registrable Securities from and
after the 46th day following suspension of the use of the prospectus because
the Company suspended use of the prospectus for more than 45 days in any 90-day
period or from the 91st day following suspension because the Company suspended
use of the prospectus for more than an aggregate of 90 days for all periods in
any 12-month period. 


Whenever in this Note there is a reference, in any
context, to the payment of the principal of, or interest on, or in respect of,
any Note, such mention shall be deemed to include mention of the payment of
Additional Interest to the extent provided for in the Registration Rights
Agreement, and express mention of the payment of Additional Interest (if
applicable) in any provisions of this Note shall not be construed as excluding
Additional Interest in those provisions of this Note where such express mention
is not made.


By its acceptance hereof, the Holder of this Security
[if this security is a global security, then insert (including any Person that
has a beneficial interest in this Note)] agrees to be bound by the terms of the
Registration Rights Agreement relating to the Registrable Securities which are
the subject of such election.]


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


The Indenture and this Note shall be governed by
and construed in accordance with the laws of the State of New York.


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



 30
 









FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE


To:  Amylin
Pharmaceuticals, Inc.


The undersigned registered owner of this Note hereby
acknowledges receipt of a notice from Amylin Pharmaceuticals, Inc. (the “Company”) as to the occurrence of a Fundamental Change with
respect to the Company and hereby directs the Company to pay, or cause the
Trustee to pay, it or                      
an amount in cash equal to 100% of the entire principal amount, or the portion
thereof (which is $1,000 principal amount or an integral multiple thereof)
below designated, to be repurchased plus interest accrued to, but excluding,
the Fundamental Change Repurchase Date, except as provided in the Indenture.


	
  Dated:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature(s)

  	
   

  
	
   

  	
   

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

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guaranteed

  	
   

  
	
   

  	
   

  
	
  Principal amount to be repurchased (at least U.S.
  $1,000 or an integral multiple of $1,000 in excess thereof): 
                            

  	
   

  
	
   

  	
   

  
	
  Remaining principal amount following such repurchase
  (not less than U.S. $1,000): 
                            

  	
   

  



 


	
   

  	
   By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 



 31
 









SECTION
2.03     Form of Notice of Conversion.


NOTICE OF CONVERSION


The undersigned Holder of this Note hereby irrevocably
exercises the option to convert this Note, or any portion of the principal
amount hereof (which is U.S. $1,000 or an integral multiple of U.S. $1,000 in
excess thereof, provided that the unconverted
portion of such principal amount is U.S. $1,000 or any integral multiple of
U.S. $1,000 in excess thereof) below designated, into shares of Common Stock or
Reference Property or, if the Company has irrevocably elected Net Share
Settlement, into cash and, if applicable, shares of Common Stock or Reference
Property in accordance with the terms of the Indenture referred to in this
Note, and directs that such shares (or, if the Company has irrevocably elected
Net Share Settlement, a check in payment for the principal portion of the Note
to be converted and, if applicable, such shares), together with a check in
payment for any fractional share and any Notes representing any unconverted
principal amount hereof, be delivered to and be registered in the name of the
undersigned unless a different name has been indicated below. If shares of
Common Stock, Reference Property or Notes are to be registered in the name of a
Person other than the undersigned, (a) the undersigned shall pay all transfer
taxes payable with respect thereto and (b) signature(s) must be guaranteed by
an Eligible Guarantor Institution with membership in an approved signature
guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange Act of
1934. Any amount required to be paid by the undersigned on account of interest
accompanies this Note.


	
  Dated: 

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  



 


	
  If shares or Notes are to be registered in the name
  of a Person other than the Holder, please print such Person’s name and
  address:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Address)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Social Security or other Identification Number, if
  any

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [Signature Guaranteed]

  	
   

  



 



 32
 









If only a portion of the Notes is to be converted,
please indicate:


1.                                       Principal
amount to be converted: U.S. $                             


2.                                       Principal
amount and denomination of Notes

representing unconverted principal amount to be issued:                              


Amount: U.S. $                         Denominations:
U.S. $                                


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


SECTION
2.04     Form
of Assignment.


ASSIGNMENT


For value received,                           
hereby sell(s), assign(s) and transfer(s) unto                              
(Please insert Social Security or other identifying number of assignee) the
within note, and hereby irrevocably constitutes and appoints                                         
as attorney to transfer the said note on the books of the Company, with full
power of substitution in the premises.


	
  Dated:

  	
   

  	
   

  	
  Signature(s)

  	
   

  	
   

  



 


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


	
   

  	
   

  	
   

  
	
   

  	
  Signature Guaranteed

  



 



 33
 









ARTICLE
3

The Notes


SECTION 3.01     Title And Terms.


The Notes shall be known and designated as the “3.00% Convertible Senior Notes due 2014” of the
Company.  Their Maturity Date shall be
June 15, 2014, and they shall bear interest on their principal amount from June
8, 2007, payable semi-annually in arrears on June 15 and December 15 in each
year, commencing December 15, 2007, at the rate of 3.00% per annum until the
principal thereof is due; provided, however, that payments shall only be made on a Business Day
as provided in Section 1.13 of this Indenture.


The Company shall pay interest on overdue principal at
the rate borne by the Notes, and it shall pay interest on overdue installments
of interest at the same rate, in each case to the extent lawful.


The principal of and interest on the Notes shall be
payable as provided in the form of Notes set forth in Section 2.02.  The Fundamental Change Repurchase Price shall
be payable at such place as is identified in the Fundamental Change Repurchase
Right Notice given pursuant to Section 11.01(b) (such city in which the
identified Paying Agent is located being herein called a “Place of
Payment”).


The Notes shall be senior unsecured obligations of the
Company and shall rank pari passu with
all of the Company’s other senior unsecured obligations.


The Company may, without the consent of the Holders,
issue Additional Notes under this Indenture with the same terms and with the
same CUSIP number as the Notes in an unlimited aggregate principal amount,
provided that such Additional Notes are issued pursuant to a qualified
reopening or are treated as issued without original issue discount for U.S.
federal income tax purposes.


The Notes may not be redeemed at the option of the
Company prior to Maturity.


The Notes shall be convertible as provided in Article
12 (any city in which any Conversion Agent is located being herein called a “Place of Conversion”).


The Notes shall be subject to repurchase by the
Company at the option of the Holders as provided in Article 11.


The Registrable Securities are entitled to the
benefits of the Registration Rights Agreement as provided in Section 10.08 and
in the form of Note set forth in Section 2.02. 
The Notes are entitled to the payment of Additional Interest as provided
by Section 10.08 and in the form of Note set forth in Section 2.02.



 34
 









SECTION 3.02     Denominations.


The Notes shall be issuable only in registered form,
without coupons, in denominations of U.S. $1,000 and integral multiples of U.S.
$1,000 in excess thereof.


SECTION 3.03     Execution, Authentication, Delivery and Dating.


The Notes shall be executed on behalf of the Company
by its Chairman of the Board, its Vice Chairman of the Board, its President or
one of its Vice Presidents.  The
signature of any of these officers on the Notes may be manual or facsimile.


Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such Notes or
did not hold such offices at the date of such Notes.


At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Notes; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Notes as in this
Indenture provided and not otherwise.


Each Note shall be dated the date of its
authentication.


No Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Note a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such certificate
upon any Note shall be conclusive evidence, and the only evidence, that such
Note has been duly authenticated and delivered hereunder.


SECTION 3.04     Global Notes; Non-Global Notes; Book-entry
Provisions.


(a)           Global
Notes


(i)            Each Global Note
authenticated under this Indenture shall be registered in the name of the
Depositary designated by the Company for such Global Note 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. The Company hereby appoints DTC as the Depositary.



 35
 









(ii)           Except for
exchanges of Global Notes for definitive, Non-Global Notes at the sole
discretion of the Company, 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 for such
Global Note or a nominee thereof unless (A) such Depositary (i) has notified
the Company that it is unwilling or unable to continue as Depositary for such
Global Note or (ii) has ceased to be a clearing agency registered as such under
the Exchange Act or announces an intention permanently to cease business or
does in fact do so or (B) there shall have occurred and be continuing an Event
of Default with respect to such Global Note. 
In such event, if a successor Depositary for such Global Note is not
appointed by the Company within 90 calendar days after the Company receives
such notice or becomes aware of such ineligibility, the Company shall execute,
and the Trustee, upon receipt of an Officers’ Certificate directing the
authentication and delivery of Notes, shall authenticate and deliver, Notes, in
any authorized denominations in an aggregate principal amount equal to the
principal amount of such Global Note in exchange for such Global Note.


(iii)          If any Global Note
is to be exchanged for other Notes or canceled in whole, it shall be
surrendered by or on behalf of the Depositary or its nominee to the Trustee, as
Registrar, for exchange or cancellation, as provided in this Article 3. If any
Global Note is to be exchanged for other Notes or canceled in part, or if
another Note is to be exchanged in whole or in part for a beneficial interest
in any Global Note, in each case as provided in this Article 3, then either (A)
such Global Note shall be so surrendered for exchange or cancellation, as
provided in this Article 3, or (B) the principal amount thereof shall be
reduced or increased by an amount equal to the portion thereof to be so
exchanged or canceled, or equal to the principal amount of such other Note to
be so exchanged for a beneficial interest therein, as the case may be, by means
of an appropriate adjustment made on the records of the Trustee, as Registrar,
whereupon the Trustee, in accordance with the Applicable Procedures, shall
instruct the Depositary or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of a Global
Note, the Trustee shall, subject to this Article 3, authenticate and deliver
any Notes issuable in exchange for such Global Note (or any portion thereof) to
or upon the order of, and registered in such names as may be directed by, the
Depositary or its authorized representative. The Trustee shall



 36
 









be entitled to receive from the Depositary
the names, addresses and tax identification numbers of the Persons in whose
names the Notes are to be registered prior to such authentication and
delivery.  Upon the request of the
Trustee in connection with the occurrence of any of the events specified in the
preceding paragraph, the Company shall promptly make available to the Trustee a
reasonable supply of Notes that are not in the form of Global Notes. The
Trustee shall be entitled to rely upon any order, direction or request of the
Depositary or its authorized representative which is given or made pursuant to
this Article 3 if such order, direction or request is given or made in
accordance with the Applicable Procedures.


(iv)          Every Note
authenticated and delivered upon registration of transfer of, or in exchange
for or in lieu of, a Global Note or any portion thereof, whether pursuant to
this Article 3 or otherwise, shall be authenticated and delivered in the form
of, and shall be, a registered Global Note, unless such Note is to be
registered in accordance with this Article 3 in the name of a Person other than
the Depositary for such Global Note or a nominee thereof, in which case such
Note shall be authenticated and delivered in definitive, fully registered form,
without interest coupons.


(v)           The Depositary or
its nominee, as registered owner of a Global Note, shall be the Holder of such
Global Note for all purposes under this Indenture and the Notes, and owners of
beneficial interests in a Global Note shall hold such interests pursuant to the
Applicable Procedures.  Accordingly, any
such owner’s beneficial interest in a Global Note shall be shown only on, and
the transfer of such interest shall be effected only through, records
maintained by the Depositary or its nominee or its Agent Members and such
owners of beneficial interests in a Global Note shall not be considered the
owners or holders thereof.


(b)           Non-Global
Notes.  Notes issued pursuant to Section
3.04(a)(ii) shall be in definitive, fully registered form, without interest
coupons.


SECTION 3.05     Persons Deemed Owners.


Prior to due presentment of a Note for registration of
transfer, the Company, the Trustee, any Paying Agent and any agent of the
Company, the Trustee or any Paying Agent may treat the Person in whose name
such Note is registered as the owner of such Note for the purpose of receiving
payment of principal of and (subject to Section 3.07) interest on such Note and
for all other purposes whatsoever, whether or not such Note be overdue, and
neither the Company, the Trustee, any Paying Agent nor any agent of the
Company, the Trustee or any Paying Agent shall be affected by notice to the
contrary.


SECTION 3.06     Mutilated, Destroyed, Lost and Stolen Notes.


If any mutilated
Note is surrendered to the Trustee, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a new Note of like tenor
and principal amount and bearing a number not contemporaneously outstanding.



 37















If there shall be
delivered to the Company and the Trustee (i) evidence to their satisfaction of
the destruction, loss or theft of any Note and (ii) such security or indemnity
as may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Note has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.


In case any such
mutilated, destroyed, lost or stolen Note has become or is about to become due
and payable, the Company in its discretion may, instead of issuing a new Note,
pay such Note.


Upon the issuance
of any new Note under this Section 3.06, the Company may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.


Every new Note
issued pursuant to this Section 3.06 in lieu of any destroyed, lost or stolen
Note shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Note shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder.


The provisions of
this Section 3.06 are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes.


SECTION 3.07     Payment of Interest;
Interest Rights Preserved.


Interest on any
Note which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Note (or
one or more Predecessor Notes) is registered at the close of business on the
Regular Record Date for such interest.


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 Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (a) or (b) below:


(a)           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:



 38
 









the
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Note and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements reasonably satisfactory to the Trustee for
such deposit 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 15 days and not less than
10 days prior to the date of the proposed payment and not less than 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 Register, not less than 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 (b).


(b)           The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, 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.


Subject to the
foregoing provisions of this Section 3.07, each Note delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Note shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Note, as provided for in this
Indenture and the Notes.


Upon conversion, a
Holder shall not receive any separate cash payment for accrued and unpaid
interest except as set forth below. The Company’s settlement of the Conversion
Obligation as described above shall be deemed to satisfy its obligation to pay
the principal amount of the Note and accrued and unpaid interest to, but not
including, the Conversion Date. As a result, accrued and unpaid interest
(including Additional Interest, if any) to, but not including, the Conversion
Date shall be deemed to be paid in full rather than cancelled, extinguished or
forfeited. Notwithstanding the preceding sentence, if Notes are converted after
5:00 p.m., New York City time, on a Regular Record Date, Holders of such Notes
as of 5:00 p.m., New York City time, on such Regular Record Date shall receive
the interest payable on such Notes on the corresponding



 39
 









Interest Payment Date
notwithstanding the conversion. Notes surrendered for conversion during the period
from 5:00 p.m., New York City time, on any Regular Record Date to 9:00 a.m.,
New York City time, on the immediately following Interest Payment Date must be
accompanied by payment of an amount in cash equal to the interest payable, on
such Interest Payment Date, on the Notes so converted; provided, however, that
no such payment need be made (i) if the Company has specified a Fundamental
Change Purchase Date that is after a Regular Record Date and on or prior to the
corresponding Interest Payment Date; (ii) to the extent of any overdue
interest, if any overdue interest remains unpaid at the time of conversion with
respect to such Note; or (iii) with respect to any Conversion Date that occurs
during the period from the close of business on the Regular Record Date
immediately preceding the Maturity Date to the Maturity Date. Except as
described above, no payment or adjustment shall be made for accrued interest on
converted Notes.


SECTION 3.08     Cancellation.


All Notes
surrendered for payment, registration of transfer or exchange or conversion
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly cancelled by it. 
The Company may at any time deliver to the Trustee for cancellation any
Notes previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Trustee.  No
Notes shall be authenticated in lieu of or in exchange for any Notes cancelled
as provided in this Section 3.08, except as expressly permitted by this
Indenture.  All cancelled Notes held by
the Trustee shall be disposed of in its customary manner.


SECTION 3.09     Computation of Interest.


Interest on the
Notes shall be computed on the basis of a 360-day year of twelve 30-day months.


SECTION 3.10     Calculations in Respect of
Notes.


Except as
otherwise provided in this Indenture, the Company is responsible for making all
calculations called for under the Notes or in connection with a conversion.  The Company shall make all such calculations
in good faith and, absent manifest error, the Company’s calculations shall be
final and binding on the Holders.  The
Company shall provide a schedule of its calculations to each of the Trustee and
the Conversion Agent, and each of the Trustee and the Conversion Agent is
entitled to rely conclusively upon the accuracy of the Company’s
calculations.  The Trustee shall forward
the Company’s calculations as to any Holder upon the request of such Holder.



 40
 









ARTICLE 4

DISCHARGE


SECTION 4.01     Discharge of Liability on
Notes.


When (1) the
Company shall deliver to the Registrar for cancellation all Notes then
Outstanding not theretofore delivered to the Registrar for cancellation or (2)
all the Notes then Outstanding not theretofore delivered to the Registrar for
cancellation shall have (a) been deposited for conversion (after all related
Observation Periods have elapsed) and the Company shall have delivered to the
Holders shares of Common Stock (or, if the Company has irrevocably selected Net
Share Settlement, cash, and, if applicable, shares of Common Stock) sufficient
to pay all amounts owing in respect of all such Notes upon such conversion or
(b) become due and payable on the Maturity Date, Fundamental Change Repurchase
Date or otherwise, and the Company shall deposit with the Trustee cash
sufficient to pay all amounts owing in respect of all such Notes, including the
principal amount and interest accrued and unpaid to the Maturity Date,
Fundamental Change Repurchase Date or other such date, and if in either case of
clauses (1) or (2) the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company, then this Indenture with respect to the
Notes shall cease to be of further effect (except as to (i) in the case of
clause (2) remaining rights of registration of transfer, substitution and
exchange and conversion of Notes, (ii) in the case of clause (2) rights
hereunder of Holders to receive from the Trustee payments of the amounts then
due, including interest with respect to the Notes and the other rights, duties
and obligations of Holders, as beneficiaries hereof solely with respect to the
amounts, if any, so deposited with the Trustee, (iii) the rights, obligations
and immunities of the Trustee, Authenticating Agent, Paying Agent, Conversion
Agent and Registrar under this Indenture with respect to the Notes and (iv) in
the case of clause (2) the right to receive Additional Interest as provided in
the Registration Rights Agreement), and the Trustee, on demand of the Company
accompanied by an Officers’ Certificate and an Opinion of Counsel as required
by Section 4.03 and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging this Indenture
with respect to the Notes; provided,
however, the Company hereby
agrees to reimburse the Trustee, Authenticating Agent, Paying Agent, Conversion
Agent and Registrar for any costs or expenses thereafter reasonably and
properly incurred by the Trustee, Authenticating Agent, Paying Agent,
Conversion Agent and Registrar and to compensate the Trustee, Authenticating
Agent, Paying Agent, Conversion Agent and Registrar for any services thereafter
reasonably and properly rendered by the Trustee, Authenticating Agent, Paying
Agent, Conversion Agent and Registrar in connection with this Indenture with
respect to the Notes.



 41
 









SECTION 4.02     Reinstatement.


If the Trustee or
the Paying Agent is unable to apply any money to the Holders entitled thereto
by reason of any order or judgment of any court of governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company’s
obligations under this Indenture with respect to the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 4.01 until
such time as the Trustee or the Paying Agent is permitted to apply all such
money in accordance with this Indenture and the Notes to the Holders entitled
thereto; provided, however, that
if the Company makes any payment of principal amount of or interest on 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.


SECTION 4.03     Officers’ Certificate;
Opinion of Counsel.


Upon any
application or demand by the Company to the Trustee to take any action under
Section 4.01, the Company shall furnish to the Trustee an Officers’ Certificate
and Opinion of Counsel stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with.


ARTICLE 5

REMEDIES


SECTION 5.01     Events of Default.


“Event of Default,” wherever used herein,
means any one of the following events with respect to the Notes (whatever the
reason for such Event of Default or 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):


(a)           default in any payment of interest on any
Note when due and payable and the default continues for a period of 30 calendar
days; or


(b)           default in the payment of principal of any
Note when due and payable at Maturity, upon required repurchase, upon
declaration or otherwise; or


(c)           failure by the Company to comply with its
obligation to convert the Notes into shares of Common Stock and, if applicable,
cash and shares of Common Stock upon exercise of a Holder’s conversion right;
or


(d)           failure by the Company to comply with its
obligations under Section 7.01; or



 42
 









(e)           failure by the Company to comply with its
notice requirements under Section 11.01(b) or Section 12.01(b)-(d) when due; or


(f)            failure by the Company for 60 calendar days
to comply with any of its other agreements contained in the Notes or this
Indenture after written notice of such Default from the Trustee or the Holders
of at least 25% principal amount of the Outstanding Notes has been received by
the Company; or


(g)           default by the Company or any Subsidiary of
the Company with respect to any mortgage, agreement or other instrument under
which there may be outstanding, or by which there may be secured or evidenced,
any debt for money borrowed in excess of $50.0 million in the aggregate of the
Company and/or any such Subsidiary, whether such debt now exists or shall
hereafter be created, which default results (i) in such debt becoming or
being declared due and payable and such debt has not been discharged in full or
such declaration rescinded or annulled within 30 days or (ii) from a
failure to pay the principal of any such debt when due and payable at its
stated maturity, upon required repurchase, upon declaration or otherwise and
such defaulted payment shall not have been made, waived or extended within 30
days; or


(h)           failure by the Company or any of its
Subsidiaries, within 60 calendar days, to pay, bond or otherwise discharge any
judgments or orders for the payment of money the total uninsured amount of
which for the Company or any of its Subsidiaries exceeds in the aggregate $50.0
million, which are not stayed on appeal; or


(i)            the Company shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief with
respect to the Company or any of its Significant Subsidiaries 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 of its Significant Subsidiaries
or any substantial part of its property, 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 it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due; or


(j)            an involuntary case or other proceeding shall
be commenced against the Company or any of its Significant Subsidiaries 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 of its Significant Subsidiaries
or any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of sixty (60)
consecutive calendar days.



 43
 









SECTION 5.02     Acceleration of Maturity;
Rescission and Annulment.


If an Event of
Default (other than an Event of Default specified in Section 5.01(i) or Section
5.01(j) with respect to the Company) occurs and is continuing, then in every
such case (except as provided in the immediately following paragraph) the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Notes may declare the principal of and accrued and unpaid interest
on all such Notes to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal and all accrued interest thereon shall become
immediately due and payable. If an Event of Default specified in Section
5.01(i) or Section 5.01(j) with respect to the Company occurs, the principal
of, and accrued interest on, all of the Notes shall become immediately due and
payable without any declaration or other Act of the Holders or any act on the
part of the Trustee.


Notwithstanding
the foregoing, at the election of the Company, the sole remedy for an Event of
Default specified in Section 5.01(f) relating to the failure by the Company to
comply with its obligations under Section 10.06 and for any failure by the
Company to comply with the requirements of Section 314(a)(1) of the Trust
Indenture Act, shall for the first 90 calendar days after the occurrence of
such an Event of Default consist exclusively of the right (the “Extension Right”) to receive an extension
fee on the Notes in an amount equal to 0.25% of the principal amount of the
Notes (the “Extension Fee”).  If the Company elects to pay the Extension
Fee as the sole remedy for an Event of Default specified in Section 5.01(f)
relating to the failure by the Company to comply with its obligations under Section
10.06 and for any failure by the Company to comply with the requirements of
Section 314(a)(1) of the Trust Indenture Act, the Company (i) shall
notify, in the manner provided for in Section 1.07, the Holders and the Trustee
of such election prior to the first Business Day following the date on which
such Event of Default occurs and (ii) pay the Extension Fee, on or before the
close of business on the date on which such Event of Default occurs, on all
Notes then Outstanding.  Upon the
Company’s failure to give such notice or to pay the Extension Fee when due, the
Notes shall be subject to acceleration as provided in the first paragraph of
this Section 5.02.  On the 91st calendar
day after such Event of Default occurs, if such Event of Default is not cured
or waived prior to such 91st calendar day, the Notes shall be subject to
acceleration as provided in the first paragraph of this Section 5.02.  If an Extension Fee is payable under this
Section 5.02, the Company shall deliver to the Trustee a certificate to that
effect stating (i) the amount of such Extension Fee that is payable and (ii)
the date on which such Extension Fee is payable.  Unless and until a Responsible Officer of the
Trustee receives at the Corporate Trust Office such a certificate, the Trustee
may assume without inquiry that the Extension Fee is not payable.  If the Extension Fee has been paid by the
Company directly to the persons entitled to it, the Company shall deliver to
the Trustee a certificate setting forth the particulars of such payment.



 44
 









Notwithstanding
the foregoing paragraph, if an event of default occurs under any series of the
Company’s debt securities (other than the Notes) issued subsequent to the Issue
Date resulting from the Company’s failure to comply with obligations similar to
those contained in Section 10.06 or the requirements of Section 314(a)(1)
of the Trust Indenture Act, and such event of default is not subject to
extension on terms similar to those set forth in the foregoing paragraph, then
the Extension Right shall no longer apply and the Notes shall be subject to
acceleration as provided in the first paragraph of this Section 5.02.


This Section 5.02,
however, is subject to the conditions that if, at any time after the principal
of the Notes shall have been so declared due and payable, and before any
judgment or decree for the payment of the monies due shall have been obtained
or entered as hereinafter provided, the Company shall pay or shall deposit with
the Trustee a sum sufficient to pay installments of accrued and unpaid interest
upon all Notes and the principal of any and all Notes that shall have become
due otherwise than by acceleration (with interest on overdue installments of
accrued and unpaid interest (to the extent that payment of such interest is enforceable
under applicable law) and on such principal at the rate borne by the Notes
during the period of such Default) and amounts due to the Trustee pursuant to
Section 6.07, and if (1) rescission would not conflict with any judgment or
decree of a court of competent jurisdiction and (2) any and all Events of
Defaults under this Indenture with respect to such Notes, other than the
nonpayment of principal of and accrued and unpaid interest on such Notes that
shall have become due solely by such acceleration or failure to deliver amounts
due upon conversion, shall have been cured or waived pursuant to Section 5.04,
then and in every such case the Holders of a majority in aggregate principal
amount of the Outstanding Notes, by written notice to the Company and to the
Trustee, may waive all Defaults or Events of Default with respect to the Notes
and rescind and annul such declaration and its consequences and such Default
shall cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this Indenture; but no such
waiver 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 the Trustee in writing, promptly upon
becoming aware thereof, of any Event of Default by delivering to the Trustee a
statement specifying such Event of Default and any action the Company has
taken, is taking or proposes to take with respect thereto.  No rescission or annulment referred to above
shall affect any subsequent Default or impair any right consequent thereon.


SECTION 5.03     Unconditional Right of
Holders to Receive Principal and Interest and to Convert.


Notwithstanding
any other provision in this Indenture, the Holder of any Note shall have the
right, which is absolute and unconditional, to receive payment of the principal
of and (subject to Section 3.07) interest on such Note on the Maturity Date,
and to convert such Note in accordance with Article 12, and to



 45
 









institute suit for the
enforcement of any such payment and right to convert, and such rights shall not
be impaired without the consent of such Holder.


SECTION 5.04     Waiver of Past Defaults.


The Holders of not
less than a majority in principal amount of the Outstanding Notes may on behalf
of the Holders of all of the Notes waive any past Default hereunder and its
consequences, except a Default (A) in the payment of the principal of or
interest on any Note, or (B) in respect of a covenant or provision hereof which
under Article 8 cannot be modified or amended without the consent of the Holder
of each Outstanding Note affected.  Any
such waiver may be obtained by way of written consents, including without
limitation consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes.


Upon any such
waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.


SECTION 5.05     Waiver of Stay, Usury or
Extension Laws.


The Company
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, usury or extension law wherever enacted, now
or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law and covenants that it shall not hinder, delay or impede by reason of such
law the execution of any power herein granted to the Trustee, but shall suffer
and permit the execution of every such power as though no such law had been
enacted.


SECTION 5.06     Control by Holders.


The Holders of a
majority in principal amount of the Outstanding Notes 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 deemed
proper by the Trustee which is not inconsistent with such direction; and


(c)           the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, is unduly prejudicial to
the rights of other Holders or would



 46
 









involve
the Trustee in personal liability unless the Trustee is offered indemnity
reasonably satisfactory to it.


SECTION 5.07     Collection of Indebtedness
and Suits for Enforcement by Trustee.


The Company
covenants that if:


(1)           default is made in the payment of any interest on any Note when such
interest becomes due and payable and such default continues for a period of 30
days, or


(2)           default is made in the payment of the principal of (or premium, if any,
on) any Note at the Maturity thereof,


the Company will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such Notes,
the whole amount then due and payable on such Notes for principal and interest,
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and on any overdue interest, 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 the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.


If an Event of
Default occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.


SECTION 5.08     Trustee May File Proofs of
Claim.


In case of any
judicial proceeding relative to the Company (or any other obligor upon the
Notes), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding.  In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.



 47
 









No provision of
this Indenture shall be deemed to authorize the Trustee to authorize or consent
to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding.


SECTION 5.09     Trustee May Enforce Claims
Without Possession of Notes.


All rights of action
and claims under this Indenture or the Notes may be prosecuted and enforced by
the Trustee without the possession of any of the Notes or the production
thereof in any proceeding relating thereto, and any such 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 respect of which such judgment has been recovered.


SECTION 5.10     Application of Money
Collected.


Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Notes and the notation thereon of 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 6.07; and


SECOND:  To the
payment of the amounts then due and unpaid for principal of and interest on the
Notes in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Notes for principal and interest, respectively.


SECTION 5.11     Limitation on Suits.


Subject to Section
5.03, no Holder of any Note shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless:


(1)           such Holder has previously given written notice to the Trustee of a continuing
Event of Default;


(2)           the Holders of not less than 25% in principal amount of the Outstanding
Notes shall have made written request to the Trustee to



 48
 









institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;


(3)           such Holder or Holders have offered to the Trustee security or
indemnity satisfactory to it against any costs, liability or expense;


(4)           the Trustee for 60 days after its receipt of such notice, request and
offer of security or indemnity has failed to institute any such proceeding; and


(5)           no direction that, in the opinion of the Trustee, is inconsistent with
such written request has been given to the Trustee during such 60-day period by
the Holders of a majority in principal amount of the Outstanding Notes;


it being understood and
intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders, or to obtain or
to seek to obtain priority or preference over any other Holders or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all the Holders.


SECTION 5.12     Restoration of Rights and
Remedies.


If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.


SECTION 5.13     Rights and Remedies
Cumulative.


Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in the last paragraph of Section 3.06, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise.  The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.



 49
 









SECTION 5.14     Delay or Omission Not
Waiver.


No delay or
omission of the Trustee or of any Holder of any Note to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence
therein.  Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.


SECTION 5.15     Undertaking for Costs.


In any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
a court may require any party litigant in such suit to file an undertaking to
pay the costs of such suit, and may assess reasonable costs, including
reasonable attorneys’ fees and expenses, against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided,
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company or in any suit for the enforcement
of the right to convert any Note in accordance with Article 12.


ARTICLE 6

THE TRUSTEE


SECTION 6.01     Certain Duties and
Responsibilities.


(a)           Except during the continuance of an Event of
Default,


(1)           the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture or required under the Trust
Indenture Act, and no other covenants or obligations shall be read into this
Indenture against the Trustee; and


(2)           in the absence of bad faith or willful misconduct on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon 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 provision
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)           In case an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture,



 50
 









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 such person’s
own affairs.


(c)           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:


(1)           this Subsection shall not be construed to limit the effect of
Subsection (a)(1) of this Section; and


(2)           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 direction of the
Holders of a majority in principal amount of the Outstanding Notes 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 with respect to the Notes;


(d)           No provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.


(e)           Whether or not therein expressly so 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 6.01.


SECTION 6.02     Notice of Defaults.


Within 90 days
after the occurrence thereof, and if known to the Trustee, the Trustee shall
mail notice to each Holder of each Default or Event of Default with respect to
the Notes known to the Trustee, by transmitting such notice to Holders
contained in the most recent list furnished to the Trustee as provided in
Section 9.01 and the names and addresses of Holders received by the Trustee in
its capacity as Registrar.  Except in the
case of a Default in the payment of principal of or interest on any Note or
conversion default, the Trustee may withhold notice if and so long as a
committee of trust officers of the Trustee in good faith determines that
withholding notice is in the interests of the Holders.


SECTION 6.03     Certain Rights of Trustee.


Subject to the
provisions of Section 6.01:


(a)           the Trustee may conclusively rely and shall
be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument,



 51
 









opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;


(b)           any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order, and any resolution of the Board of Directors mentioned in this
Indenture shall be sufficiently evidenced by a Board Resolution;


(c)           whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers’ Certificate;


(d)           the Trustee may consult with counsel of its
selection and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;


(e)           the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;


(f)            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, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, 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,
except for the Trustee’s own negligent action, its own negligent failure to
act, or its own willful misconduct; and


(g)           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 with
due care by it hereunder;


(h)           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



 52
 









authorized
or within the discretion or rights or powers conferred upon it by this
Indenture;


(i)            in no event shall the Trustee be responsible
or liable for special, indirect, or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit), unless such loss or
damage results from the bad faith or willful misconduct of the Trustee,  irrespective of whether the Trustee has been
advised of the likelihood of such loss or damage and regardless of the form of
action;


(j)            the Trustee shall not be deemed to have
notice of any Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Notes and this
Indenture;


(k)           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; and


(l)            the Trustee may request that the Company
deliver a certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture.


SECTION 6.04     Not Responsible for
Recitals or Issuance of Notes.


The recitals
contained herein and in the Notes, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and neither
the Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes. 
Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Notes or the proceeds thereof.


SECTION 6.05     May Hold Notes.


The Trustee, any
Authenticating Agent, any Paying Agent, any Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Notes and, subject to Section 6.08 and Section 6.13, may otherwise
deal with the Company with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Registrar or such other agent.



 53
 









SECTION 6.06     Money Held In Trust.


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 otherwise agreed with
the Company.


SECTION 6.07     Compensation and
Reimbursement.


The Company agrees


(a)           to pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee
of an express trust);


(b)           except as otherwise expressly provided
herein, to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be determined to have been caused by its own
negligence or willful misconduct; and


(c)           to indemnify each of the Trustee or any
predecessor Trustee and their agents for, and to hold them harmless against,
any and all loss, damages, claims, liability or expense, including taxes (other
than taxes based upon, measured by or determined by the income of the Trustee),
incurred without negligence or willful misconduct on its part, arising out of
or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim (whether asserted by the Company, a Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers
or duties hereunder or in connection with the enforcement of the provisions of
this Section.


The Trustee shall
have a lien prior to the Notes as to all property and funds held by it
hereunder for any amount owing it or any predecessor Trustee pursuant to this
Section 6.07, except with respect to funds held in trust for the benefit of the
Holders of particular Notes.


When the Trustee
incurs expenses or renders services in connection with an Event of Default
specified in Section 5.01(i) or Section 5.01(j), the expenses (including the
reasonable charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
applicable Federal or state bankruptcy, insolvency or other similar law.



 54















The
provisions of this Section shall survive the termination of this Indenture and
the resignation or removal of the Trustee.


SECTION 6.08     Conflicting Interests.


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 6.09     Corporate Trustee Required;
Eligibility.


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.  If such
Person publishes reports of condition at least annually, pursuant to law or to
the requirements of its supervising or examining authority, then for the
purposes of this Section 6.09 and to the extent permitted by the Trust
Indenture Act, 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 6.09, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.


SECTION 6.10     Resignation and Removal;
Appointment Of Successor.


No resignation or
removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section
6.11.


The Trustee may
resign at any time by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the Company’s
expense, any court of competent jurisdiction for the appointment of a successor
Trustee.


The Trustee may be
removed at any time by Act of the Holders of a majority in principal amount of
the Outstanding Notes, delivered to the Trustee and to the Company.


If at any time:


(a)           the Trustee shall
fail to comply with Section 6.08 after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Note for at least six
months, or



 55
 









(b)           the Trustee shall
cease to be eligible under Section 6.09 and shall fail to resign after written
request therefor by the Company or by any such Holder, or


(c)           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,
(A) the Company by a Board Resolution may remove the Trustee or
(B) any Holder who has been a bona fide Holder of a Note for at least six
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 or Trustees.


If the Trustee
shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees.  If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 6.11,
become the successor Trustee and supersede the successor Trustee appointed by
the Company.  If no successor Trustee
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, the Trustee being removed,
at the expense of the Company, may, or any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.


The Company shall
give notice of each resignation and each removal of the Trustee and each
appointment of a successor Trustee to all Holders in the manner provided in
Section 1.06.  Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust
Office.


SECTION 6.11     Acceptance of Appointment
by Successor.


Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers



 56
 









and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.


Upon request of
any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts.


No successor
Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.


SECTION 6.12      Merger, Conversion,
Consolidation or Succession to Business.


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 the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as
if such successor Trustee had itself authenticated such Notes.


SECTION 6.13     Preferential Collection of
Claims Against Company.


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 claims against the Company (or any
such other obligor).


SECTION 6.14     Appointment of
Authenticating Agent.


The Trustee may
appoint an Authenticating Agent or Agents which shall be authorized to act on
behalf of the Trustee to authenticate Notes issued upon original issue and upon
exchange, registration of transfer or partial repurchase thereof or pursuant to
Section 3.07, and Notes so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Notes by the Trustee or the
Trustee’s certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the



 57
 









Company and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section 6.14, the combined capital and surplus of such Authenticating
Agent 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 an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.14, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 6.14.


Any corporation
into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which such Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust business of
an Authenticating Agent, shall continue to be an Authenticating Agent, provided
such corporation shall be otherwise eligible under this Section 6.14, without
the execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.


An Authenticating
Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof 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 such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section 6.14,
the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall give notice of such appointment in the
manner provided in Section 1.07 to all Holders. 
Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 6.14.


The Trustee agrees
to pay to each Authenticating Agent from time to time reasonable compensation
for its services under this Section 6.14, and the Trustee shall be entitled to
be reimbursed for such payments, subject to the provisions of Section 6.07.


If an appointment
with respect to the Notes is made pursuant to this Section 6.14, the Notes may
have endorsed thereon, in addition to the Trustee’s certificate of
authentication, an alternative certificate of authentication in the following
form:



 58
 









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


	
   

  	
  

  	
  ,

  
	
   

  	
  As
  Trustee

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
  ,

  
	
   

  	
  As
  Authenticating Agent

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Authorized
  Officer

  
				



 



 59
 









ARTICLE 7

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE


SECTION 7.01     Company May Consolidate,
Etc., Only on Certain Terms.


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


(1)           the resulting, surviving or
transferee Person, if not the Company, is a corporation organized and existing
under the laws of the United States of America, any State thereof or the District
of Columbia, and such Person, if not the Company, expressly assumes by
supplemental indenture all of the Company’s obligations under the Notes and
this Indenture;


(2)           immediately after giving effect to
such transaction, no Default has occurred and is continuing under this
Indenture or the Registration Rights Agreement; and


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


SECTION 7.02     Successor Substituted.


Upon any
consolidation of the Company with, or merger of the Company into, any other
Person or any conveyance, transfer or lease of all or substantially all of the
properties and assets of the Company in accordance with Section 7.01, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Notes.



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ARTICLE 8

SUPPLEMENTAL INDENTURES


SECTION 8.01     Supplemental Indentures
Without Consent of Holders of Notes.


Without the
consent of any Holders of Notes, the Company, when authorized by a Board
Resolution, and the Trustee, upon receipt of a Company Request, at any time and
from time to time, may enter into one or more indentures supplemental hereto
for any of the following purposes:


(a)           (x) to cure any
ambiguity, manifest error or defect or (y) to cure any omission or
inconsistency, provided that in the case of clause (y) only if the rights of
the Holders are not adversely affected in any material respect; or


(b)           to evidence the
succession of another corporation to the Company and the assumption by any such
successor of the covenants and obligations of the Company herein and in the
Notes as permitted by Section 7.01; or


(c)           to add guarantees
with respect to the Notes; or


(d)           to secure the Notes;
or


(e)           to add to the
covenants of the Company or Events of Default for the benefit of the Holders of
Notes or to surrender any right or power herein conferred upon the Company; or


(f)            to provide for the
conversion of Notes pursuant to Section 12.10; or


(g)           to make any changes
that does not adversely affect the rights of any Holder of Notes in any
material respect, provided that
any amendment to conform the terms of this Indenture or the Notes to the
description of Notes contained in the Offering Circular shall not be deemed to
be adverse to any Holder of Notes; or


(h)           to comply with the
requirements of the Trust Indenture Act or the rules and regulations of the
Commission thereunder in order to effect or maintain the qualification of this
Indenture under the Trust Indenture Act, as contemplated by this Indenture or
otherwise; or


(i)            to make any changes
or modifications necessary in connection with the registration of the Notes
under the Securities Act as contemplated in the Registration Rights Agreement, provided that such change or modification
does not adversely affect the interests of the Holders of Notes in any material
respect.



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In addition, in
accordance with Section 3.01, without the consent of any Holders of Notes,
the Company, when authorized by a Board Resolution, and the Trustee, upon
receipt of a Company Request, may enter into a supplemental indenture to
provide for the issuance of Additional Notes.


Upon Company
Request, accompanied by a Board Resolution authorizing the execution of any
such supplemental indenture the Trustee shall join with the Company in the
execution of any supplemental indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations
that may be therein contained.


SECTION 8.02     Supplemental Indentures
With Consent of Holders of Notes.


With the written
consent of the Holders of not less than a majority in principal amount of the
Outstanding Notes, by the Act of said Holders delivered to the Company and the
Trustee (including without limitation consents obtained in connection with a
purchase of, or tender offer or exchange offer for, Notes), the Company, when
authorized by a Board Resolution, and the Trustee may 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 of modifying in any manner the rights of the Holders of Notes
under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby:


(a)           reduce the
percentage in aggregate principal amount of Notes the Holders of which must
consent to an amendment; or


(b)           reduce the rate,
extend the stated time for payment, of interest on any Note or reduce the
amount, or extend the stated time for payment, of the Extension Fee; or


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


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


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


(f)            change the place or
currency of payment of principal, interest or the Extension Fee in respect of
any Note; or



 62
 









(g)           impair the right of
any Holder to receive payment of principal of, and interest on, such Holder’s
Notes on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder’s Note; or


(h)           adversely affect the
ranking of the Notes as the senior unsecured Indebtedness of the Company; or


(i)            make any change in
the provisions of this Article 8 that require each Holder’s consent or in the
waiver provisions in Section 5.02 and Section 5.04.


It shall not be
necessary for any Act of Holders of Notes under this Section 8.02 to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.


SECTION 8.03     Notice of Supplemental
Indentures.


Promptly after the
execution by the Company and the Trustee of any supplemental indenture pursuant
to the provisions of Section 8.02, the Company shall give notice in the manner
provided in Section 1.07 to all Holders of Notes briefly setting forth in
general terms the substance of such supplemental indenture. Any failure of the
Company to give such notice, or any defect therein, shall not in any way impair
or affect the validity of any such supplemental indenture.


SECTION 8.04     Effect of Supplemental
Indentures.


Upon the execution
of any supplemental indenture under this Article 8, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.


SECTION 8.05     Conformity with Trust
Indenture Act.


Every supplemental
indenture executed pursuant to this Article 8 shall conform to the requirements
of the Trust Indenture Act.


SECTION 8.06     Trustee to Sign Amendments,
etc.


The Trustee will
sign any amended or supplemental indenture authorized pursuant to this Article
8 if the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. 
The Company may not sign an amended or supplemental indenture until the
Board of the Company approves it.  In
executing any amended or supplemental indenture, the Trustee will be provided
with and (subject to Section 6.01 hereof) will be fully protected in relying
upon, in addition to the documents required by Section 1.05 hereof, an
Officers’ Certificate and an Opinion of Counsel stating that the



 63
 









execution of such amended
or supplemental indenture is authorized or permitted by this Indenture.


ARTICLE 9

HOLDERS LISTS AND BY TRUSTEE AND COMPANY


SECTION 9.01     Company to Furnish Trustee
Names and Addresses of Holders.


The Company will
furnish or cause to be furnished to the Trustee


(a)           semi-annually, not
more than 15 days after each Regular Record Date, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders as of
such Regular Record Date, and


(b)           at such other times
as the Trustee may request in writing, within 30 days after the receipt by the
Company of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished;


excluding
from any such list names and addresses received by the Trustee in its capacity
as Registrar; provided that no such list need be furnished by the Company so
long as the Trustee is acting as the sole Registrar.


SECTION 9.02     Preservation of
Information.


(a)           The Trustee shall
preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee
as provided in Section 9.01 and the names and addresses of Holders received by
the Trustee in its capacity as Registrar. 
The Trustee may destroy any list furnished to it as provided in Section
9.01 upon receipt of a new list so furnished.


(b)           The rights of
Holders to communicate with other Holders 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 Holder of
Notes, 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 made pursuant to the Trust Indenture Act.



 64
 









SECTION 9.03     Communication to Holders.


(a)           The Trustee shall
transmit to Holders such reports 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. 
If required by Section 313 (a) of the Trust Indenture Act, the
Trustee shall, within 60 days after each May 15th following the date of the
Issue Date, deliver to Holders a brief report, dated as of such May 15th, which
complies with the provisions of such Section 313(a).


(b)           If required by law,
a copy of each such report shall, at the time of such transmission to Holders,
be filed by the Trustee with each stock exchange, if any, upon which the Notes
are listed, with the Commission and with the Company.  The Company will notify the Trustee when the
Notes are listed on any stock exchange and of any delisting thereof.


ARTICLE 10

COVENANTS


SECTION 10.01  Payment of Principal and Interest.


The Company
covenants and agrees that it shall duly and punctually pay the principal of and
interest on the Notes in accordance with the terms of the Notes and this
Indenture. The Company shall deposit or cause to be deposited with the Trustee
or its nominee, no later than 11:00 a.m., New York City time, on the Maturity
Date of the Notes or no later than 11:00 a.m., New York City time, on the due
date for any installment of interest, all payments so due, which payments shall
be in immediately available funds on the date of such Maturity Date or due
date, as the case may be.


SECTION 10.02  Maintenance of Offices or Agencies.


The Company shall
maintain in an office or agency where the Notes may be surrendered for
registration of transfer or exchange or for presentation for payment or for
conversion or repurchase and where notices and demands to or upon the Company
in respect of the Notes and this Indenture may be served. The Company shall
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 at
any time and from time to time vary or terminate the appointment of any such
agent or appoint any additional agents for any or all of such purposes; provided,
however, that until all of the Notes have been delivered to the
Trustee for cancellation, or moneys sufficient to pay the principal of and



 65
 









interest on the Notes
have been made available for payment and either paid or returned to the Company
pursuant to the provisions of Section 10.05, the Company shall maintain an
office or agency where Notes may be presented or surrendered for payment and
conversion, where Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company shall give prompt written
notice to the Trustee, and notice to the Holders in accordance with Section
1.07, of the appointment or termination of any such agents and of the location
and any change in the location of any such office or agency.


The Company hereby
initially designates the Trustee as Paying Agent, Registrar, and Conversion
Agent, and the Corporate Trust Office of the Trustee as the office or agency of
the Company for each of the aforesaid purposes.


SECTION 10.03  Existence.


Subject to Section
7.01, the Company shall do or cause to be done all things necessary to preserve
and keep in full force and effect its existence, rights (charter and statutory)
and franchises; provided, however, that the Company shall not be
required to preserve any such right or franchise 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 materially adverse to
the interests of any Holders.


SECTION 10.04  Statement by Officers as to Default.


The Company shall
deliver to the Trustee, within 120 calendar days after the end of each fiscal
year, an Officers’ Certificate indicating whether the signing officers know of
any Default that occurred during the previous fiscal year.  The Company shall also notify the Trustee,
within 30 calendar days thereof, of any events that would constitute a Default,
the status of such events and what action the Company has taken, is taking or
proposes to take with respect thereto.


Any notice
required to be given under this Section 10.04 shall be delivered to the Trustee
at its Corporate Trust Office.


SECTION 10.05  Money for Note Payments to Be Held in Trust.


If the Company
shall at any time act as its own Paying Agent, it will, on or before each due
date of the principal of or interest on any of the Notes, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify
the Trustee of its action or failure so to act.



 66
 









Whenever the
Company shall have one or more Paying Agents, it will, prior to each due date
of the principal of or interest on any Notes, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.


The Company will
cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section 10.05, that such Paying Agent will
(i) comply with the provisions of the Trust Indenture Act applicable to it as a
Paying Agent and (ii) during the continuance of any default by the Company (or
any other obligor upon the Notes) in the making of any payment in respect of
the Notes, upon the written request of the Trustee, forthwith pay to the
Trustee all sums held in trust by such Paying Agent as such.


The Company may at
any time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.


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


SECTION 10.06  Reports by Company


(a)           The Company shall
file any documents that it is required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act with the Trustee within 15
calendar days after the same are required to be filed with the Commission.  Documents filed by the Company with the
Commission via the EDGAR system will be deemed filed with the Trustee as of the
time such documents are filed via EDGAR.


(b)           Notwithstanding
anything to the contrary in this Section, the Company, to the extent permitted
under the Trust Indenture Act, shall not be required to deliver to the Trustee
or the Holders any material for which the Company has sought and received
confidential treatment by the Commission.



 67
 









(c)           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 Officers’
Certificates).


SECTION 10.07  Delivery of Certain Information


At any time when
the Company is not subject to Section 13 or 15(d) of the Exchange Act,
upon the request of a Holder of a Restricted Security or the holder of shares
of Common Stock issued upon conversion thereof, the Company will promptly
furnish or cause to be furnished Rule 144A Information (as defined below)
to such Holder of Restricted Securities or such holder of shares of Common
Stock issued upon conversion of Restricted Securities, or to a prospective
purchaser of any such security designated by any such Holder or holder, as the
case may be, to the extent required to permit compliance by such Holder or
holder with Rule 144A under the Securities Act (or any successor provision
thereto) in connection with the resale of any such security.  “Rule 144A Information” shall be such information
as is specified pursuant to Rule 144A(d)(4) under the Securities Act (or
any successor provision thereto).


SECTION 10.08  Registration Rights


The Company agrees
that the Holders from time to time of Registrable Securities (as defined below)
are entitled to the benefits of the Registration Rights Agreement.


Whenever in this
Indenture there is mentioned, in any context, the payment of interest on, or in
respect of, any Note, such mention shall be deemed to include mention of the
payment of Additional Interest to the extent provided for in the Registration
Rights Agreement, and express mention of the payment of Additional Interest (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Interest in those provisions hereof where such express mention is
not made.


By its acceptance
thereof, the Holder of Registrable Securities will have agreed to be bound by
the terms of the Registration Rights Agreement relating to the Registrable
Securities which are the subject of such election.


If Additional
Interest is payable under the Registration Rights Agreement, the Company shall
deliver to the Trustee a certificate to that effect stating (i) the amount
of Additional Interest that is payable and (ii) the date on which
Additional Interest is payable.  Unless
and until a Responsible Officer of the Trustee receives at the Corporate Trust
Office such a certificate, the Trustee may assume without inquiry that no
Additional Interest is payable.  If
Additional Interest has been paid



 68
 









by the Company directly
to the persons entitled to them, the Company shall deliver to the Trustee a
certificate setting forth the particulars of such payment.


ARTICLE 11

REPURCHASE OF NOTES


SECTION 11.01  Right to Require Repurchase Upon a Fundamental Change.


(a)           If a Fundamental
Change occurs at any time, then each Holder shall have the right, at such
Holder’s option, to require the Company to repurchase all of such Holder’s
Notes or any portion thereof that is an integral multiple of $1,000 principal
amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days and
not more than 35 calendar days after the date of the Fundamental Change
Repurchase Right Notice at a repurchase price equal to 100% of the principal
amount thereof, together with accrued and unpaid interest thereon to, but
excluding, the Fundamental Change Repurchase Date, unless such Fundamental
Change Repurchase Date falls after a Regular Record Date and on or prior to the
corresponding Interest Payment Date, in which case the Company shall pay the
full amount of accrued and unpaid interest payable on such Interest Payment
Date to the holder of record at the close of business on the corresponding
Regular Record Date (the “Fundamental
Change Repurchase Price”).


Notwithstanding
the foregoing, Holders shall not have the right to require the Company to repurchase
any Notes under this Section 11.01 based on a Fundamental Change described in
clause (1), (2) or (3) of the definition thereof (and the Company shall not be
required to deliver the Fundamental Change Repurchase Right Notice incidental
thereto) if at least 90% of the consideration paid for the Company’s Common
Stock (excluding cash payments for fractional shares and cash payments made
pursuant to dissenters’ appraisal rights and cash dividends) in a merger or
consolidation or such other transaction otherwise constituting a Fundamental
Change described in clause (2) of the definition thereof consists of shares of
common stock or American Depositary Receipts in respect of shares of common
stock traded on the New York Stock Exchange, the American Stock Exchange, the
NASDAQ Global Market or the NASDAQ Global Select Market (or any of their
respective successors) (or will be so traded immediately following the
completion of the merger or consolidation or such other transaction) and, as a
result of the completion of such merger or consolidation or such other
transaction, the Notes become convertible into such shares of such shares of
such common stock or such American Depositary Receipts (or, if the Company
irrevocably elects Net Share Settlement, into cash (in respect of the Principal
Portion) and, if applicable, such shares of such common stock or such American
Depositary Receipts.



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To exercise the
repurchase right under this Section 11.01, a Holder must deliver, on or before
the Business Day prior to the Fundamental Change Repurchase Date:


(i)            a notice with respect to such
Holder’s exercise of the repurchase right (the “Fundamental Change Repurchase
Notice”) to the Trustee (or
other Paying Agent appointed by the Company); and


(ii)           the Notes to be repurchased by
(a) in the case of Notes held in global form, book-entry transfer of the
Notes to the Trustee (or other Paying Agent appointed by the Company) in
compliance with all Applicable Procedures and (b) in the case of Notes
held in certificated form, delivery of such Notes to the Trustee (or other
Paying Agent appointed by the Company) duly endorsed for transfer, together
with the form entitled “Form of Fundamental Change Repurchase Notice” on the
reverse side of the Notes duly completed, either such delivery being a
condition to receipt by the Holder of the Fundamental Change Repurchase Price
therefor; provided that such
Fundamental Change Repurchase Price shall be so paid pursuant to this Section
11.01 only if the Note so delivered to the Trustee (or other Paying Agent
appointed by the Company) shall conform in all respects to the description
thereof in the related Fundamental Change Repurchase Notice.


The Fundamental
Change Repurchase Notice shall state:


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


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


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


Any purchase by
the Company contemplated pursuant to the provisions of this Section 11.01 shall
be consummated by the delivery of the consideration to be received by the
Holder promptly following the later of the Fundamental Change Repurchase Date
and the time of the book-entry transfer or delivery of the Note.


The Trustee (or
other Paying Agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Fundamental Change Repurchase Notice or written notice
of withdrawal thereof in accordance with the provisions of subsection (c) of
this Section 11.01.



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Any Note that is
to be repurchased only in part shall be surrendered to the Trustee (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and make
available for delivery to the Holder of such Note without service charge, a new
Note or Notes, containing identical terms and conditions, each in an authorized
denomination in aggregate principal amount equal to and in exchange for the
unrepurchased portion of the principal of the Note so surrendered.


(b)           After the occurrence
of a Fundamental Change, but on or before the 10th calendar day after such
occurrence, the Company shall provide to all Holders of record of the Notes and
the Trustee and Paying Agent a notice (the “Fundamental Change Repurchase Right Notice”) on the occurrence of such Fundamental
Change and of the repurchase right, if any, at the option of the Holders
arising as a result thereof.


Each Fundamental
Change Repurchase Right Notice shall specify (if applicable):


(i)            the events causing the Fundamental
Change;


(ii)           the date of the Fundamental Change;


(iii)          the last date on which a Holder may
exercise the repurchase right, if applicable;


(iv)          the Fundamental Change Repurchase
Price, if applicable;


(v)           the Fundamental Change Repurchase
Date, if applicable;


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


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


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


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



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


(xi)           the procedures that Holders must
follow to require the Company to repurchase their Notes, if applicable.


No failure of the
Company to give the foregoing notices and no defect therein shall limit the
Holders’ repurchase rights or affect the validity of the proceedings for the
repurchase of the Notes pursuant to this Section 11.01.


(c)           A Fundamental Change
Repurchase Notice may be withdrawn by means of a written notice of withdrawal
delivered to the Paying Agent in accordance with the Fundamental Change
Repurchase Right Notice at any time prior to the close of business on the
Business Day prior to the Fundamental Change Repurchase Date, specifying:


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


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


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


provided, however, that if the Notes are not in
certificated form, the notice must comply with the Applicable Procedures.


(d)           On or prior to 11:00
a.m., New York City time, on the Business Day on the Fundamental Change
Repurchase Date, the Company shall deposit with the Trustee (or other Paying
Agent appointed by the Company or if the Company is acting as its own Paying
Agent, set aside, segregate and hold in trust as provided in Section 10.03) an
amount of money sufficient to repurchase on the Fundamental Change Repurchase
Date all of the Notes to be repurchased on such date at the Fundamental Change
Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or
other Paying Agent appointed by the Company), payment for Notes surrendered for
repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time
shall be made promptly after the later of (x) the Fundamental Change Repurchase
Date with respect to such Note (provided
the Holder has satisfied the conditions to the payment of the Fundamental
Change Repurchase Price in this Section 11.01), and (y) the time of book-entry
transfer or the delivery of such Note to the Trustee (or other Paying Agent
appointed by the Company) by the Holder thereof in the manner required by this
Section 11.01. The Trustee shall, promptly after such payment and upon written
demand by the



 72
 









Company,
return to the Company any funds in excess of the Fundamental Change Repurchase
Price.


(e)           If the Trustee (or
other Paying Agent appointed by the Company) holds money sufficient to
repurchase on the Fundamental Change Repurchase Date all the Notes or portions
thereof that are to be purchased as of the Business Day following the
Fundamental Change Repurchase Date, then on and after the Fundamental Change
Repurchase Date (i) such Notes shall cease to be outstanding, (ii) interest
(including Additional Interest) shall cease to accrue on such Notes, and (iii)
all other rights of the Holders of such Notes shall 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 Fundamental
Change Repurchase Price, the right to receive previously accrued and unpaid
interest and the right pursuant to Section 11.01(a) to receive interest on the
related Interest Payment Date where the Fundamental Change Repurchase Date
falls between a Regular Record Date and the related Interest Payment Date, in
each case upon delivery of the Notes.


(f)            Notwithstanding
anything to the contrary in this Article XI, no Notes may be repurchased
at the option of Holders upon a Fundamental Change if the principal amount of
the Notes has been accelerated and such acceleration has not be rescinded on or
prior to the related Fundamental Change Repurchase Date.


(g)           In connection with
any repurchase of Notes pursuant to this Article XI, the Company shall
comply with the provisions of any tender offer rules under the Exchange Act
that may then be applicable and otherwise comply with all applicable federal
and state securities laws.


ARTICLE 12

CONVERSION OF NOTES


SECTION 12.01  Conversion Privilege and Conversion Rate.


(a)           Subject to the
conditions described in clause (i), (ii), and (iii) below, and upon compliance
with the provisions of this Article 12, a Holder shall have the right, at such
Holder’s option, to convert all or any portion (if the portion to be converted
is $1,000 principal amount or an integral multiple thereof) of any Notes at any
time prior to the close of business on the Scheduled Trading Day immediately
preceding April 15, 2014, at a rate (the “Conversion Rate”) of
16.3752 shares of Common Stock (subject to adjustment by the Company as
provided in Section 12.04) per $1,000 principal amount of the Notes under the
circumstances and during the periods set forth below. On and after April 15,
2014 regardless of the conditions described in clause (i), (ii) and (ii) below,
and upon compliance with the provisions of this Article 12, a Holder shall have
the right, at such Holder’s option, to convert all or any portion (if the
portion to be converted is $1,000 principal amount or an integral multiple
thereof) of any Notes at the



 73
 









applicable
Conversion Rate at any time prior to the close of business on the Scheduled
Trading Day immediately preceding the Maturity Date.


(i)            The Notes shall be convertible prior
to April 15, 2014, during the five Business Day period immediately after
any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000
principal amount of the Notes for each Trading Day of such Measurement Period
was less than 97% of the product of the Last Reported Sale Price of the Common
Stock on such Trading Day and the Conversion Rate in effect on such Trading Day
(the “Trading Price Condition”) determined as set forth below.  The Trustee will have no obligation to
determine the Trading Price of the Notes unless requested by the Company, in
writing, and the Company shall have no obligation to make such a request unless
a Holder provides the Company with reasonable evidence that the Trading Price
per $1,000 principal amount of the Notes would be less than 97% of the product
of (a) the Last Reported Sale Price at such time and (b) the then-applicable
Conversion Rate of the Notes, at which time the Company shall instruct the
Trustee to determine the Trading Price of the Notes beginning on the next
Trading Day and on each successive Trading Day until the date on which the
Trading Price per Note is greater than or equal to 97% of the product of (a)
the Last Reported Sale Price and (b) the then-applicable Conversion Rate of the
Notes (as provided to the Trustee by the Company on each such date). If the
Trading Price Condition has been met in accordance with the foregoing, the
Company shall so notify the Holders of the Notes.  If, at any time after the Trading Price
Condition has been met in accordance with the foregoing, the Trading Price per
$1,000 principal amount of the Notes is greater than 97% of the product of (a)
the then-applicable Conversion Rate of the Notes and (b) the Last Reported Sale
Price on such date, the Company shall so notify the Holders of the Notes, and
the Trustee shall have no further obligation to determine the Trading Price of
the Notes unless requested by the Company to do so again in writing pursuant to
this Section 12.01(a)(i).  Furthermore,
if the Company does not, when obligated to do so pursuant to this clause (i),
instruct the Trustee to determine the Trading Price of the Notes, or if the
Company so instructs the Trustee, but the Trustee does not make such
determination, then the Trading Price per $1,000 principal amount of the Notes
shall be deemed to be less than 97% of the product of (a) the then-applicable
Conversion Rate of the Notes and (b) the Last Reported Sale Price on such date.


(ii)           The Notes shall be convertible prior
to April 15, 2014, during any calendar quarter after the calendar quarter
ending September 30, 2007 (and only during such calendar quarter), if the
Last Reported Sale Price of the Common Stock for twenty (20) or more Trading
Days in a period of thirty (30) consecutive Trading Days ending on the last
Trading Day of the immediately preceding calendar quarter



 74
 









exceeds 130% of the
applicable Conversion Price in effect on the last Trading Day of the
immediately preceding calendar quarter.


(iii)          The Notes shall be convertible prior
to April 15, 2014, as provided in subsections (b), (c) and (d) of this Section
12.01.


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


(i)            distribute to all or substantially
all holders of Common Stock any rights or warrants entitling them, for a period
of not more than 45 calendar days after the record date for such distribution,
to subscribe for or purchase Common Stock at a price per share less than the
Last Reported Sale Price of the Common Stock on the Trading Day immediately
preceding the declaration date of such distribution; or


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


then, in either case,
Holders may surrender the Notes for conversion at any time on and after the
date that the Company provides the notice to such Holders referred to in the
next sentence until the earlier of 5:00 p.m., New York City time, on the
Business Day immediately preceding the Ex-Date for such distribution or the
date the Company announces that such distribution will not take place, even if
the Notes are not otherwise convertible at such time. The Company shall notify
Holders with respect to any distribution referred to in either clause (i) or
clause (ii) above and of the resulting conversion right no later than the 25th
Scheduled Trading Day prior to the Ex-Date for such distribution. A Holder may
not exercise this right if such Holder is permitted to participate (as a result
of holding the Notes, and at the same time as holders of the Common Stock
participate) in any distribution referred to in clause (i) or clause (ii) above
as if such Holder held a number of shares of Common Stock equal to the
then-applicable Conversion Rate, multiplied by the principal amount (expressed
in thousands) of Notes held by such Holder, without having to convert its
Notes.


(c)           If the Company is a
party to a combination, merger, recapitalization, reclassification, binding
share exchange or other similar transaction or sale or conveyance of all or
substantially all of its property and assets, in each case pursuant to which
the Common Stock would be converted into cash, securities and/or other property
and that does not also constitute a Fundamental Change, then the Holders shall
have the right to convert Notes at any time beginning 25 Scheduled Trading Days
prior to the date announced by the Company as the anticipated effective date of
such transaction and ending on the 35th Scheduled Trading Day after the date
that is the effective date of such



 75
 









transaction.
The Company shall notify Holders at least 25 Scheduled Trading Days prior to
the anticipated effective date of such transaction. The Board of Directors
shall determine the anticipated effective date of the transaction, and such
determination shall be conclusive and binding on the Holders.


(d)           If the Company is a
party to any transaction or event described in clause (2) of the definition of
Fundamental Change, a Holder may surrender Notes for conversion at any time,
after the Company gives the notice referred to in the last sentence of this
Section 12.01(d), from and after the 25th Scheduled Trading Day prior to the
anticipated Effective Date of such transaction or event until (i) the related
Fundamental Change Repurchase Date or (ii) if there is no such Fundamental
Change Repurchase Date, 35 Trading Days following the Effective Date of such
transaction or event.  If an event
described in clause (1), (3), (4) or (5) of the definition of Fundamental
Change occurs, a Holder may surrender Notes for conversion at any time, after
the Company gives the notice referred to in the last sentence in this Section
12.01(d), from and after the Effective Date of such event until (i) the
Fundamental Change Repurchase Date corresponding to such event or (ii) if there
is no such Fundamental Change Repurchase Date, 35 Trading Days following the
Effective Date of such event.  The
Company shall notify, in the manner provided for in Section 1.07, each of the
Holders and the Trustee of the Fundamental Change (i) no later than 25
Scheduled Trading Days prior to the anticipated Effective Date with respect to
a transaction or event described in the first sentence above or (ii) on the
Effective Date with respect to an event described in the second sentence of
this Section 12.01(d).


(e)           If a Holder elects
to convert Notes in connection with a Make-Whole Fundamental Change that occurs
prior to the Maturity Date, the Conversion Rate applicable to each $1,000
principal amount of Notes so converted shall be increased by an additional
number of shares of Common Stock (the “Additional Shares”) as
described below; provided, however that no increase shall be made in
the case of a transaction constituting a Fundamental Change described in clause
(2) in the definition thereof if at least 90% of the consideration for the
Company’s Common Stock (excluding cash payments for fractional shares and cash
payments made pursuant to dissenters’ appraisal rights) in such transaction
consists of shares of common stock or American Depositary Receipts in respect
of shares of common stock traded on the New York Stock Exchange, the American
Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market (or
any of their respective successors) or another United States national
securities exchange (or that will be so traded or quoted immediately following
the transaction) and as a result of such transaction or transactions the Notes
become convertible into such shares of such common stock or such American
Depositary Receipts (or, if the Company has irrevocably elected Net Share
Settlement, cash in respect of the Principal Portion and, if applicable, such
shares of such common stock or such American Depositary Receipts). Settlement
of Notes tendered for conversion to which Additional



 76
 









Shares
shall be added to the Conversion Rate as provided in this subsection shall be
settled pursuant to Section 12.02(d). For purposes of this subsection (e), a
conversion shall be deemed to be “in connection with”
a Make-Whole Fundamental Change to the extent that a Holder surrenders Notes
for conversion (i) at any time on or after the 25th Scheduled Trading Day prior
to the date announced by the Company as the anticipated Effective Date of a
Fundamental Change described in clause (2) of the definition thereof or
(ii) on or after the Effective Date of a Fundamental Change described in
clause (1) or (4) of such definition, in each case until the related
Fundamental Change Repurchase Date for such Fundamental Change or, if there is
no such Fundamental Change Repurchase Date, until 25 Scheduled Trading Days
following such Effective Date.


(i)            The number of Additional Shares
shall be determined by the Company by reference to the table attached as Schedule A
hereto, based on the date on which the Make-Whole Fundamental Change occurs or
becomes effective (the “Effective
Date”), and the Stock Price;
provided that if the actual Stock
Price is between two Stock Price amounts in the table or the Effective Date is
between two Effective Dates in the table, the number of Additional Shares shall
be determined by a straight-line interpolation between the number of Additional
Shares set forth for the next higher and next lower Stock Price amounts and the
two nearest Effective Dates, as applicable, based on a 365-day year; provided  further
that if (1) the Stock Price is greater than $200.00 per share of Common Stock
(subject to adjustment in accordance with clause (ii) below), no Additional
Shares shall be added to the Conversion Rate, and (2) the Stock Price is less
than $43.62 per share (subject to adjustment in accordance with clause (ii)
below), no Additional Shares shall be added to the Conversion Rate.
Notwithstanding the foregoing, in no event shall the Conversion Rate exceed
22.9252 per $1,000 principal amount of Notes (subject to adjustment in the same
manner as set forth in Section 12.04).


(ii)           The Stock Prices set forth in the
first column of the table in Schedule A hereto shall be adjusted by the
Company as of any date on which the Conversion Rate of the Notes is adjusted
(except pursuant to this Section 12.01(e)). The adjusted Stock Prices shall
equal the Stock Prices applicable immediately prior to such adjustment,
multiplied by a fraction, the numerator of which is the Conversion Rate in
effect immediately prior to the adjustment giving rise to the Stock Price
adjustment and the denominator of which is the Conversion Rate as so adjusted.
The number of Additional Shares within the table shall be adjusted in the same
manner as the Conversion Rate as set forth in Section 12.04 (other than by
operation of an adjustment to the Conversion Rate by adding Additional Shares).



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SECTION 12.02  Exercise of Conversion Privilege.


(a)           Subject to
subsection (b) of this Section 12.02 and unless the Company has irrevocably
elected Net Share Settlement pursuant to the paragraph below, the Company shall
satisfy the Conversion Obligation with respect to each $1,000 principal amount
of Notes tendered for conversion in shares of fully paid Common Stock by
delivering on the third VWAP Trading Day immediately following the relevant
Conversion Date, shares of Common Stock equal to (i) (A) the aggregate
principal amount of Notes to be converted divided by (B) 1,000, multiplied
by (ii) the Conversion Rate in effect on the relevant Conversion Date provided that the Company shall deliver cash in lieu of
fractional shares of Common Stock as provided in Section 12.03.


At any time on or prior to the 25th Scheduled Trading Day prior to the
Maturity Date, the Company in its sole discretion, without the consent of any
Holders, may irrevocably elect to satisfy its Conversion Obligation in the
manner specified in this paragraph with respect to the Notes to be converted
after the date of such election (such settlement being referred to as the “Net Share Settlement”).  If the Company irrevocably elects Net Share
Settlement, the Company will satisfy its Conversion Obligation with respect to
each $1,000 principal amount of Notes tendered for conversion in cash and
shares of fully paid Common Stock, if applicable, by delivering, on or before
the third VWAP Trading Day immediately following the last VWAP Trading Day of
the related Observation Period, cash and shares of Common Stock, if any, equal
to the sum of the Daily Settlement Amounts for each of the 20 VWAP Trading Days
during the related Observation Period. 
The Daily Settlement Amounts shall be determined by the Company promptly
following the last VWAP Trading Day of the Observation Period.  Upon making a Net Share Settlement election,
the Company will promptly (x) issue a Press Release and use its reasonable
efforts to post such information on its website or otherwise publicly disclose
this information and (y) provide written notice to the Holders of the
Notes in a manner contemplated by the Indenture.  At any time prior to making such election,
the Company may irrevocably renounce this right to elect Net Share Settlement
at any time prior to the 25th Scheduled Trading Day preceding the Maturity
Date.


(b)           Notwithstanding
subsection (a) of this Section 12.02, the Company shall satisfy the Conversion
Obligation with respect to each $1,000 principal amount of Notes tendered for
conversion to which Additional Shares shall be added to the Conversion Rate as
set forth in Section 12.01(e) pursuant to this clause (b).


(i)            If the Conversion Date (or,
following the Company’s election of Net Share Settlement, if available, the
last VWAP Trading Day of the applicable Observation Period) related to Notes
surrendered for conversion in connection the Make-Whole Fundamental Change is
prior to the third Scheduled Trading Day preceding the Effective Date of the
Make-Whole Fundamental Change, the Company shall satisfy the related



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Conversion Obligation with respect to each
$1,000 principal amount of Notes tendered for conversion as described in this
subsection (b) by delivering a number of shares of Common Stock equal to the
Conversion Rate for each $1,000 principal amount of Notes (or, following the
Company’s election of Net Share Settlement, if available, the amount of cash
and shares of Common Stock, if any, based on the Conversion Rate then in
effect), in each case without regard to the number of Additional Shares to be
added to the Conversion Rate pursuant to Section 12.01(e) on the third VWAP
Trading Day immediately following the related Conversion Date (or, following
the Company’s election of Net Share Settlement, if available, the last VWAP
Trading Day of the applicable Observation Period). As soon as practicable
following the Effective Date of the Make-Whole Fundamental Change, the Company
shall deliver the increase in such amount of common stock or of Reference
Property in lieu of shares of Common Stock, if any, as if the Conversion Rate
had been increased by such number of Additional Shares on the applicable
Conversion Date (or, following the Company’s election of Net Share Settlement,
if available, during the related Observation Period and based upon the related
Daily VWAP prices during such Observation Period). If, following the Company’s
election of Net Share Settlement, such increased amount results in an increase
to the amount of cash to be paid to Holders, the Company shall pay such
increase in cash, and if such increased amount results in an increase to the
number of shares of Common Stock, the Company shall deliver such increase by
delivering common stock or Reference Property based on such increased number of
shares.


(ii)           If the Conversion Date (or, following
the Company’s election of Net Share Settlement, if available, the last VWAP
Trading Day of the applicable Observation Period) related to Notes surrendered
for conversion is on or following the third Scheduled Trading Day preceding the
Effective Date of such Make-Whole Fundamental Change, the Company shall satisfy
the Conversion Obligation with respect to each $1,000 principal amount of Notes
tendered for conversion as described in Section 12.01(b) (based on the Conversion
Rate as increased by the Additional Shares pursuant to Section 12.01(e)) on the
later to occur of (1) the Effective Date of the Make-Whole Fundamental Change
and (2) the third VWAP Trading Day immediately following the Conversion Date
(or, following the Company’s election of Net Share Settlement, if available,
the third VWAP Trading Day immediately following the last VWAP Trading Day of
the applicable Observation Period).


(c)           Before any Holder of
a Note shall be entitled to convert the same as set forth above, such holder
shall (1) in the case of a Global Note, comply with the Applicable Procedures
in effect at that time and, if required, pay funds equal to interest payable on
the next Interest Payment Date to which such Holder is not entitled as set forth
in subsection (i) of this Section 12.02 and, if required, pay all



 79
 









taxes or
duties, if any, and (2) in the case of a Note issued in certificated form,
(A) complete and manually sign and deliver an irrevocable written notice
to the Conversion Agent in the form set forth under Section 2.03 (or a
facsimile thereof) (a “Notice of Conversion”)
at the office of the Conversion Agent and shall state in writing therein the
principal amount of Notes to be converted and the name or names (with
addresses) in which such Holder wishes the certificate or certificates for any
shares of Common Stock, if any, to be delivered upon settlement of the
Conversion Obligation to be registered, (B) surrender such Notes, duly endorsed
to the Company or in blank (and accompanied by appropriate endorsement and
transfer documents), at the office of the Conversion Agent, (C) if
required, pay funds equal to interest payable on the next Interest Payment Date
to which such Holder is not entitled as set forth in subsection (i) of this
Section 12.02, and (D) if required, pay all taxes or duties, if any.  As used herein, “Conversion Date” shall mean the date that the Holder has
complied with the requirements set forth in this subsection (c).


No Notice of Conversion with respect to any Notes may
be tendered by a Holder thereof if such Holder has also tendered a Fundamental
Change Repurchase Notice and not validly withdrawn such Fundamental Change
Repurchase Notice in accordance with the applicable provisions of Section
11.01.


If more than one Note shall be surrendered for
conversion at one time by the same Holder, the Conversion Obligation with
respect to such Notes, if any, that shall be payable upon conversion shall be
computed on the basis of the aggregate principal amount of the Notes (or specified
portions thereof to the extent permitted thereby) so surrendered.


(d)           Delivery of the
amounts owing in satisfaction of the Conversion Obligation shall be made by the
Company in no event later than the date specified in subsection (a) of this
Section 12.02, except to the extent specified in subsection (b) of this Section
12.02. The Company shall make such delivery by issuing, or causing to be
issued, and delivering to such Holder, or such Holder’s nominee or nominees,
certificates or a book-entry transfer through the Depositary for the number of
full shares of Common Stock, if any, to which such holder shall be entitled as
part of such Conversion Obligation (together with any cash in lieu of
fractional shares) (or, if the Company has irrevocably elected Net Share
Settlement, by paying the cash amount owed to the Holder of the Note
surrendered for conversion, or such Holder’s nominee or nominees, and, if
applicable, by issuing, or causing to be issued, and delivering to such Holder,
or such Holder’s nominee or nominees, certificates or a book-entry transfer
through the Depositary for the number of full shares of Common Stock, if any,
to which such holder shall be entitled as part of such Conversion Obligation
(together with any cash in lieu of fractional shares)).


(e)           In case any Note
shall be surrendered for partial conversion, the Company shall execute and the
Trustee shall, as provided in a Company Order, authenticate and deliver to or
upon the written order of the Holder of the Note so



 80
 









surrendered,
without charge to such Holder, a new Note or Notes in authorized denominations
in an aggregate principal amount equal to the unconverted portion of the
surrendered Notes.


(f)            If a Holder submits
a Note for conversion, the Company shall pay all documentary, stamp or similar
issue or transfer tax due, if any, which may be imposed by the United States or
any political subdivision thereof or taxing authority thereof or therein with
respect to the issuance of shares of Common Stock, if any, upon the conversion.
However, the Holder shall pay any such tax which is due because the Holder
requests any shares of Common Stock to be issued in a name other than the
Holder’s name. The Company may refuse to deliver the certificates representing
the shares of Common Stock being issued in a name other than the Holder’s name
until the Company receives a sum sufficient to pay any tax which will be due
because the shares are to be issued in a name other than the Holder’s name.
Nothing herein shall preclude any tax withholding required by law or
regulations.


(g)           Except as provided
in Section 12.04, no adjustment shall be made for dividends on any shares
issued upon the conversion of any Note as provided in this Article 12.


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


(i)            Upon conversion, a
Holder shall not receive any separate cash payment for accrued and unpaid
interest except as set forth below. The Company’s settlement of the Conversion
Obligation as described above shall be deemed to satisfy its obligation to pay
the principal amount of the Note and accrued and unpaid interest to, but not
including, the Conversion Date. As a result, accrued and unpaid interest
(including Additional Interest, if any) to, but not including, the Conversion
Date shall be deemed to be paid in full rather than cancelled, extinguished or
forfeited. Notwithstanding the preceding sentence, if Notes are converted after
5:00 p.m., New York City time, on a Regular Record Date, Holders of such Notes as
of 5:00 p.m., New York City time, on such Regular Record Date shall receive the
interest payable on such Notes on the corresponding Interest Payment Date
notwithstanding the conversion. Notes surrendered for conversion during the
period from 5:00 p.m., New York City time, on any Regular Record Date to 9:00
a.m., New York City time, on the corresponding Interest Payment Date must be
accompanied by payment of an amount in cash equal to the interest payable, on
such Interest Payment Date, on the Notes so converted; provided, however, that no such payment need be made (i) if the
Company has specified a Fundamental Change Purchase Date that is after a
Regular Record Date and on or prior to the corresponding Interest Payment Date;
(ii) to the extent of any overdue interest existing at the time of conversion



 81
 









with respect
to such Note; or (iii) with respect to any Conversion Date that occurs during
the period from the close of business on the Regular Record Date immediately
preceding the Maturity Date to the Maturity Date. Except as described above, no
payment or adjustment shall be made for accrued interest on converted Notes.


SECTION 12.03  Fractions of Shares.


No fractional shares of Common Stock shall be issued
upon conversion of any Note or Notes. If more than one Note shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Notes (or specified portions thereof)
so surrendered. Instead of any fractional share of Common Stock that would
otherwise be issuable upon conversion of any Note or Notes (or specified
portions thereof), the Company shall calculate and pay a cash adjustment in
respect of such fraction (calculated to the nearest 1/100th of a share) in an
amount equal to the same fraction of the Last Reported Sale Price on the
relevant Conversion Date (or if the Conversion Date is not a Trading Day, the
next following Trading Day) (or if the Company has irrevocably elected Net
Share Settlement, the Daily VWAP of the Common Stock on the last VWAP Trading
Day of the relevant Observation Period).


SECTION 12.04  Adjustment of Conversion Rate.


The Conversion Rate shall be adjusted from time to
time by the Company as follows; provided that
the Company shall not make any adjustments to the Conversion Rate if Holders of
the Notes participate (as a result of holding the Notes, and at the same time
as holders of the Common Stock participate) in any the transactions described
below as if such Holders held a number of shares of Common Stock equal to the
then-applicable Conversion Rate, multiplied by the principal amount (expressed
in thousands) of Notes held by such Holders, without having to convert their
Notes:


(a)           In case the Company
shall issue shares of Common Stock as a dividend or distribution on shares of
Common Stock, or shall effect a share split or share combination, the
Conversion Rate shall be adjusted based on the following formula:


	
  CR’ = CR0 ×

  	
  OS’

  
	
   

  	
  OS0

  



 


 


where,


CR0 = the Conversion
Rate in effect immediately prior to the record date for such dividend or
distribution or immediately prior to the effective date of such share split or
combination, as the case may be;



 82
 









CR’ = the Conversion Rate in effect immediately after
the record date for such dividend or distribution or immediately after the
effective date of such share split or combination, as the case may be;


OS0 = the number of
shares of Common Stock outstanding immediately prior to the record date for
such dividend or distribution or immediately prior to the effective date of
such share split or combination, as the case may be; and


OS’ = the number of shares of Common Stock outstanding
as of the record date for such dividend or distribution immediately after
giving effect to such dividend or distribution or immediately after the
effective date of such share split or combination, as the case may be.


Such adjustment shall become effective immediately
prior to the opening of business on the record date fixed for such dividend or
distribution, or the effective date for such share split or share combination.
If any dividend or distribution of the type described in this Section 12.04(a)
is declared but not so paid or made, or the outstanding shares of Common Stock
are not split or combined, as the case may be, the Conversion Rate shall be
immediately readjusted, effective as of the date the Board of Directors
determines not to pay such dividend or distribution, or split or combine the
outstanding shares of Common Stock, as the case may be, to the Conversion Rate
that would then be in effect if such dividend, distribution, share split or
share combination had not been declared.


(b)           In case the Company
shall distribute to all or substantially all holders of its outstanding shares
of Common Stock rights or warrants entitling them (for a period expiring not
more than 45 calendar days after the record date for such distribution) to
subscribe for or purchase shares of Common Stock at a price per share less than
the Last Reported Sale Price of the Common Stock on the Trading Day immediately
preceding the declaration date of such distribution, the Conversion Rate shall
be adjusted based on the following formula:


	
  CR’ = CR0 ×

  	
   OS0 + X

  
	
   

  	
   OS0 + Y

  



 


where,


CR0 = the Conversion
Rate in effect immediately prior to the record date for such distribution;


CR’ = the Conversion Rate in effect immediately after
the record date for such distribution;


OS0 = the number of
shares of Common Stock outstanding immediately prior to the record date for
such distribution;



 83
 









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


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


Such adjustment shall be successively made whenever
any such rights or warrants are distributed and shall become effective
immediately prior to the opening of business on the record date for such
distribution.  To the extent that shares
of the Common Stock are not delivered after the expiration of such rights or
warrants, the Conversion Rate shall be readjusted to the Conversion Rate that
would then be in effect had the adjustments made upon the issuance of such
rights 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 record date for such distribution 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 Last Reported Sale 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 the Company
shall, by dividend or otherwise, distribute to all or substantially all holders
of its Common Stock shares of any class of Capital Stock of the Company,
evidences of its Indebtedness or other assets or property of the Company
(excluding dividends and distributions covered by subsection (a), (b) or (d) of
this Section 12.04 and distributions described below in this subsection (c)
with respect to Spin-Offs) (any of such shares of Capital Stock, Indebtedness,
or other asset or property hereinafter in this subsection (c) called the “Distributed Property”), then, in each such
case the Conversion Rate shall be adjusted based on the following formula:


	
  CR’ = CR0 ×

  	
   SP0

  
	
   

  	
   SP0 — FMV

  



 


where,


CR0 = the Conversion
Rate in effect immediately prior to the record date for such distribution;



 84
 









CR’ = the Conversion Rate in effect immediately after
the record date for such distribution;


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


FMV = the fair market value as determined by the Board
of Directors of the Distributed Property with respect to each outstanding share
of Common Stock on the Ex-Date for such distribution.


Such adjustment shall become effective immediately
prior to the opening of business on the record date for such distribution; provided that if “FMV” as set forth above is equal to or
greater than “SP0”
as set forth above, in lieu of the foregoing adjustment, adequate provision
shall be made so that each Holder of Notes has the right to receive, for each
$1,000 principal amount of Notes, the amount of Distributed Property such
holder would have received had such holder owned a number of shares of Common
Stock equal to the Conversion Rate on the Ex-Date for such distribution,
without being required to convert the Notes. 
If such distribution is not so paid or made, the Conversion Rate shall
again be adjusted to be the Conversion Rate that would then be in effect if
such dividend or distribution had not been declared.  If the Board of Directors determines “FMV”
for purposes of this Section 12.04(c) 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 Last Reported Sale
Prices of the Common Stock over the ten consecutive Trading Day period ending
on the Trading Day immediately preceding the Ex-Date for such distribution.


With respect to an adjustment pursuant to this
subsection (c) where there has been a payment of a dividend or other
distribution on the Common Stock or shares of Capital Stock of any class or
series, or similar equity interest, of or relating to a Subsidiary or other
business unit (a “Spin-Off”), the
Conversion Rate in effect immediately before 5:00 p.m., New York City time, on
the 10th Trading Day immediately following, and including, the effective date
of the Spin-Off shall be increased based on the following formula:


	
  CR’ = CR0 ×

  	
   FMV0 + MP0

  
	
   

  	
   MP0

  



 


Where,


CR0 = the Conversion
Rate in effect immediately prior to the 10th Trading Day immediately following
the effective date of the Spin-Off;


CR’ = the Conversion Rate in effect immediately after
the 10th Trading Day immediately following the effective date of the Spin-Off;



 85
 









FMV0 = the average of
the Last Reported Sale Prices of the capital stock or similar equity interest
distributed to holders of Common Stock applicable to one share of Common Stock
over the first 10 consecutive Trading Day period immediately following, and
including, the effective date of the Spin-Off; and


MP0 = the average of
the Last Reported Sale Prices of Common Stock over the first 10 consecutive
Trading Day period immediately following, and including, the effective date of
the Spin-Off.


Such adjustment shall occur on the 10th Trading Day
from, and including, the effective date of the Spin-Off; provided
that in respect of any conversion within the 10 Trading Days immediately
following, and including, the effective date of any Spin-Off, references with
respect to the Spin-Off to 10 Trading Days shall be deemed replaced with such
lesser number of Trading Days as have elapsed between the effective date of
such Spin-Off and the Conversion Date in determining the applicable Conversion
Rate.


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, including Common 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 12.04 (and no adjustment to the Conversion Rate under
this Section 12.04 shall 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 subsection (c). If any such rights or
warrants are subject to events, upon the occurrence of which such rights or
warrants become exercisable to purchase different securities, evidences of
Indebtedness or other assets, then the date of the occurrence of any and each
such event shall be deemed to be the date of distribution and 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 12.04 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



 86
 









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 subsection (c) and subsections
(a) and (b) of this Section 12.04, any dividend or distribution to which this
subsection (c) is applicable that also includes shares of Common Stock to which
subsection (a) of this Section 12.04 applies or rights or warrants to subscribe
for or purchase shares of Common Stock to which subsection (a) or (b) of this
Section 12.04 applies (or both), shall be deemed instead to be (1) a dividend
or distribution of the evidences of Indebtedness, assets or shares of capital
stock other than such shares of Common Stock or rights or warrants, to which
this subsection (c) applies (and any Conversion Rate adjustment required by
this subsection (c) with respect to such dividend or distribution shall then be
made) immediately followed by (2) a dividend or distribution of such shares of
Common Stock or such rights or warrants (and any further Conversion Rate
adjustment required by subsections (a) and (b) of this Section 12.04 with
respect to such dividend or distribution shall then be made), except (A) the
record date of such dividend or distribution shall under this subsection (c) be
substituted as “the record date” within the meaning of subsection (a) and
subsection (b) and (B) any shares of Common Stock included in such dividend or
distribution shall not be deemed “outstanding immediately prior to the record
date for such dividend or distribution or immediately prior to the effective
date of such share split or combination, as the case may be” within the meaning
of subsection (a) or “outstanding immediately prior to the record date for such
distribution” within the meaning of subsection (b).


(d)           In case the Company
shall pay dividends or make distributions consisting exclusively of cash to all
or substantially all holders of its Common Stock, the Conversion Rate shall be
adjusted based on the following formula:


	
  CR’ = CR0 ×

  	
  SP0

  
	
   

  	
  SP0 - C

  



 


where,


CR0 = the Conversion
Rate in effect immediately prior to the record date for such distribution;


CR’ = the Conversion Rate in effect immediately after
the record date for such distribution;


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



 87
 









C = the amount in cash per share we distribute to
holders of Common Stock in such distribution.


Such adjustment shall become effective immediately
prior to the opening of business on the record date for such dividend or
distribution; provided that if the portion of
the cash so distributed applicable to one share of the Common Stock is equal to
or greater than SP0 as set forth above, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder of Notes shall
receive on the date on which such cash dividend is distributed to holders of
Common Stock, for each $1,000 principal amount of Notes, the amount of cash
such holder would have received had such holder owned a number of shares equal
to the Conversion Rate on the record date for such distribution, without being
required to convert the Notes. If such dividend or distribution is not so paid
or made, the Conversion Rate shall again be adjusted to be the Conversion Rate
that would then be in effect if such dividend or distribution had not been
declared.


For the avoidance of doubt, for purposes of this
subsection (d), in the event of any reclassification of the Common Stock, as a
result of which the Notes become convertible into more than one class of Common
Stock, if an adjustment to the Conversion Rate is required pursuant to this
subsection (d), references in this Section 12.04 to one share of Common Stock
or Last Reported Sale Price of one share of Common Stock shall be deemed to
refer to a unit or to the price of a unit consisting of the number of shares of
each class of Common Stock into which the Notes are then convertible equal to
the numbers of shares of such class issued in respect of one share of Common
Stock in such reclassification. The above provisions of this paragraph shall
similarly apply to successive reclassifications.


(e)           In case the Company
or any of its Subsidiaries make a payment in respect of a tender offer or
exchange offer for all or any portion of the Common Stock, to the extent that
the cash and value of any other consideration included in the payment per share
of Common Stock exceeds the Last Reported Sale Price of the Common Stock on the
Trading Day following the last date on which tenders or exchanges may be made
pursuant to such tender or exchange offer (as it may be amended), the
Conversion Rate shall be increased based on the following formula:


	
  CR’ = CR0 ×

  	
   AC + (SP’ × OS’)

  
	
   

  	
   OS0 × SP’

  



 


where,


CR0 = the Conversion
Rate in effect on the date such tender or exchange offer expires;


CR’ = the Conversion Rate in effect on the day
following the date such tender or exchange offer expires;



 88
 









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


OS0 = the number of
shares of Common Stock outstanding immediately prior to the date such tender or
exchange offer expires;


OS’ = the number of shares of Common Stock outstanding
immediately after the date such tender or exchange offer expires (after giving
effect to such tender offer or exchange offer); and


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


Such adjustment shall become effective immediately
after close of business on the Trading Day next succeeding the date such tender
or exchange offer expires. If the Company or its Subsidiary is obligated to
purchase shares of Common Stock pursuant to any such tender or exchange offer,
but the Company or its Subsidiary is permanently prevented by applicable law
from effecting all or any such purchases or all or any portion of such
purchases are rescinded, the Conversion Rate shall again be adjusted to be the
Conversion Rate that would then be in effect if such tender or exchange offer
had not been made or had only been made in respect of the purchases that had
been effected.


No adjustment to the Conversion Rate shall be made if
the application of any of the foregoing formulas (other than in connection with
a share combination) would result in a decrease in the Conversion Rate.


For purposes of this Section 12.04 the term “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 shareholders 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).  If the
Company irrevocably elects Net Share Settlement, then each reference to a
“record date” in this Section 12.04 shall be deemed as a reference to an
“ex-date” effective on the date on which the Net Share Settlement election
becomes effective.


(f)            In addition to
those required by subsections (a), (b), (c), (d) and (e) of this Section 12.04,
and to the extent permitted by applicable law and the rules of the NASDAQ
Global Market or any other securities exchange on which the Common Stock is
then listed, the Company from time to time may increase the Conversion Rate by
any amount for a period of at least 20 calendar days if the Board of Directors
determines that such increase would be in the Company’s best interest. Whenever
the Conversion Rate is increased pursuant to the preceding



 89
 









sentence, the
Company shall notify the Holder of each Note on the increase at least 15
calendar 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. In addition, the Company may also (but is not
required to) increase the Conversion Rate to avoid or diminish any income tax
to holders of Common Stock or rights to purchase Common Stock in connection
with any dividend or distribution of shares (or rights to acquire shares) or
similar event.


(g)           Without limiting the
foregoing, no adjustment to the Conversion Rate need be made


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


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


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


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


(v)           for accrued and unpaid Interest
(including any Additional Interest).


(h)           All calculations and
other determinations under this Article 12 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 shall be made to the
Conversion Rate unless such adjustment would require a change of at least 1% in
the Conversion Rate then in effect at such time. The Company shall carry
forward any adjustments that are less than 1% of the Conversion Rate and make
such carried forward adjustments, regardless of whether the aggregate
adjustment is less than 1% (1) annually, on the anniversary of the date of this
Indenture, (2) upon any conversion in connection with a Fundamental Change and
(3) on each day from and after the 22nd Scheduled Trading Day prior to the
Maturity Date through and including the Maturity Date.


(i)            In any case in
which this Section 12.04 provides that an adjustment shall become effective
immediately after (1) the record date or Ex-Date for an event or (2) the last
date on which tenders or exchanges may be made pursuant to any tender or
exchange offer pursuant to subsection (e) of this Section 12.04 (each



 90
 









an “Adjustment 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 Adjustment Determination Date and before the occurrence of such
Adjustment Event, additional shares of Common Stock or other securities
issuable upon such conversion (or, if the Company has irrevocably elected Net
Share Settlement, the additional cash and, if applicable, 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 amounts
deliverable 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 12.03. For purposes of this subsection (i), the term “Adjustment Event” shall mean:


(i)            in any case referred to in clause
(1) hereof, the date any dividend or distribution of Common Stock, shares of
capital stock, evidences of Indebtedness, other assets or property or cash is
paid or made, the effective date of any share split or combination or the date
of expiration of any rights or warrants, and


(ii)           in any case referred to in clause (2)
hereof, the date a sale or exchange of Common Stock pursuant to such tender or
exchange offer is consummated and becomes irrevocable.


(j)            For purposes of
this Section 12.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but
shall include shares issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock.


(k)           For the avoidance of
doubt, if a holder converts Notes prior to the effective date of a Fundamental
Change, and the Fundamental Change does not occur, the Holder shall not be
entitled to Additional Shares in connection with such conversion.


(l)            With respect to a
conversion of Notes pursuant to this Article 12, at and after the close of
business on the related Conversion Date (or, following the Company’s election
of Net Share Settlement, if available, the last VWAP Trading Day of the
applicable Observation Period) (the “Relevant
Date”), the Person in whose name any certificate representing any
shares of Common Stock issuable upon such conversion is registered shall be
treated as a stockholder of record of the Company on such Relevant Date; provided, however, that if any such shares of Common Stock
constitute Additional Shares, then the Relevant Date with respect to such
shares that constitute Additional Shares shall instead be deemed to be the
later of (i) the related Conversion Date (or, following the Company’s election
of Net Share Settlement, if available, the last VWAP Trading Day of the
applicable Observation Period) and (ii) the Effective Date of the Fundamental
Change resulting in the Additional Shares. On and after the Relevant Date with
respect to a conversion of Notes pursuant hereto, all rights of the Holders of
such



 91
 









Notes shall
terminate, other than the right to receive the consideration deliverable upon
conversion of such Notes as provided herein. A Holder of a Note is not
entitled, as such, to any rights of a holder of Common Stock until, if such
Holder converts such Note and is entitled pursuant hereto to receive shares of
Common Stock in respect of such conversion, the close of business on the
Relevant Date or respective Relevant Dates, as the case may be, with respect to
such conversion.


(m)          Whenever any
provision of this Article 12 requires a calculation of Last Reported Sale
Prices or Daily VWAP over a span of multiple days, the Company shall make
appropriate adjustments to the Daily Settlement Amounts (determined in good
faith by the Board of Directors) to account for any adjustment to the
Conversion Rate that becomes effective, or any event requiring an adjustment to
the Conversion Rate where the record date or Ex-Date, as applicable, of the
event occurs, at any time during the period from which such calculation is to
be calculated; provided that such adjustments
shall only be made to the Daily Settlement Amounts relating to days prior to
the date that the adjustment to the Conversion Rate becomes effective.


(n)           The Company shall
not take any action that would result in an adjustment pursuant to this Section
12.04 without complying with the shareholder approval rules of the NASDAQ
Global Market.


SECTION 12.05  Notice of Adjustments of Conversion Rate.


Whenever the Conversion Rate is adjusted as herein
provided:


(a)           the Company shall
compute the adjusted Conversion Rate in accordance with Section 12.04 and shall
prepare a certificate signed by the Chief Financial Officer of the Company
setting forth the adjusted Conversion Rate and showing in reasonable detail the
facts upon which such adjustment is based, and such certificate shall promptly
be filed with the Trustee and with each Conversion Agent (if other than the
Trustee); and


(b)           upon each such
adjustment, a notice stating that the Conversion Rate has been adjusted and
setting forth the adjusted Conversion Rate shall be required, such notice shall
be provided by the Company to all Holders in accordance with Section 1.07.


Neither the Trustee nor any Conversion Agent shall be
under any duty or responsibility with respect to any such certificate or the
information and calculations contained therein, except to exhibit the same to
any Holder of Notes desiring inspection thereof at its office during normal
business hours.


SECTION 12.06  Company to Reserve Common Stock.


The Company shall at all times reserve and keep
available, free from preemptive rights, out of its authorized but unissued
Common Stock, for the



 92
 









purpose of effecting the conversion of Notes, the full
number of shares of Common Stock then issuable upon the conversion of all
Outstanding Notes.


SECTION 12.07  Taxes on Conversions.


Except as provided in the next sentence, the Company
shall pay all documentary, stamp or similar issue or transfer tax due that may
be payable in respect of the issue or delivery of shares of Common Stock on
conversion of Notes pursuant hereto. The Company shall not, however, be
required, and the Holder shall instead be required, to pay any tax or duty that
may be payable in respect of (i) income of the Holder, or (ii) any transfer
involved in the issue and delivery of shares of Common Stock in a name other
than that of the Holder of the Note or Notes to be converted, and no such issue
or delivery shall be made unless and until the Person requesting such issue has
paid to the Company the amount of any such tax or duty, or has established to
the satisfaction of the Company that such tax or duty has been paid.


SECTION 12.08  Certain Covenants.


Before taking any action which would cause an
adjustment reducing the Conversion Rate below the then par value, if any, of
the shares of Common Stock issuable upon conversion of the Notes, the Company
shall take all corporate action, if any, which it reasonably determines may 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
issued upon conversion of Notes shall be fully paid and non-assessable by the
Company and free from all liens created by the Company.


The Company further covenants that if at any time the
Common Stock shall be listed for trading on any other national securities
exchange the Company shall, if permitted and required by the rules of such
exchange, list and keep listed, so long as the Common Stock shall be so listed
on such exchange, all Common Stock issuable upon conversion of the Notes.


SECTION 12.09  Cancellation of Converted Notes.


All Notes delivered for conversion shall be delivered
to the Trustee or its agent and canceled by the Trustee as provided in Section
3.08.


SECTION 12.10  Provision in Case of Effect of Reclassification,
Consolidation, Merger or Sale.


If any of the following events occur, namely (i) any
Fundamental Change described in clause (2) of the definition thereof, (ii) any
reclassification or change of the outstanding shares of Common Stock (other
than a change in par value, or



 93
 









from par value to no par value, or from no par value
to par value, or as a result of a split, subdivision or combination), (iii) any
consolidation, binding share exchange, recapitalization, reclassification,
merger, combination or other similar event involving, or (iv) any sale or
conveyance of all or substantially all of the property and assets of the
Company to any other Person, in any case as a result of which holders of Common
Stock shall be entitled to receive cash, securities or other property or assets
with respect to or in exchange for such Common Stock subject to the Company’s
right to irrevocably elect Net Share Settlement (any such event described in
clauses (i) through (iv) a “Merger Event”),
then:


(a)           the Company or the
successor or purchasing Person, as the case may be, shall execute with the
Trustee a supplemental indenture (which shall comply with the Trust Indenture
Act as in force at the date of execution of such supplemental indenture if such
supplemental indenture is then required to so comply) permitted under Section
8.01(f) providing for the conversion and settlement of the Notes as set forth
in this Indenture. 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 12 and the Trustee may conclusively rely on the
determination by the Company of the equivalency of such adjustments. If, in the
case of any Merger Event, the Reference Property includes shares of stock or
other securities and assets of a company other than the successor or purchasing
company, as the case may be, in such Merger Event, then such supplemental
indenture shall also be executed by such other company and shall contain such
additional provisions to protect the interests of the Holders of the Notes as
the Board of Directors shall reasonably consider necessary by reason of the
foregoing, including to the extent required by the Board of Directors and
practicable the provisions providing for the repurchase rights set forth in
Article 11.


In the event a supplemental indenture is executed
pursuant to this Section 12.10, the Company shall promptly file with the Trustee
an Officers’ Certificate briefly stating the reasons therefor, the kind or
amount of cash, securities or property or assets that will constitute the
Reference Property after any such Merger Event, any adjustment to be made with
respect thereto and that all conditions precedent have been complied with, and
shall promptly mail notice thereof to all Holders.


If any securities 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 securities
may be validly issued upon conversion, each supplemental indenture executed
pursuant to this Section 12.10 shall provide that the Company or the successor
or the purchasing Person, as the case may be, or if the Reference Property
includes shares of stock or other securities and assets of a company other than
the successor or purchasing company, as the case may be, then such company,
shall use all commercially reasonable efforts, to the extent then permitted by
the rules and interpretations of



 94
 









the Commission (or any successor thereto), to secure
such registration or approval in connection with the conversion of Notes.


(b)           Notwithstanding the
provisions of Section 12.02(a) to (d), and subject to the provisions of Section
12.01, at the effective time of such Merger Event, the right to convert each
$1,000 principal amount of Notes shall be changed to a right to convert such
Notes by reference to the kind and amount of cash, securities or other property
or assets that a holder of a number of shares of Common Stock equal to the
Conversion Rate immediately prior to such transaction would have owned or been
entitled to receive (the “Reference Property”); provided that if the Company
has irrevocably elected Net Share Settlement, such a Holder shall be entitled
from and after the effective time of such transaction to convert its Notes into
cash and, in lieu of Common Stock, if any, the same type (and in the same
proportion) of Reference Property, based on the Daily Settlement Amounts of
Reference Property in an amount equal to the applicable Conversion Rate, as
described under Section 12.02(a). For purposes of determining the constitution
of Reference Property, the type and amount of consideration that a holder of
Common Stock would have been entitled to in the case of change of controls,
consolidations, binding share exchanges, recapitalizations, reclassifications,
mergers, combinations, sales or transfers of assets or Fundamental Changes
described in clause (2) of the definition of Fundamental Change or other
transactions that cause the Common Stock to be converted into the right to
receive more than a single type of consideration (determined, based in part
upon any form of stockholder election) shall be deemed to be the (i) weighted
average of the types and amounts of consideration received by the holders of
Common Stock that affirmatively make such an election or (ii) if no holders of
Common Stock affirmatively make such election, the types and amounts of
consideration actually received by such holders. The Company shall not become a
party to any such transaction unless its terms are consistent with the
preceding. None of the foregoing provisions shall affect the right of a Holder
of Notes to convert its Notes in accordance with the provisions of this Article
12 prior to the effective date.


(c)           The Company shall
cause notice of the execution of such supplemental indenture to be mailed to
each Holder, at his address appearing on the Register provided for in this
Indenture, within 20 calendar days after execution thereof.  Failure to deliver such notice shall not
affect the legality or validity of such supplemental indenture.


(d)           The above provisions
of this Section 12.10 shall similarly apply to successive Merger Events.


SECTION 12.11  Treatment of Rights.


To the extent that the Company’s rights plan is in
effect upon conversion of the Notes into Common Stock, each Holder thereof will
receive, in addition to any Common Stock, the rights under such rights plan,
unless prior to any



 95
 









conversion, such rights have separated from the Common
Stock, in which case the Conversion Rate shall be adjusted at the time of
separation as if the Company distributed to all Holders of Common Stock, shares
of the Company’s Capital Stock, evidences of Indebtedness or assets as
described in Section 12.04(c), subject to readjustment in the event of
expiration, termination or redemption of such rights.


SECTION 12.12  Exchange in Lieu of Conversion.


When a Holder surrenders Notes for conversion, the Company
may, promptly after receipt of notice of conversion (or, in the case of any
surrender of Notes for conversion after the election of Net Share Settlement,
on or prior to the commencement of the Observation Period), direct the
Conversion Agent to surrender such Notes to a financial institution designated
by the Company for exchange in lieu of conversion.  In order to accept any Notes surrendered for
conversion, the designated institution must agree to deliver, in exchange for
such Notes, all shares of the Common Stock (or in the case of any surrender of
Notes for conversion after the election of Net Share Settlement, cash and
shares of the Common Stock, if any) equal to the consideration due upon
conversion, at the sole option of the designated institution.  By the close of business on the Trading Day
immediately succeeding the Conversion Date (or, in the case of any surrender of
Notes for conversion after the election of Net Share Settlement, by the close
of business on the Trading Day immediately preceding the start of the
Observation Period), the Company will notify the Holder surrendering Notes for
conversion that the Company has directed the designated institution to make an
exchange in lieu of conversion and such designated institution will be required
to notify the Conversion Agent whether it will deliver shares of the Common
Stock (or, in the case of any surrender of Notes for conversion after the
election of Net Share Settlement, cash and shares of Common Stock, if any).


If the designated institution accepts any such Notes,
it will deliver the appropriate number of shares of Common Stock (or, in the
case of any surrender of Notes for conversion after the election of Net Share
Settlement, the appropriate amount of cash and the appropriate number of shares
of Common Stock, if any) to the Conversion Agent and the Conversion Agent will
deliver those shares and the cash, as applicable, to the applicable Note
Holder.  Any Notes exchanged by the
designated institution will remain outstanding. 
If the designated institution agrees to accept any Notes for exchange
but does not timely deliver the related consideration, or if such designated
institution does not accept the Notes for exchange, the Company will, no later
that the third Trading Day immediately following the Conversion Date (or, in
the case of any surrender of Notes for conversion after the election of Net
Share Settlement, no later than the last day of the related Observation Period)
convert the Notes into cash and shares, if any, of Common Stock).


The Company’s designation of a financial institution
to which the Notes may be submitted for exchange does not require such
institution to accept any



 96
 









Notes.  The
Company shall not pay any consideration to, or otherwise enter into any
agreement with, the designated institution for or with respect to such
designation.


SECTION 12.13  Responsibility of Trustee for Conversion Provisions.


The Trustee and any Conversion Agent shall not at any
time be under any duty or responsibility to any Holder of Notes to determine
whether any facts exist which may require any adjustment of the Conversion
Rate, or with respect to the nature or extent of any such adjustment when made,
or with respect to the method employed, herein or in any supplemental indenture
provided to be employed, in making the same, or whether a supplemental
indenture need be entered into.  Neither
the Trustee nor any Conversion Agent shall be accountable with respect to the
validity or value (or the kind or amount) of any Common Stock, or of any other
securities or property or cash, which may at any time be issued or delivered
upon the conversion of any Notes; and it or they do not make any representation
with respect thereto.  Neither the
Trustee nor any Conversion Agent shall be responsible for any failure of the
Company to make or calculate any cash payment or to issue, transfer or deliver
any shares of Common Stock or share certificates or other securities or
property or cash upon the surrender of any Note for the purpose of conversion;
and the Trustee and any Conversion Agent shall not be responsible for any
failure of the Company to comply with any of the covenants of the Company
contained in this Article 12.


 


This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.



 97
 









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


	
  

  	
  AMYLIN PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark G. Foletta

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Mark G. Foletta

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President,

  Finance and Chief Financial

  Officer

  
					



 


	
  

  	
  THE BANK OF NEW YORK TRUST

  COMPANY, N.A.,

  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Teresa Petta

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Teresa Petta

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 



 98














SCHEDULE A


The following table sets forth the “Stock Price,”
“Effective Date” and number of Additional Shares by which the Conversion Rate
for the 3.00% Convertible Senior Notes due 2014 shall be increased in the event
of a Make-Whole Fundamental Change, in accordance with the Indenture:


	
  Effective Date

  	
   

  
	
  Stock

  Price

  	
   

  	
  June 8,

  2007

  	
   

  	
  June 15,

  2008

  	
   

  	
  June 15,

  2009

  	
   

  	
  June 15,

  2010

  	
   

  	
  June 15,

  2011

  	
   

  	
  June 15,

  2012

  	
   

  	
  June 15,

  2013

  	
   

  	
  June 15,

  2014

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $ 43.62

  	
   

  	
  6.5456

  	
   

  	
  6.4576

  	
   

  	
  6.3467

  	
   

  	
  6.2284

  	
   

  	
  6.0984

  	
   

  	
  5.9875

  	
   

  	
  5.9890

  	
   

  	
  6.5501

  	
   

  
	
  $ 45.00

  	
   

  	
  6.2058

  	
   

  	
  6.1023

  	
   

  	
  5.9729

  	
   

  	
  5.8303

  	
   

  	
  5.6671

  	
   

  	
  5.5062

  	
   

  	
  5.4197

  	
   

  	
  5.8470

  	
   

  
	
  $ 47.50

  	
   

  	
  5.6560

  	
   

  	
  5.5294

  	
   

  	
  5.3721

  	
   

  	
  5.1927

  	
   

  	
  4.9790

  	
   

  	
  4.7416

  	
   

  	
  4.5144

  	
   

  	
  4.6774

  	
   

  
	
  $ 50.00

  	
   

  	
  5.1785

  	
   

  	
  5.0339

  	
   

  	
  4.8550

  	
   

  	
  4.6471

  	
   

  	
  4.3941

  	
   

  	
  4.0961

  	
   

  	
  3.7534

  	
   

  	
  3.6248

  	
   

  
	
  $ 52.50

  	
   

  	
  4.7615

  	
   

  	
  4.6031

  	
   

  	
  4.4077

  	
   

  	
  4.1781

  	
   

  	
  3.8951

  	
   

  	
  3.5506

  	
   

  	
  3.1173

  	
   

  	
  2.6724

  	
   

  
	
  $ 55.00

  	
   

  	
  4.3952

  	
   

  	
  4.2265

  	
   

  	
  4.0189

  	
   

  	
  3.7731

  	
   

  	
  3.4680

  	
   

  	
  3.0894

  	
   

  	
  2.5885

  	
   

  	
  1.8066

  	
   

  
	
  $ 57.50

  	
   

  	
  4.0719

  	
   

  	
  3.8957

  	
   

  	
  3.6794

  	
   

  	
  3.4221

  	
   

  	
  3.1014

  	
   

  	
  2.6989

  	
   

  	
  2.1514

  	
   

  	
  1.0161

  	
   

  
	
  $ 60.00

  	
   

  	
  3.7852

  	
   

  	
  3.6038

  	
   

  	
  3.3816

  	
   

  	
  3.1165

  	
   

  	
  2.7857

  	
   

  	
  2.3679

  	
   

  	
  1.7918

  	
   

  	
  0.2915

  	
   

  
	
  $ 65.00

  	
   

  	
  3.3013

  	
   

  	
  3.1149

  	
   

  	
  2.8874

  	
   

  	
  2.6155

  	
   

  	
  2.2767

  	
   

  	
  1.8483

  	
   

  	
  1.2571

  	
   

  	
  0.0000

  	
   

  
	
  $ 70.00

  	
   

  	
  2.9111

  	
   

  	
  2.7247

  	
   

  	
  2.4981

  	
   

  	
  2.2277

  	
   

  	
  1.8924

  	
   

  	
  1.4717

  	
   

  	
  0.9032

  	
   

  	
  0.0000

  	
   

  
	
  $ 80.00

  	
   

  	
  2.3275

  	
   

  	
  2.1497

  	
   

  	
  1.9351

  	
   

  	
  1.6810

  	
   

  	
  1.3711

  	
   

  	
  0.9932

  	
   

  	
  0.5185

  	
   

  	
  0.0000

  	
   

  
	
  $ 90.00

  	
   

  	
  1.9176

  	
   

  	
  1.7537

  	
   

  	
  1.5572

  	
   

  	
  1.3268

  	
   

  	
  1.0513

  	
   

  	
  0.7265

  	
   

  	
  0.3499

  	
   

  	
  0.0000

  	
   

  
	
  $ 100.00

  	
   

  	
  1.6177

  	
   

  	
  1.4690

  	
   

  	
  1.2916

  	
   

  	
  1.0860

  	
   

  	
  0.8446

  	
   

  	
  0.5691

  	
   

  	
  0.2698

  	
   

  	
  0.0000

  	
   

  
	
  $ 125.00

  	
   

  	
  1.1384

  	
   

  	
  1.0246

  	
   

  	
  0.8898

  	
   

  	
  0.7370

  	
   

  	
  0.5637

  	
   

  	
  0.3763

  	
   

  	
  0.1867

  	
   

  	
  0.0000

  	
   

  
	
  $ 150.00

  	
   

  	
  0.8589

  	
   

  	
  0.7719

  	
   

  	
  0.6685

  	
   

  	
  0.5528

  	
   

  	
  0.4235

  	
   

  	
  0.2863

  	
   

  	
  0.1465

  	
   

  	
  0.0000

  	
   

  
	
  $ 175.00

  	
   

  	
  0.6765

  	
   

  	
  0.6093

  	
   

  	
  0.5283

  	
   

  	
  0.4380

  	
   

  	
  0.3374

  	
   

  	
  0.2303

  	
   

  	
  0.1192

  	
   

  	
  0.0000

  	
   

  
	
  $ 200.00

  	
   

  	
  0.5477

  	
   

  	
  0.4953

  	
   

  	
  0.4306

  	
   

  	
  0.3583

  	
   

  	
  0.2773

  	
   

  	
  0.1903

  	
   

  	
  0.0989

  	
   

  	
  0.0000