Exhibit 4.19


 


 


AMGEN INC.

$2,500,000,000

0.125% Convertible Senior Notes due 2011


 


 


INDENTURE


 


Dated as of February 17, 2006


 


 


JPMORGAN CHASE BANK, N.A.,
Trustee


 

















 


CROSS REFERENCE TABLE*


 






*                                         Note:  This Cross Reference Table shall not, for any
purpose, be deemed to be part of the Indenture.


 




	
  TIA Section

  	
   

  	
  Indenture Section

  
	
  310 (a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  7.08; 7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311 (a)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312 (a)

  	
   

  	
  2.05

  
	
  (b)

  	
   

  	
  12.03

  
	
  (c)

  	
   

  	
  12.03

  
	
  313 (a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  N.A.

  
	
  (b)(2)

  	
   

  	
  7.06

  
	
  (c)

  	
   

  	
  12.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314 (a)

  	
   

  	
  4.02; 4.03; 12.02

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  12.04

  
	
  (c)(2)

  	
   

  	
  12.04

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  12.05

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315 (a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  7.05; 12.02

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
  6.11

  






 


i

















 




	
  TIA Section

  	
   

  	
  Indenture Section

  
	
  316 (a) (last sentence)

  	
   

  	
  2.08

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.07

  
	
  317 (a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (b)

  	
   

  	
  2.04

  
	
  318 (a)

  	
   

  	
  12.01

  






 




	
  N.A. means not applicable.

  	
   

  	
   

  






 


ii

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
   

  
	
   

  	
   

  
	
  DEFINITIONS AND INCORPORATION
  BY REFERENCE

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01

  	
  Definitions

  	
  1

  
	
  SECTION 1.02

  	
  Other
  Definitions

  	
  7

  
	
  SECTION 1.03

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
  8

  
	
  SECTION 1.04

  	
  Rules of
  Construction

  	
  8

  
	
  SECTION 1.05

  	
  Acts of
  Holders

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
   

  
	
   

  	
   

  
	
  THE SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01

  	
  Form and
  Dating

  	
  10

  
	
  SECTION 2.02

  	
  Execution
  and Authentication

  	
  11

  
	
  SECTION 2.03

  	
  Registrar,
  Paying Agent and Conversion Agent

  	
  12

  
	
  SECTION 2.04

  	
  Paying Agent
  to Hold Money and Securities in Trust

  	
  12

  
	
  SECTION 2.05

  	
  Securityholder
  Lists

  	
  13

  
	
  SECTION 2.06

  	
  Transfer and
  Conversion

  	
  13

  
	
  SECTION 2.07

  	
  Replacement
  Securities

  	
  14

  
	
  SECTION 2.08

  	
  Outstanding
  Securities; Determinations of Holders’ Action

  	
  15

  
	
  SECTION 2.09

  	
  Temporary
  Securities

  	
  16

  
	
  SECTION 2.10

  	
  Cancellation

  	
  16

  
	
  SECTION 2.11

  	
  Persons
  Deemed Owners

  	
  16

  
	
  SECTION 2.12

  	
  Legend;
  Additional Transfer and Exchange Requirements

  	
  17

  
	
  SECTION 2.13

  	
  CUSIP
  Numbers

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
   

  
	
   

  	
   

  
	
  PURCHASES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01

  	
  Purchase of
  Securities at Option of the Holder upon Change in Control

  	
  23

  
	
  SECTION 3.02

  	
  Effect of Change
  in Control Purchase Notice

  	
  26

  
	
  SECTION 3.03

  	
  Deposit of
  Change in Control Purchase Price

  	
  27

  
	
  SECTION 3.04

  	
  Securities
  Purchased in Part

  	
  27

  
	
  SECTION 3.05

  	
  Covenant to
  Comply With Securities Laws Upon Purchase of Securities

  	
  28

  
	
  SECTION 3.06

  	
  Repayment to
  the Company

  	
  28

  



 


i

















 


	
  ARTICLE 4

  	
   

  
	
   

  	
   

  
	
  COVENANTS

  	
   

  
	
  SECTION 4.01

  	
  Payment of
  Securities

  	
  28

  
	
  SECTION 4.02

  	
  SEC and Other
  Reports

  	
  29

  
	
  SECTION 4.03

  	
  Compliance
  Certificate

  	
  29

  
	
  SECTION 4.04

  	
  Maintenance
  of Office or Agency

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
   

  
	
   

  	
   

  
	
  SUCCESSOR CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01

  	
  When Company
  May Merge or Transfer Assets

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
   

  
	
   

  	
   

  
	
  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01

  	
  Events of
  Default

  	
  31

  
	
  SECTION 6.02

  	
  Acceleration

  	
  32

  
	
  SECTION 6.03

  	
  Other
  Remedies

  	
  33

  
	
  SECTION 6.04

  	
  Waiver of
  Past Defaults

  	
  33

  
	
  SECTION 6.05

  	
  Control by
  Majority

  	
  33

  
	
  SECTION 6.06

  	
  Limitation
  on Suits

  	
  34

  
	
  SECTION 6.07

  	
  Rights of
  Holders to Receive Payment

  	
  34

  
	
  SECTION 6.08

  	
  Collection
  Suit by Trustee

  	
  34

  
	
  SECTION 6.09

  	
  Trustee May
  File Proofs of Claim

  	
  34

  
	
  SECTION 6.10

  	
  Priorities

  	
  35

  
	
  SECTION 6.11

  	
  Undertaking
  for Costs

  	
  36

  
	
  SECTION 6.12

  	
  Waiver of
  Stay, Extension or Usury Laws

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
   

  
	
   

  	
   

  
	
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01

  	
  Duties of
  Trustee

  	
  36

  
	
  SECTION 7.02

  	
  Rights of
  Trustee

  	
  37

  
	
  SECTION 7.03

  	
  Individual
  Rights of Trustee

  	
  39

  
	
  SECTION 7.04

  	
  Trustee’s
  Disclaimer

  	
  39

  
	
  SECTION 7.05

  	
  Notice of
  Defaults

  	
  39

  
	
  SECTION 7.06

  	
  Reports by
  Trustee to Holders

  	
  39

  
	
  SECTION 7.07

  	
  Compensation
  and Indemnity

  	
  40

  
	
  SECTION 7.08

  	
  Replacement
  of Trustee

  	
  40

  
	
  SECTION 7.09

  	
  Successor
  Trustee by Merger

  	
  41

  
	
  SECTION 7.10

  	
  Eligibility;
  Disqualification

  	
  41

  



 


ii

















 


	
  ARTICLE 8

  	
   

  
	
   

  	
   

  
	
  DISCHARGE OF INDENTURE

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01

  	
  Discharge of
  Liability on Securities

  	
  42

  
	
  SECTION 8.02

  	
  Repayment to
  the Company

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
   

  
	
   

  	
   

  
	
  AMENDMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01

  	
  Without
  Consent of Holders

  	
  42

  
	
  SECTION 9.02

  	
  With Consent
  of Holders

  	
  43

  
	
  SECTION 9.03

  	
  Compliance
  with Trust Indenture Act

  	
  44

  
	
  SECTION 9.04

  	
  Revocation
  and Effect of Consents, Waivers and Actions

  	
  44

  
	
  SECTION 9.05

  	
  Notation on
  or Exchange of Securities

  	
  44

  
	
  SECTION 9.06

  	
  Trustee to
  Sign Supplemental Indentures

  	
  44

  
	
  SECTION 9.07

  	
  Effect of
  Supplemental Indentures

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
   

  
	
   

  	
   

  
	
  CONVERSION

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01

  	
  Conversion
  Privilege

  	
  45

  
	
  SECTION 10.02

  	
  Conversion
  Procedure

  	
  46

  
	
  SECTION 10.03

  	
  Fractional
  Shares

  	
  47

  
	
  SECTION 10.04

  	
  Taxes on
  Conversion

  	
  47

  
	
  SECTION 10.05

  	
  Company to
  Provide Stock

  	
  47

  
	
  SECTION 10.06

  	
  Adjustment
  for Change In Capital Stock

  	
  47

  
	
  SECTION 10.07

  	
  Adjustment
  for Rights Issue

  	
  48

  
	
  SECTION 10.08

  	
  Adjustment
  for Other Distributions

  	
  49

  
	
  SECTION 10.09

  	
  Adjustment
  for Cash Dividends

  	
  51

  
	
  SECTION 10.10

  	
  Adjustment
  for Tender Offer

  	
  52

  
	
  SECTION 10.11

  	
  Adjustment
  to Conversion Rate Upon Change in Control Transactions

  	
  53

  
	
  SECTION 10.12

  	
  Adjustment
  to Conversion Rate After a Public Acquirer Change in Control

  	
  54

  
	
  SECTION 10.13

  	
  When
  Adjustment May Be Deferred

  	
  55

  
	
  SECTION 10.14

  	
  When No
  Adjustment Required

  	
  56

  
	
  SECTION 10.15

  	
  Notice of
  Adjustment

  	
  56

  
	
  SECTION 10.16

  	
  Notice of
  Certain Transactions

  	
  56

  
	
  SECTION 10.17

  	
  Reorganization
  of Company; Special Distributions

  	
  57

  
	
  SECTION 10.18

  	
  Company
  Determination Final

  	
  57

  
	
  SECTION 10.19

  	
  Trustee’s
  Adjustment Disclaimer

  	
  57

  
	
  SECTION 10.20

  	
  Simultaneous
  Adjustments

  	
  58

  
	
  SECTION 10.21

  	
  Successive
  Adjustments

  	
  58

  



 


iii

















 


	
  SECTION 10.22

  	
  Rights
  Issued in Respect of Common Stock Issued Upon Conversion

  	
  58

  
	
  SECTION 10.23

  	
  Withholding
  Taxes for Adjustments in Conversion Rate

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
   

  
	
   

  	
   

  
	
  PAYMENT OF INTEREST

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.01

  	
  Interest
  Payments

  	
  59

  
	
  SECTION 11.02

  	
  Defaulted
  Interest

  	
  59

  
	
  SECTION 11.03

  	
  Interest
  Rights Preserved

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
   

  
	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.01

  	
  Trust
  Indenture Act Controls

  	
  60

  
	
  SECTION 12.02

  	
  Notices;
  Address of Agency

  	
  60

  
	
  SECTION 12.03

  	
  Communication
  by Holders with Other Holders

  	
  63

  
	
  SECTION 12.04

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
  63

  
	
  SECTION 12.05

  	
  Statements
  Required in Certificate or Opinion

  	
  63

  
	
  SECTION 12.06

  	
  Separability
  Clause

  	
  64

  
	
  SECTION 12.07

  	
  Rules by
  Trustee, Paying Agent, Conversion Agent and Registrar

  	
  64

  
	
  SECTION 12.08

  	
  Calculations

  	
  64

  
	
  SECTION 12.09

  	
  Legal Holidays

  	
  64

  
	
  SECTION 12.10

  	
  Governing
  Law

  	
  64

  
	
  SECTION 12.11

  	
  No Recourse
  Against Others

  	
  64

  
	
  SECTION 12.12

  	
  Successors

  	
  65

  
	
  SECTION 12.13

  	
  Multiple
  Originals

  	
  65

  



 


iv

















 


INDENTURE dated as of February 17, 2006 between AMGEN
INC., a Delaware corporation (the “Company”), and
JPMorgan Chase Bank, N.A., a national banking association, as trustee (“Trustee”).


 


Each party agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of the Company’s
0.125% Convertible Senior Notes due 2011 (the “Securities”):


 


ARTICLE 1



DEFINITIONS AND INCORPORATION BY REFERENCE


 


SECTION 1.01       Definitions.


 


“Additional
Interest” means all additional interest owing on the Notes pursuant to the
Registration Rights Agreement.


 


“Affiliate”
of any specified person means any other person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified person. For the purposes of this definition, “control” when used
with respect to any specified person means the power to direct or cause the
direction of the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.


 


“Applicable
Conversion Rate” means the Conversion Rate on any Trading Day, as adjusted
in accordance with Article 10. For purposes of determining the Conversion Value,
the Applicable Conversion Rate means the Conversion Rate on the Conversion
Date.


 


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


 


“Average
Closing Price” means (1) with respect to distributions of rights, warrants
or options, the average of the Closing Prices per share of Common Stock for the
five (5) consecutive Trading Days ending on the date immediately preceding the
first public announcement of the distribution and (2) with respect to other
distributions, the average of the Closing Prices per share of Common Stock for
the five (5) consecutive Trading Days ending on the date immediately preceding
the Time of Determination.


 


In the
event that the Ex-Dividend Time (or in the case of a subdivision, combination
or reclassification, the effective date with respect thereto) with respect to a
dividend, subdivision, combination or reclassification to which Section
10.06(1), (2), (3) or (5) applies occurs during the period applicable for
calculating “Average Closing Price” pursuant to the definition in the
preceding sentence, “Average Closing Price” shall be calculated for such
period in a manner determined by the Board of Directors to reflect the impact
of such dividend,


 


1

















 


subdivision, combination or reclassification on the
Closing Price of the Common Stock during such period.


 


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


 


“Business
Day” means any weekday that is not a day on which banking institutions in
the City of New York, New York are authorized or obligated to close.


 


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


 


“Certificated
Securities” means Securities that are substantially in the form of the
Securities attached hereto as Exhibit A.


 


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


 


“Closing
Price” of the Common Stock on any date means the closing per share sale
price (or, if no closing sale price is reported, the average of the bid and ask
prices or, if more than one in either case, the average of the average bid and
average ask prices) on such date as reported in composite transactions for the
principal United States securities exchange on which the Common Stock is traded
or, if the Common Stock is not listed on a United States national or regional
securities exchange, (i) as reported by the National Association of Securities
Dealers Automated Quotation System or by the National Quotation Bureau
Incorporated, or (ii) if such bid and ask prices are not reported by the
National Association of Securities Dealers Automated Quotation System or by the
National Quotation Bureau Incorporated, in a manner to be determined by the
Company on the basis of such quotation as the Company considers appropriate in
its sole and absolute discretion.


 


“Common
Stock” means the shares of common stock, $0.0001 par value, of the Company
as it exists on the date of this Indenture or any other shares of Capital Stock
of the Company into which the Common Stock shall be reclassified or changed.


 


“Company”
means the party named as the “Company” in the first paragraph of this
Indenture until a successor replaces it pursuant to the applicable provisions
of this Indenture and, thereafter, shall mean such successor. The foregoing
sentence shall likewise apply to any subsequent such successor or successors.


 


“Company
Request” or “Company Order” means a written request or order signed
in the name of the Company by any two Officers.


 


“Conversion
Date” means the date on which the Holder of the Security has complied with
all requirements under this Indenture to convert such Security.


 


“Conversion
Price” per share of Common Stock as of any day means the result obtained by
dividing $1,000 by the then Applicable Conversion Rate.


 


2

















 


“Conversion
Rate” means the number of shares of Common Stock issuable upon conversion
of a Security per $1,000 of Principal Amount thereof, subject to adjustment
pursuant to Article 10.


 


“Conversion
Reference Period” means (a) for Securities that are converted during the
period beginning on the 30th day prior to the Maturity Date, the ten
consecutive Trading Days beginning on the third Trading Day following the
Maturity Date and (b) in all other instances, the ten consecutive Trading Days
beginning on the third Trading Day following the Conversion Date.


 


“Conversion
Value” means the amount equal to the product of (a) the Applicable
Conversion Rate multiplied by (b) the average of the Volume Weighted Average
Price on each of the Trading Days during the Conversion Reference Period.


 


“Corporate
Trust Office” means the principal office of the Trustee at which at any
time its corporate trust business shall be administered, which office at the
date hereof is located at 4 New York Plaza, 15th Floor, New York, NY
10004, Attention: Worldwide Securities Services, 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 a successor Trustee may designate from time to time by
notice to the Holders and the Company).


 


“Daily
Share Amounts” means, for each Trading Day of the Conversion Reference
Period and each $1,000 Principal Amount of Securities surrendered for
conversion, a number of shares of Common Stock (but in no event less than zero)
determined by the following formula:


 


	
  (Volume Weighted Average Price per share

  of Common Stock for such Trading Day

  	
   

  	
  x

  	
   

  	
  Conversion Rate in effect

  on the Conversion Date*)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  - $1,000

  	
   

  
	
  Volume Weighted Average Price per share of Common
  Stock for such Trading Day  x  10

  	
   

  	
   

  	
   

  



 






* appropriately adjusted to take into account the
occurrence on or before such Trading Day of any event which would require an
anti-dilution adjustment.


 


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


 


“Depositary”
means DTC or the nominee thereof, or any successor thereto.


 


“DTC”
means The Depository Trust Company.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


“Global
Securities” means Securities that are in the form of the Securities
attached hereto as Exhibit A.


 


3

















 


“Holder”
or “Securityholder” means a person in whose name a Security is
registered on the Registrar’s books.


 


“Indebtedness”
means with respect to the Company at any date, without duplication, obligations
(other than nonrecourse obligations) for borrowed money or evidenced by bonds,
debentures, notes or similar instruments.


 


“Indenture”
means this Indenture, as amended or supplemented from time to time in
accordance with the terms hereof, including the provisions of the TIA that are
deemed to be a part hereof.


 


“Initial
Conversion Rate” means 12.5247 shares of Common Stock per Principal Amount
of $1,000, subject to adjustment pursuant to Article 10.


 


“Interest
Payment Date” means each date specified as such in paragraph 1 of the
Securities.


 


“Issue
Date” of any Security means the date on which the Security was originally
issued or deemed issued as set forth on the face of the Security.


 


“Market
Disruption Event” means the occurrence or existence for more than one half
hour period in the aggregate 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 Nasdaq National Market or otherwise) in
Common Stock or in any options, contracts or future contracts relating to the
Common Stock, and such suspension or limitation occurs or exists at any time
before 1:00 p.m. (New York City time) on such day.


 


“Officer”
means the Chairman of the Board, the Vice Chairman, the Chief Executive
Officer, the President, any Executive Vice President, any Senior Vice
President, any Vice President, the Treasurer or the Secretary or any Assistant
Treasurer or Assistant Secretary of the Company.


 


“Officers’
Certificate” means a written certificate containing the information specified
in Sections 12.04 and 12.05, signed in the name of the Company by any two
Officers, and delivered to the Trustee. One of the officers executing the
Officers’ Certificate pursuant to Section 4.03 shall be the principal executive
officer, financial officer or accounting officer of the Company.


 


“Opinion
of Counsel” means a written opinion containing the information specified in
Sections 12.04 and 12.05, from legal counsel who is acceptable to the Trustee.
The counsel may be an employee of, or counsel to, the Company or the Trustee.


 


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


 


“Principal
Amount” of a Security means the Principal Amount as set forth on the face
of the Security.


 


4

















 


“Protected
Purchaser” shall have the meaning set forth in Section 2.07.


 


“Registration
Rights Agreement” means the Registration Rights Agreement, dated as
of the date hereof, among the Company, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, and Morgan Stanley & Co. Incorporated on behalf of the
Initial Purchasers.


 


“Regular
Record Date” means, with respect to any Interest Payment Date, the January
15 or the July 15 immediately preceding such Interest Payment Date.


 


“Responsible
Officer” means, when used with respect to the Trustee, any officer within
the corporate trust department of the Trustee having direct responsibility for
the administration of this Indenture.


 


“Restricted
Global Security” means a Global Security that is a Restricted Security.


 


“Restricted Security” means a Security required
to bear the Legend.


 


“Rule 144” means Rule 144 under the Securities
Act or any successor to such Rule.


 


“Rule
144A” means Rule 144A under the Securities Act or any successor to such
Rule.


 


“SEC”
means the Securities and Exchange Commission.


 


“Securities”
means any of the Company’s 0.125% Convertible Senior Notes due 2011, as amended
or supplemented from time to time, issued under this Indenture.


 


“Securities
Act” means the Securities Act of 1933, as amended.


 


“Securityholder”
or “Holder” means a person in whose name a Security is registered on the
Registrar’s books.


 


“Significant
Subsidiary” means a “significant subsidiary”, as such term is
defined in Rule 1-02 of Regulation S-X under the Securities Act of 1933.


 


“Special
Record Date” means for the payment of any Defaulted Interest, the date
fixed by the Trustee pursuant to Section 11.02.


 


“Stated
Maturity,” when used with respect to any Security or any installment of
interest thereon, means the date specified in such Security as the fixed date
on which an amount equal to the Principal Amount of such Security or such
installment of interest is due and payable.


 


“Subsidiary”
means (i) a corporation, a majority of whose Voting Stock is, at the date of
determination, directly or indirectly owned by the Company, by one or more
Subsidiaries of the Company, or by the Company and one or more Subsidiaries of
the Company, (ii) a partnership in which the Company, a Subsidiary of the Company
or the Company and one or


 


5

















 


more Subsidiaries of the Company, holds a majority
interest in the equity capital or profits of such partnership, or (iii) any
other person (other than a corporation or a partnership) in which the Company,
a Subsidiary of the Company, or the Company and one or more Subsidiaries of the
Company, directly or indirectly, at the date of determination, has (x) at least
a majority ownership interest or (y) the power to elect or direct the election
of a majority of the directors or trustees, as the case may be, or other
governing body of such person.


 


“TIA”
means the Trust Indenture Act of 1939 as in effect on the date of this
Indenture, provided, however, that in the event the TIA is amended after such
date, TIA means, to the extent required by any such amendment, the TIA as so
amended.


 


“Time
of Determination” means the time and date of the earlier of (i) the
determination of stockholders entitled to receive rights, warrants or options
or a distribution, in each case, to which Sections 10.07, 10.08 or 10.10
applies and (ii) the time (“Ex-Dividend Time”) immediately prior to the
commencement of “ex-dividend” trading for such rights, warrants or options or
distribution on the Nasdaq National Market or such other national or regional
exchange or market on which the Common Stock is then listed or quoted.


 


“Trading
Day” means any day on which (i) there is no Market Disruption Event and
(ii) the Nasdaq National Market or, if the Common Stock is not quoted on the Nasdaq
National Market, the principal national securities exchange on which the Common
Stock is listed, is open for trading or, if the Common Stock is not so listed,
admitted for trading or quoted, any business day. A Trading Day only includes
those days that have a scheduled closing time of 4:00 p.m. (New York City time)
or the then standard closing time for regular trading on the relevant exchange
or trading system.


 


“Trustee”
means the party named as the “Trustee” in the first paragraph of this
Indenture until a successor replaces it pursuant to the applicable provisions
of this Indenture and, thereafter, shall mean such successor. The foregoing
sentence shall likewise apply to any subsequent such successor or successors.


 


“Volume
Weighted Average Price” means the price per share of the Common Stock on
any Trading Day as displayed on Bloomberg (or any successor service) page AMGN
<equity> VAP in respect of the period from 9:30 a.m. to 4:00 p.m. (New
York City time), on such Trading Day; or, if such price is not available, the
market value per share of the Common Stock on such day as determined by a nationally
recognized independent investment banking firm retained for this purpose by the
Company.


 


“Voting
Stock” means, with respect to any corporation, association, company or
business trust, stock or other securities of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of such corporation,
association, company or business trust, provided that, for the purposes hereof,
stock or other securities which carry only the right to vote conditionally on
the happening of an event shall not be considered Voting Stock whether or not
such event shall have happened.


 


6

















 


SECTION 1.02       Other Definitions.


 


	
  Term

  	
   

  	
  Defined in Section

  
	
  “Act”

  	
   

  	
  1.05

  
	
  “Agent Members”

  	
   

  	
  2.12(e)

  
	
  “Bankruptcy Law”

  	
   

  	
  6.01(a)

  
	
  “beneficial owner”

  	
   

  	
  3.01(a)

  
	
  “Cash Percentage”

  	
   

  	
  10.01

  
	
  “Cash Percentage Notice”

  	
   

  	
  10.01

  
	
  “Change in Control”

  	
   

  	
  3.01(a)

  
	
  “Change in Control Effective Date”

  	
   

  	
  10.11

  
	
  “Change in Control Purchase Date”

  	
   

  	
  3.01(a)

  
	
  “Change in Control Purchase Notice”

  	
   

  	
  3.01(c)

  
	
  “Change in Control Purchase Price”

  	
   

  	
  3.01(a)

  
	
  “Conversion Agent”

  	
   

  	
  2.03(a)

  
	
  “Conversion Trigger Price”

  	
   

  	
  Note

  
	
  “Custodian”

  	
   

  	
  6.01(b)

  
	
  “Defaulted Interest”

  	
   

  	
  11.02

  
	
  “Event of Default”

  	
   

  	
  6.01

  
	
  “Ex-Dividend Date”

  	
   

  	
  10.08(b)

  
	
  “Ex-Dividend Time”

  	
   

  	
  Definition of “Time of Determination”

  
	
  “Expiration Time”

  	
   

  	
  10.11

  
	
  “Initial Purchasers”

  	
   

  	
  2.01

  
	
  “Legal Holiday”

  	
   

  	
  12.09

  
	
  “Legend”

  	
   

  	
  2.12(a)

  
	
  “Make-Whole Shares”

  	
   

  	
  10.11

  
	
  “Notice of Default”

  	
   

  	
  6.01

  
	
  “Paying Agent”

  	
   

  	
  2.03(a)

  
	
  “Post-Distribution Price”

  	
   

  	
  10.08(b)

  
	
  “Public Acquirer Change in Control”

  	
   

  	
  10.12

  
	
  “Public Acquirer Change in Control Effective Date”

  	
   

  	
  10.12

  
	
  “Public Acquirer Common Stock”

  	
   

  	
  10.12

  
	
  “Purchase Agreement”

  	
   

  	
  2.01

  
	
  “Purchased Shares”

  	
   

  	
  10.10

  
	
  “QIB”

  	
   

  	
  2.01(a)

  
	
  “Registrar”

  	
   

  	
  2.03(a)

  
	
  “Remaining Shares”

  	
   

  	
  10.01

  
	
  “Required Cash Amount”

  	
   

  	
  10.01

  
	
  “Resale Restriction Termination Date”

  	
   

  	
  2.12(f)

  
	
  “Rights”

  	
   

  	
  10.22

  
	
  “Shareholders Rights Plan”

  	
   

  	
  10.22

  
	
  “Stock Price”

  	
   

  	
  10.11

  



 


7

















 


SECTION 1.03       Incorporation by Reference of Trust
Indenture Act.


 


Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:


 


“Commission”
means the SEC.


 


“indenture
securities” means the Securities.


 


“indenture
security holder” means a Securityholder.


 


“indenture
to be qualified” means this Indenture.


 


“indenture
trustee” or “institutional trustee” means the Trustee.


 


“obligor”
on the indenture securities means the Company.


 


All
other TIA terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by SEC rule have the meanings
assigned to them by such definitions.


 


SECTION 1.04       Rules of Construction.


 


Unless
the context otherwise requires:


 


(1)           a term has the meaning assigned to
it;


 


(2)           an accounting term not otherwise
defined has the meaning assigned to it in accordance with United States
generally accepted accounting principles as in effect from time to time;


 


(3)           “or” is not exclusive;


 


(4)           “including” means including,
without limitation; and


 


(5)           words in the singular include the
plural, and words in the plural include the singular.


 


SECTION 1.05       Acts of Holders.


 


Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments (which
may take the form of an electronic writing or messaging or otherwise be in
accordance with customary procedures of the Depositary or the Trustee) of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing (which may be in electronic form); and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such


 


8

















 


instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the “Act”
of Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent (either of which may
be in electronic form) shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.


 


(a)           The fact and date of the execution by
any Person of any such instrument or writing may be proved by the affidavit of
a witness of such execution (or electronic delivery) or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing or delivering such instrument or
writing acknowledged to such officer the execution thereof (or electronic
delivery). Where such execution is by a signer acting in a capacity other than
such signer’s individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer’s authority. The fact and date of
the execution of any such instrument or writing (electronic or otherwise), or
the authority of the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.


 


(b)           The ownership of Securities shall be
proved by the register for the Securities maintained by the Registrar.


 


(c)           Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of any Security
shall bind every future Holder of the same Security and the holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.


 


(d)           If the Company shall solicit from the
Holders any request, demand, authorization, direction, notice, consent, waiver
or other Act, the Company may, at its option, by or pursuant to a resolution of
the Board of Directors, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no obligation
to do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the Close of Business on
such record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of outstanding Securities have
authorized or agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the outstanding
Securities shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.


 


9

















 


ARTICLE 2



THE SECURITIES


 


SECTION 2.01       Form and Dating.


 


The
Securities and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit A, which is a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage (provided that any such notation, legend or endorsement
required by usage is in a form acceptable to the Company). The Company shall
provide any such notations, legends or endorsements to the Trustee in writing. Each
Security shall be dated the date of its authentication. The Securities are
being offered and sold by the Company pursuant to a Purchase Agreement dated
February 14, 2006 (the “Purchase Agreement”) between the Company and the
several purchasers named in Schedule A thereto (collectively, the “Initial
Purchasers”), in transactions exempt from, or not subject to, the registration
requirements of the Securities Act.


 


(a)           Restricted Global Securities. All of
the Securities are initially being offered and sold to qualified institutional
buyers as defined in Rule 144A (collectively, “QIBS” or individually,
each a “QIB”) in reliance on Rule 144A under the Securities Act and
shall be issued initially in the form of one or more Restricted Global
Securities, which shall be deposited on behalf of the purchasers of the
securities represented thereby with the Trustee, at its Corporate Trust Office,
as custodian for the depositary, The Depository Trust Company (“DTC”,
and such depositary, or any successor thereto, being hereinafter referred to as
the “Depositary”), and registered in the name of its nominee, Cede & Co.
(or any successor thereto), for the accounts of participants in the Depositary,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided.


 


(b)           Global Securities in General. Each
Global Security shall represent such of the outstanding Securities as shall be
specified therein and each shall provide that it shall represent the aggregate
Principal Amount of outstanding Securities from time to time endorsed thereon
and that the aggregate Principal Amount of outstanding Securities represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges, redemptions and conversions. Except as provided in this
Section 2.01, 2.06 or 2.12, owners of beneficial interests in Global Securities
will not be entitled to receive physical delivery of Certificated Securities.


 


Any
adjustment of the aggregate Principal Amount of a Global Security to reflect
the amount of any increase or decrease in the Principal Amount of outstanding
Securities represented thereby shall be made by the Trustee in accordance with
instructions given by the Holder thereof as required by Section 2.12 hereof and
shall be made on the records of the Trustee and the Depositary, subject in each
case to compliance with Applicable Procedures.


 


(c)           Book-Entry Provisions. This Section
2.01(c) shall apply only to Global Securities deposited with or on behalf of
the Depositary.


 


10

















 


The
Company shall execute and the Trustee shall, in accordance with this Section
2.01(c), authenticate and deliver initially one or more Global Securities that
(a) shall be registered in the name of the Depositary, (b) shall be delivered
by the Trustee to the Depositary or pursuant to the Depositary’s instructions
and (c) shall bear legends substantially to the following effect:


 


“UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO
THE ISSUER 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 THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.


 


TRANSFERS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES
OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.”


 


(d)           Certificated Securities. Securities
not issued as interests in the Global Securities will be issued in certificated
form substantially in the form of Exhibit A attached hereto.


 


SECTION 2.02       Execution and Authentication.


 


(a)           The Securities shall be executed on
behalf of the Company by any Officer. The signature of the Officer on the
Securities may be manual or facsimile.


 


(b)           Securities bearing the manual or
facsimile signatures of an individual who was at the time of the execution of
the Securities the proper Officer of the Company shall bind the Company,
notwithstanding that such individual has ceased to hold such office prior to the
authentication and delivery of such Securities or did not hold such office at
the date of authentication of such Securities.


 


(c)           No Security shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein duly executed by the Trustee by manual signature
of an authorized officer of the Trustee, and such certificate upon any Security


 


11

















 


shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.


 


(d)           Subject to the terms of Section 12.04
and 12.05 hereof, the Trustee shall authenticate and deliver Securities for
original issue in an aggregate Principal Amount of  $2,500,000,000 (subject to Section 2.07
hereof) upon a Company Order without any further action by the Company. The
aggregate Principal Amount of Securities outstanding at any time may not exceed
the amount set forth in the foregoing sentence, except as provided in Section
2.07.


 


(e)           The Securities shall be issued only
in registered form without coupons and only in denominations of $1,000 of
Principal Amount and any integral multiple thereof.


 


(f)            The Trustee shall have the right to
decline to authenticate and deliver any securities under this Section if the
Trustee, being advised by counsel, determines that such action may not be
lawfully taken or if the Trustee in good faith shall determine that such action
would expose the Trustee to personal liability to existing Holders.


 


SECTION 2.03       Registrar, Paying Agent and Conversion
Agent.


 


(a)           The Company shall maintain an office
or agency where Securities may be presented for registration of transfer or for
exchange for other Securities (“Registrar”), an office or agency where
Securities may be presented for purchase or payment (“Paying Agent”) and
an office or agency where Securities may be presented for conversion into
Common Stock (“Conversion Agent”). The Registrar shall keep a register
of the Securities and of their registration of transfer and exchange. The
Company may have one or more co-registrars, one or more additional paying
agents and one or more additional conversion agents. The term Paying Agent
includes any additional paying agent, including any named pursuant to Section
4.05. The term Conversion Agent includes any additional conversion agent,
including any named pursuant to Section 4.05.


 


(b)           The Company shall enter into an
appropriate agency agreement with any Registrar or co-registrar, Paying Agent
or Conversion Agent (other than the Trustee). The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall
notify the Trustee of the name and address of any such agent. If the Company
fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.07. The Company or any Subsidiary or an Affiliate of
either of them may act as Paying Agent, Registrar, Conversion Agent or
co-registrar.


 


(c)           The Company initially appoints the
Trustee as Registrar, Conversion Agent and Paying Agent in connection with the
Securities.


 


SECTION 2.04       Paying Agent to Hold Money and
Securities in Trust.


 


Except
as otherwise provided herein, by no later than 10:00 a.m., New York City time,
on or prior to each due date of payments in respect of any Security, the
Company shall


 


12

















 


deposit with the Paying Agent a sum of money (in
immediately available funds if deposited on the due date) or Common Stock
sufficient to make such payments when so becoming due. The Company shall
require each Paying Agent (other than the Trustee) to agree in writing that the
Paying Agent shall hold in trust for the benefit of Securityholders or the
Trustee all money and Common Stock held by the Paying Agent for the making of
payments in respect of the Securities and shall notify the Trustee of any
default by the Company in making any such payment. At any time during the
continuance of any such default, the Paying Agent shall, upon the written
request of the Trustee, forthwith pay to the Trustee all money and Common Stock
so held in trust. If the Company or a Subsidiary or an Affiliate of either of
them acts as Paying Agent, it shall segregate the money and Common Stock held
by it as Paying Agent and hold it as a separate trust fund. The Company at any
time may require a Paying Agent to pay all money and Common Stock held by it to
the Trustee and to account for any funds and Common Stock disbursed by it. Upon
doing so, the Paying Agent shall have no further liability for the money or
Common Stock.


 


SECTION 2.05       Securityholder Lists.


 


The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Securityholders.
If the Trustee is not the Registrar, the Company shall cause to be furnished to
the Trustee at least semiannually on June 1 and December 1 a listing of
Securityholders dated within 15 days of the date on which the list is furnished
and at such other times as the Trustee may request in writing a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.


 


SECTION 2.06       Transfer and Conversion.


 


Subject
to Section 2.12 hereof,


 


(a)           upon surrender for registration of
transfer of any Security, together with a written instrument of transfer
satisfactory to the Registrar duly executed by the Securityholder or such
Securityholder’s attorney duly authorized in writing, at the office or agency
of the Company designated as Registrar or co-registrar pursuant to Section
2.03, the Company shall execute, and the Trustee upon receipt of a Company
Order shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of any authorized denomination or
denominations, of a like aggregate Principal Amount. The Company shall not
charge a service charge for any registration of transfer or exchange, but the
Company or the Trustee may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges that may be imposed in
connection with the registration of transfer or exchange of the Securities from
the Securityholder requesting such registration of transfer or exchange.


 


At the
option of the Holder, Certificated Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
Principal Amount, upon surrender of the Securities to be exchanged, together
with a written instrument of transfer satisfactory to the Registrar duly
executed by the Securityholder or such Securityholder’s attorney duly authorized
in writing, at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee upon


 


13

















 


receipt of a Company Order shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.


 


The
Company shall not be required to make, and the Registrar need not register, any
Securities in respect of which a Change in Control Purchase Notice has been
given and not withdrawn by the Holder thereof in accordance with the terms of
this Indenture (except, in the case of Securities to be purchased in part, the
portion thereof not to be purchased).


 


(b)           Notwithstanding any provision to the
contrary herein, so long as a Global Security remains outstanding and is held
by or on behalf of the Depositary, transfers of a Global Security, in whole or
in part, shall be made only in accordance with Section 2.12 and this Section
2.06(b). Transfers of a Global Security shall be limited to transfers of such
Global Security in whole, or in part, to nominees of the Depositary or to a
successor of the Depositary or such successor’s nominee.


 


(c)           Successive registrations and
registrations of transfers and exchanges as aforesaid may be made from time to
time as desired, and each such registration shall be noted on the register for
the Securities.


 


(d)           Any Registrar appointed pursuant to
Section 2.03 hereof shall provide to the Trustee such information as the
Trustee may reasonably require in connection with the delivery by such
Registrar of Securities upon registration of transfer or exchange of
Securities.


 


(e)           No Registrar shall be required to
make registrations of transfer or exchange of Securities during any periods
designated in the text of the Securities or in this Indenture as periods during
which such registration of transfers and exchanges need not be made.


 


SECTION 2.07       Replacement Securities.


 


(a)           If (i) any mutilated Security is
surrendered to the Trustee, or (ii) the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any
Security, and there is delivered to the Company and the Trustee such security
or indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security has been
acquired by a protected purchaser within the meaning of Article 8 of the
Uniform Commercial Code as in effect from time to time in the State of New York
(a “Protected Purchaser”), the Company shall execute and upon a Company Request
the Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and Principal Amount, bearing a number not
contemporaneously outstanding.


 


(b)           In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and
payable, or is about to be purchased by the Company pursuant to Article 3
hereof, the Company in its discretion may, instead of issuing a new Security,
pay or purchase such Security, as the case may be.


 


(c)           Upon the issuance of any new
Securities under this Section, the Company may require the payment of a sum
sufficient to cover any tax or other governmental


 


14

















 


charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.


 


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


 


(e)           The provisions of this Section 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 Securities.


 


SECTION 2.08       Outstanding Securities; Determinations
of Holders’ Action.


 


(a)           Securities outstanding at any time
are all the Securities authenticated by the Trustee except for those cancelled
by it, those paid pursuant to Section 2.07 and delivered to it for cancellation
and those described in this Section 2.08 as not outstanding. A Security does
not cease to be outstanding because the Company or an Affiliate thereof holds
the Security; provided, however, that in determining whether the Holders of the
requisite Principal Amount of Securities have given or concurred in any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities 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 request, demand, authorization, direction,
notice, consent or waiver, only Securities which a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded. Subject to the
foregoing, only Securities outstanding at the time of such determination shall
be considered in any such determination (including, without limitation,
determinations pursuant to Articles 6 and 9).


 


(b)           If a Security is replaced pursuant to
Section 2.07, the replaced Security ceases to be outstanding unless the Trustee
and the Company receive proof satisfactory to each of them that the replaced
Security is held by a Protected Purchaser.


 


(c)           If the Paying Agent holds, in
accordance with this Indenture, on a Change in Control Purchase Date, or on
Stated Maturity, money or securities, if permitted hereunder, sufficient to pay
Securities payable on that date, then immediately after such Change in Control
Purchase Date or Stated Maturity, as the case may be, such Securities shall
cease to be outstanding and interest on such Securities shall cease to accrue
whether or not the Security is delivered to the Paying Agent.


 


(d)           If a Security is converted in
accordance with Article 10, then from and after the time of conversion on the
Conversion Date, such Security shall cease to be outstanding and interest shall
cease to accrue on such Security.


 


15

















 


SECTION 2.09       Temporary Securities.


 


(a)           Pending the preparation of definitive
Securities, the Company may execute, and the Trustee upon receipt of a Company
Order shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.


 


(b)           If temporary Securities are issued,
the Company will cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive Securities upon
surrender of the temporary Securities at the office or agency of the Company
designated for such purpose pursuant to Section 2.03, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee upon receipt of a Company
Order shall authenticate and deliver in exchange therefor a like Principal
Amount of definitive Securities of authorized denominations. Until so exchanged
the temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.


 


SECTION 2.10       Cancellation.


 


All
Securities surrendered for payment, purchase by the Company pursuant to Article
3, conversion or registration of transfer or exchange 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 Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly cancelled by the Trustee. The Company
may not issue new Securities to replace Securities it has paid or delivered to
the Trustee for cancellation or that any Holder has converted pursuant to
Article 10. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be disposed of by the Trustee in accordance with the Trustee’s customary
procedure.


 


SECTION 2.11       Persons Deemed Owners.


 


Prior
to due presentment of a Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of the Security or the payment of any
Change in Control Purchase Price in respect thereof, and interest thereon, for
the purpose of conversion and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.


 


16

















 


SECTION 2.12       Legend; Additional Transfer and
Exchange Requirements.


 


(a)           If Securities are issued upon the
transfer, exchange or replacement of Securities subject to restrictions on
transfer and bearing the legends set forth in Section 2.12(f) (collectively,
the “Legend”), or if a request is made to remove the Legend on a
Security, the Securities so issued shall bear the Legend, or the Legend shall
not be removed, as the case may be, unless there is delivered to the Company
and the Registrar such satisfactory evidence, which shall include an Opinion of
Counsel, as may be reasonably required by the Company and the Registrar, that
neither the Legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with the provisions of Rule
144A or Rule 144 under the Securities Act or that such Securities are not “restricted”
within the meaning of Rule 144 under the Securities Act; provided that no such
evidence need be supplied in connection with the sale of such Security pursuant
to a registration statement that is effective at the time of such sale. Upon
(1) provision of such satisfactory evidence if requested, or (2) notification
by the Company to the Trustee and Registrar of the sale of such Security
pursuant to a registration statement that is effective at the time of such
sale, the Trustee, upon Company Order, shall authenticate and deliver a
Security that does not bear the Legend. If the Legend is removed from the face
of a Security and the Security is subsequently held by an Affiliate of the
Company, the Legend shall be reinstated.


 


(b)           Subject to Section 2.12(c)(i) and in
compliance with Section 2.12(d), every Security shall be subject to the
restrictions on transfer provided in the Legend. Whenever any Restricted
Security other than a Restricted Global Security is presented or surrendered
for registration of transfer or in exchange for a Security registered in a name
other than that of the Holder, such Security must be accompanied by a certificate
in substantially the form set forth in Exhibit A, dated the date of such
surrender and signed by the Holder of such Security, as to compliance with such
restrictions on transfer. The Registrar shall not be required to accept for
such registration of transfer or exchange any Security not so accompanied by a
properly completed certificate.


 


(c)           Notwithstanding any other provisions
of this Indenture or the Securities, (A) transfers of a Global Security, in
whole or in part, shall be made only in accordance with Section 2.06 and
Section 2.12(c)(i), (B) transfer of a beneficial interest in a Global Security
for a Certificated Security shall comply with Section 2.06 and Section
2.12(c)(ii) below, and (C) transfers of a Certificated Security shall comply with
Section 2.06 and Section 2.12(c)(iii) and (iv) below.


 


(i)            Transfer of Global Security. A
Global Security may not be transferred, in whole or in part, to any Person
other than the Depositary or a nominee or any successor thereof, and no such
transfer to any such other Person may be registered; provided that this clause
(i) shall not prohibit any transfer of a Security that is issued in exchange
for a Global Security but is not itself a Global Security. No transfer of a
Security to any Person shall be effective under this Indenture or the
Securities unless and until such Security has been registered in the name of
such Person. Nothing in this Section 2.12(c)(i) shall prohibit or render
ineffective any transfer of a beneficial interest in a Global Security effected
in accordance with the other provisions of this Section 2.12(c).


 


17

















 


(ii)           Restrictions on Transfer of a
Beneficial Interest in a Global Security for a Certificated Security. A
beneficial interest in a Global Security may not be exchanged for a
Certificated Security except upon satisfaction of the requirements set forth
below. Upon receipt by the Trustee of a request for transfer of a beneficial
interest in a Global Security in accordance with Applicable Procedures for a
Certificated Security in the form satisfactory to the Trustee, together with
written instructions to the Trustee to make, or direct the Registrar to make,
an adjustment on its books and records with respect to such Global Security to reflect
a decrease in the aggregate Principal Amount of the Securities represented by
the Global Security, such instructions to contain information regarding the
Depositary account to be credited with such decrease, then the Trustee shall
cause, or direct the Registrar to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Registrar,
the aggregate Principal Amount of Securities represented by the Global Security
to be decreased by the aggregate Principal Amount of the Certificated Security
to be issued, shall authenticate and deliver such Certificated Security and
shall debit or cause to be debited to the account of the Person specified in
such instructions a beneficial interest in the Global Security equal to the
Principal Amount of the Certificated Security so issued.


 


(iii)          Transfer and Exchange of Certificated
Securities. When Certificated Securities are presented to the Registrar with a
request:


 


(x)                                   to
register the transfer of such Certificated Securities; or


 


(y)                                 to
exchange such Certificated Securities for an equal Principal Amount of
Certificated Securities of other authorized denominations,


 


the Registrar shall register the transfer or make the
exchange as requested if its reasonable requirements for such transaction are
met; provided, however, that the Certificated Securities surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory to the Company and
the Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.


 


(iv)          Restrictions on Transfer of a
Certificated Security for a Beneficial Interest in a Global Security. A
Certificated Security may not be exchanged for a beneficial interest in a
Global Security except upon satisfaction of the requirements set forth below.


 


Upon receipt by the Trustee of a Certificated
Security, duly endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Trustee, together with written instructions
directing the Trustee to make, or to direct the Registrar to make, an
adjustment on its books and records with respect to such Global Security to
reflect an increase in the aggregate Principal Amount of the Securities
represented by the Global Security, such instructions to contain information
regarding the Depositary account to be credited with such increase, then the
Trustee shall cancel such Certificated Security and cause, or direct the
Registrar to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Registrar, the aggregate Principal
Amount of Securities represented by the Global Security to be increased by the
aggregate Principal Amount of the Certificated Security to be exchanged,


 


18

















 


and shall credit or cause to be credited to the
account of the Person specified in such instructions a beneficial interest in
the Global Security equal to the Principal Amount of the Certificated Security
so cancelled. If no Global Securities are then outstanding, the Company shall
issue and the Trustee upon receipt of a Company Order shall authenticate a new
Global Security in the appropriate Principal Amount.


 


(d)           The restrictions imposed by the
Legend upon the transferability of any Security shall cease and terminate when
such Security has been sold pursuant to an effective registration statement
under the Securities Act or transferred in compliance with Rule 144 under the Securities
Act (or any successor provision thereto) or, if earlier, upon the expiration of
the holding period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision). Any Security as to which such
restrictions on transfer shall have expired in accordance with their terms or
shall have terminated may, upon a surrender of such Security for exchange to
the Registrar in accordance with the provisions of this Section 2.12
(accompanied, in the event that such restrictions on transfer have terminated
by reason of a transfer in compliance with Rule 144 or any successor provision,
by an Opinion of Counsel reasonably acceptable to the Company and the Registrar
and addressed to the Company and the Registrar, to the effect that the transfer
of such Security has been made in compliance with Rule 144 or such successor
provision), be exchanged for a new Security, of like tenor and aggregate
principal amount, which shall not bear the restrictive Legend. The Company
shall inform the Trustee of the effective date of any registration statement
registering the offer and sale of the Securities under the Securities Act. The
Trustee or the Registrar shall not be liable for any action taken or omitted to
be taken by it in good faith in accordance with the aforementioned Opinion of
Counsel.


 


As
used in Sections 2.12(b) and (d), the term “transfer” encompasses any sale,
pledge, transfer, hypothecation or other disposition of any Security


 


(e)           The provisions of clauses (1), (2),
(3) and (4) below shall apply only to Global Securities:


 


(1)           Notwithstanding any other provisions
of this Indenture or the Securities, except as provided in Section 2.12(c)(ii),
a Global Security shall not be exchanged in whole or in part for a Security
registered in the name of any Person other than the Depositary or one or more
nominees thereof, provided that a Global Security may be exchanged for
Securities registered in the names of any person designated by the Depositary
in the event that (i) the Depositary has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or such
Depositary has ceased to be a “clearing agency” registered under the
Exchange Act, and a successor Depositary is not appointed by the Company within
90 days, (ii) the Company decides to discontinue use of the system of
book-entry transfer through DTC (or any successor depositary); or (iii) an
Event of Default has occurred and is continuing with respect to the Securities.
Any Global Security exchanged pursuant to clause (i) or (ii) above shall be so
exchanged in whole and not in part, and any Global Security exchanged pursuant
to clause (iii) above may be exchanged in whole or from time to time in part as
directed by the Depositary. Any Security issued in exchange for a Global
Security or any portion thereof shall be a Global Security; provided that any
such Security so issued that is registered in the name of a Person other than
the Depositary or a nominee thereof shall not be a Global Security.


 


19

















 


(2)           Securities issued in exchange for a
Global Security or any portion thereof shall be issued in definitive, fully
registered form, without interest coupons, shall have an aggregate Principal
Amount equal to that of such Global Security or portion thereof to be so
exchanged, shall be registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear the applicable
legends provided for herein. Any Global Security to be exchanged in whole shall
be surrendered by the Depositary to the Trustee, as Registrar. With regard to
any Global Security to be exchanged in part, either such Global Security shall
be so surrendered for exchange or, if the Trustee is acting as custodian for
the Depositary or its nominee with respect to such Global Security, the
Principal Amount thereof shall be reduced, by an amount equal to the portion
thereof to be so exchanged, by means of an appropriate adjustment made on the
records of the Trustee. Upon any such surrender or adjustment, the Trustee
shall authenticate and deliver the Security issuable on such exchange to or
upon the order of the Depositary or an authorized representative thereof.


 


(3)           Subject to the provisions of clause
(5) below, the registered Holder may grant proxies and otherwise authorize any
Person, including Agent Members (as defined below) and persons that may hold
interests through Agent Members, to take any action which a holder is entitled
to take under this Indenture or the Securities.


 


(4)           In the event of the occurrence of any
of the events specified in clause (1) above, the Company will promptly make
available to the Trustee a reasonable supply of Certificated Securities in
definitive, fully registered form, without interest coupons.


 


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


 


(f)            Until the expiration of the holding
period applicable to sales thereof under Rule 144(k) under the Securities Act
(or any successor provision thereto), any stock certificate representing Common
Stock issued upon conversion of any Security shall bear a legend in
substantially the following form, unless such Common Stock has been sold
pursuant to a registration statement that has been declared effective under the
Securities Act (and which continues to be effective at the time of such
transfer) or transferred in compliance with Rule 144 under the Securities Act
(or any successor provision thereto), or such Common Stock has been issued upon
conversion of Securities that have been transferred pursuant to a registration
statement that has been declared effective under the Securities Act or pursuant
to Rule 144 under the Securities Act (or any successor provision thereto), or
unless otherwise agreed by the Company in writing with written notice thereof
to the transfer agent:


 


20

















 


THE COMMON STOCK
EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY,
MAY NOT BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE
SECURITIES ACT.


 


BY ITS ACQUISITION
HEREOF, THE HOLDER AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THE COMMON STOCK
EVIDENCED HEREBY PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH AMGEN INC. (THE “COMPANY”)
OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THE COMMON STOCK EVIDENCED
HEREBY (OR ANY PREDECESSOR OF THE COMMON STOCK EVIDENCED HEREBY) (THE “RESALE
RESTRICTION TERMINATION DATE”) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, OR (C) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY’S AND THE TRANSFER AGENT’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (C) PRIOR TO THE RESALE RESTRICTION TERMINATION
DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING
CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS CERTIFICATE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRANSFER AGENT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.


 


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


 


(g)           Until the expiration of the holding
period applicable to sales thereof under Rule 144(k) under the Securities Act
(or any successor provision thereto), any certificate representing any Security
shall bear a legend in substantially the following form, unless such Security
has been sold pursuant to a registration statement that has been declared
effective under the Securities Act (and which continues to be effective at the
time of such transfer) or transferred in compliance with Rule 144 under the
Securities Act (or any successor provision thereto), or unless otherwise agreed
by the Company in writing with written notice thereof to the transfer agent:


 


THE NOTES AND THE SHARES OF COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF


 


21

















 


1933, AS AMENDED (THE SECURITIES ACT), OR ANY STATE
SECURITIES LAWS. NEITHER THIS NOTE, THE SHARES OF COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.


 


BY ITS ACQUISITION HEREOF, THE HOLDER (1)
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE PRIOR TO THE DATE WHICH
IS TWO YEARS AFTER THE LATER OF THE LAST ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) ONLY (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON IT REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES,
TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.


 


Any
such Security as to which such restrictions on transfer shall have expired in
accordance with their terms or as to which the conditions for removal of the
foregoing legend set forth therein have been satisfied may, upon surrender of
the certificates representing such Security for exchange in accordance with the
procedures of the transfer agent, be exchanged for a new certificate or
certificates for a like amount of Securities, which shall not bear the
restrictive legend required by this section.


 


SECTION 2.13       CUSIP Numbers.


 


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


 


22

















 


ARTICLE 3



PURCHASES


 


SECTION 3.01       Purchase of Securities at Option of
the Holder upon Change in Control.


 


(a)           If on or prior to the date specified
in paragraph 5 of the Securities, there shall have occurred a Change in
Control, each Holder shall have the right, at such Holder’s option, to require
the Company to purchase for cash all or any portion of such Holder’s Securities
in integral multiples of $1,000 Principal Amount at a purchase price specified
in paragraph 5 of the Securities (the “Change in Control Purchase Price”),
as of the date that is no later than 35 Business Days after the occurrence of
the Change in Control but in no event prior to the date on which such Change in
Control occurs (the “Change in Control Purchase Date”), subject to
satisfaction by or on behalf of the Holder of the requirements set forth in
Section 3.01(c).


 


A “Change
in Control” shall be deemed to have occurred at such time as either of the
following events shall occur:


 


(1)           any person or group, other than the
Company, its Subsidiaries or any employee benefits plan of the Company or its
Subsidiaries, files a Schedule 13D or Schedule TO (or any successor schedule,
form or report) pursuant to the Exchange Act, disclosing that such person has
become the beneficial owner of 50% or more of the voting power of the Common
Stock then outstanding or other capital stock into which the Common Stock is
reclassified or changed; provided, however, that a person shall not be deemed
beneficial owner of, or to own beneficially, (A) any securities tendered
pursuant to a tender or exchange offer made by or on behalf of such person or
any of such person’s Affiliates until such tendered securities are accepted for
purchase or exchange thereunder, or (B) any securities if such beneficial
ownership (1) arises solely as a result of a revocable proxy delivered in
response to a proxy or consent solicitation made pursuant to the applicable
rules and regulations under the Exchange Act, and (2) is not also then
reportable on Schedule 13D (or any successor schedule) under the Exchange Act;
or


 


(2)           the Company consolidates with or
merges with or into another person (other than a Subsidiary of the Company), or
sells, conveys, transfers or leases all or substantially all of its properties
and assets to any person (other than a Subsidiary of the Company) or any person
(other than a Subsidiary of the Company) consolidates with or merges with or
into the Company, and the outstanding Voting Stock of the Company is
reclassified into, converted for or converted into the right to receive any
other property or security, provided that none of these circumstances will be a
change in control if the persons that beneficially own the Voting Stock of the
Company immediately prior to the transaction own, directly or indirectly, shares
with a majority of the total voting power of all outstanding Voting Stock of
the surviving or transferee person that are entitled to vote generally in the
election of that person’s board of directors, managers or trustees immediately
after the transaction.


 


For
purposes of defining a Change in Control:


 


23

















 


(x)                                   the
term “person” and the term “group” have the meanings given by
Section 13(d) and 14(d) of the Exchange Act or any successor provisions;


 


(y)                                 the
term “group” includes any group acting for the purpose of acquiring,
holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under
the Exchange Act or any successor provision; and


 


(z)                                   the
term “beneficial owner” is determined in accordance with Rules 13d-3 and
13d-5 under the Exchange Act or any successor provisions, except that a person
will be deemed to have beneficial ownership of all shares that person has the
right to acquire irrespective of whether that right is exercisable immediately
or only after the passage of time.


 


Notwithstanding the foregoing, it will not constitute
a Change in Control if 100% of the consideration for the Common Stock
(excluding cash payments for fractional shares and cash payments made in
respect of dissenter’s appraisal rights and cash payment of the Required Cash
Amount, if any) in the transaction or transactions constituting the Change in
Control consists of common stock traded on a United States national securities
exchange or quoted on The Nasdaq National Market, or which will be so traded or
quoted when exchanged in connection with the Change in Control, and as a result
of such transaction or transactions the Securities become convertible solely
into such common stock.


 


(b)           As promptly as practicable following
the date the Company publicly announces the Change in Control transaction, but
in no event less than 15 Business Days prior to the anticipated effective date
of a Change in Control, the Company shall mail a written notice of Change in
Control by first-class mail to the Trustee and to each Holder at their
addresses shown in the register of the Registrar (and to beneficial owners as
required by applicable law). The notice shall include a form of Change in
Control Purchase Notice to be completed by the Securityholder and shall state:


 


(1)           briefly, the events causing a Change
in Control;


 


(2)           the anticipated effective date of
such Change in Control;


 


(3)           whether such Change in Control will
also constitute a Public Acquirer Change in Control and the conversion rights
available to the Holders in connection with such Public Acquirer Change in
Control, including the period of conversion, if any, and any adjustments to the
Conversion Rate;


 


(4)           the date by which the Change in
Control Purchase Notice pursuant to this Section 3.01 must be given;


 


(5)           the Change in Control Purchase Price;


 


(6)           the Change in Control Purchase Date;


 


24

















 


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


 


(8)           the Conversion Rate and any
adjustments thereto;


 


(9)           that Securities with respect to which
a Change in Control Purchase Notice has been given by the Holder may be
converted pursuant to Article 10 hereof only if the Change in Control Purchase
Notice has been withdrawn in accordance with the terms of this Indenture;


 


(10)         the procedures a Holder must follow to
exercise rights under this Section 3.01;


 


(11)         that Securities must be surrendered to
the Paying Agent to collect payment of the Change in Control Purchase Price;


 


(12)         that the Change in Control Purchase
Price for any Security as to which a Change in Control Purchase Notice has been
duly given and not withdrawn, together with any accrued interest payable with
respect thereto, will be paid on or prior to the third Business Day following
the later of the Change in Control Purchase Date and the time of surrender of
such Security;


 


(13)         briefly, the procedures the Holder must
follow to exercise rights under this Section 3.01;


 


(14)         briefly, the conversion rights of the
Securities;


 


(15)         the procedures for withdrawing a Change
in Control Purchase Notice;


 


(16)         that, unless the Company defaults in
making payment of such Change in Control Purchase Price and interest due, if
any, interest on Securities surrendered for purchase will cease to accrue on
and after the Change in Control Purchase Date; and


 


(17)         the CUSIP number of the Securities.


 


(c)           A Holder may exercise its rights
specified in Section 3.01(a) by delivery of a written notice of purchase (a “Change
in Control Purchase Notice”) to the Paying Agent at any time prior to the Close
of Business on the Change in Control Purchase Date, stating:


 


(1)           the certificate number of the
Security which the Holder will deliver to be purchased;


 


(2)           the portion of the Principal Amount
of the Security which the Holder will deliver to be purchased, which portion
must be $1,000 or an integral multiple thereof; and


 


25

















 


(3)           that such Security shall be purchased
pursuant to the terms and conditions specified in paragraph 5 of the
Securities.


 


The
delivery of such Security to the Paying Agent prior to, on or after the Change
in Control Purchase Date (together with all necessary endorsements) at the
offices of the Paying Agent shall be a condition to the receipt by the Holder
of the Change in Control Purchase Price therefor; provided, however, that such
Change in Control Purchase Price shall be so paid pursuant to this Section 3.01
only if the Security so delivered to the Paying Agent shall conform in all
respects to the description thereof set forth in the related Change in Control
Purchase Notice.


 


The
Company shall purchase from the Holder thereof, pursuant to this Section 3.01,
a portion of a Security if the Principal Amount of such portion is $1,000 or an
integral multiple of $1,000. Provisions of this Indenture that apply to the
purchase of all of a Security also apply to the purchase of such portion of
such Security.


 


Any
purchase by the Company contemplated pursuant to the provisions of this Section
3.01 shall be consummated by the delivery of the consideration to be received
by the Holder (together with accrued and unpaid interest) on or prior to the
third Business Day following the later of the Change in Control Purchase Date and
the time of delivery of the Security to the Paying Agent in accordance with
this Section 3.01.


 


Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the
Change in Control Purchase Notice contemplated by this Section 3.01(c) shall
have the right to withdraw such Change in Control Purchase Notice at any time
prior to the Close of Business on the Change in Control Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section 3.02.


 


The
Paying Agent shall promptly notify the Company of the receipt by it of any
Change in Control Purchase Notice or written withdrawal thereof.


 


The
Company shall not be required to comply with this Section 3.01 if a third party
mails a written notice of Change in Control in the manner, at the times and
otherwise in compliance with this Section 3.01 and repurchases all Securities
for which a Change in Control Purchase Notice shall be delivered and not
withdrawn.


 


SECTION 3.02       Effect of Change in Control Purchase
Notice.


 


Upon
receipt by the Paying Agent of the Change in Control Purchase Notice specified
in Section 3.01(c), the Holder of the Security in respect of which such Change
in Control Purchase Notice was given shall (unless such Change in Control
Purchase Notice is withdrawn as specified in the following two paragraphs)
thereafter be entitled to receive solely the Change in Control Purchase Price
and any accrued and unpaid interest, with respect to such Security. Such Change
in Control Purchase Price and interest shall be paid to such Holder, subject to
receipt of funds by the Paying Agent, on or prior to the third Business Day
following the later of (x) the Change in Control Purchase Date, with respect to
such Security (provided the conditions in Section 3.01(c) have been satisfied)
and (y) the time of delivery of such Security to the Paying Agent by the Holder
thereof in the manner required by Section 3.01(c). Securities in


 


26

















 


respect of which a Change in Control Purchase Notice
has been given by the Holder thereof may not be converted pursuant to Article
10 hereof on or after the date of the delivery of such Change in Control
Purchase Notice unless such Change in Control Purchase Notice has first been
validly withdrawn as specified in the following two paragraphs.


 


A
Change in Control Purchase Notice may be withdrawn by means of a written notice
of withdrawal delivered to the office of the Paying Agent in accordance with
the Change in Control Purchase Notice at any time prior to the Close of
Business on the Change in Control Purchase Date specifying:


 


(1)           the certificate number of the
Security in respect of which such notice of withdrawal is being submitted,


 


(2)           the Principal Amount of the Security
with respect to which such notice of withdrawal is being submitted, and


 


(3)           the Principal Amount, if any, of such
Security which remains subject to the original Change in Control Purchase
Notice and which has been or will be delivered for purchase by the Company.


 


A
written notice of withdrawal of a Change in Control Purchase Notice may be in
the form set forth in the preceding paragraph.


 


There
shall be no purchase of any Securities pursuant to 3.01 if there has occurred
(prior to, on or after, as the case may be, the giving, by the Holders of such
Securities, of the required Change in Control Purchase Notice) and is
continuing an Event of Default (other than a default in the payment of the
Change in Control Purchase Price). The Paying Agent will promptly return to the
respective Holders thereof any Securities (x) with respect to which a Change in
Control Purchase Notice has been withdrawn in compliance with this Indenture,
or (y) held by it during the continuance of an Event of Default (other than a default
in the payment of the Change in Control Purchase Price) in which case, upon
such return, the Change in Control Purchase Notice with respect thereto shall
be deemed to have been withdrawn.


 


SECTION 3.03       Deposit of Change in Control Purchase
Price.


 


Prior
to 10:00 a.m. (New York City time) on or prior to the third Business Day
following the Change in Control Purchase Date, as the case may be, the Company
shall deposit with the Trustee or with the Paying Agent (or, if the Company or
a Subsidiary or an Affiliate of either of them is acting as the Paying Agent,
shall segregate and hold in trust as provided in Section 2.04) an amount of
money (in immediately available funds if deposited on such Business Day)
sufficient to pay the aggregate Change in Control Purchase Price of all the
Securities or portions thereof which are to be purchased as of the Change in
Control Purchase Date.


 


SECTION 3.04       Securities Purchased in Part.


 


Any
Security which is to be purchased only in part shall be surrendered at the
office of the Paying Agent (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


 


27

















 


executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder in aggregate Principal Amount equal to, and in
exchange for, the portion of the Principal Amount of the Security so
surrendered which is not purchased.


 


SECTION 3.05       Covenant to Comply With Securities
Laws Upon Purchase of Securities.


 


In
connection with any offer to purchase or purchase of Securities under Section
3.01 hereof (provided that such offer or purchase constitutes an “issuer
tender offer” for purposes of Rule 13e-4 (which term, as used herein,
includes any successor provision thereto) under the Exchange Act at the time of
such offer or purchase), the Company shall, to the extent required by law, (i)
comply with Rule 13e-4, Rule 14e-1 and any other tender offer rules under the
Exchange Act which may then apply and (ii) otherwise comply with all Federal
and state securities laws so as to permit the rights and obligations under 3.01
to be exercised in the time and in the manner specified in Section 3.01.


 


SECTION 3.06       Repayment to the Company.


 


The
Trustee and the Paying Agent shall return to the Company any cash that remains
unclaimed as provided in paragraph 10 of the Securities, together with interest
thereon (subject to the provisions of Section 7.01(f)), held by them for the
payment of the Change in Control Purchase Price; provided, however, that to the
extent that the aggregate amount of cash deposited by the Company pursuant to
Section 3.03 exceeds the aggregate Change in Control Purchase Price, with
respect to, the Securities or portions thereof which the Company is obligated
to purchase as of the Change in Control Purchase Date, whether as a result of
withdrawal or otherwise, then promptly after the Business Day following the
Change in Control Purchase Date, the Trustee shall return any such excess to
the Company together with interest thereon (subject to the provisions of
Section 7.01(f)).


 


ARTICLE 4



COVENANTS


 


SECTION 4.01       Payment of Securities.


 


The
Company shall promptly make all payments of principal of, premium, if any, and
interest in respect of the Securities on the dates and in the manner provided
in the Securities or pursuant to this Indenture. Any amounts to be given to the
Trustee or Paying Agent, shall be deposited with the Trustee or Paying Agent by
10:00 a.m., New York City time, by the Company. Principal Amount, Change in
Control Purchase Price, and interest, shall be considered paid on the
applicable date due if on such date (or, in the case of a Change in Control
Purchase Price, on or prior to the third Business Day following the applicable
Change in Control Purchase Date) the Trustee or the Paying Agent holds, in
accordance with this Indenture, money or securities, if permitted hereunder,
sufficient to pay all such amounts then due. All references in this indenture
to “interest” shall include Additional Interest, if any. The Company shall pay


 


28

















 


all Additional Interest, if any, in the same manner on
the dates set forth in the Securities and in the amounts set forth in the
Registration Rights Agreement.


 


The
Company shall, to the extent permitted by law, pay interest on overdue amounts
at the rate per annum set forth in paragraph 1 of the Securities, compounded
semiannually, which interest shall accrue from the date such overdue amount was
originally due to the date payment of such amount, including interest thereon,
has been made or duly provided for.


 


SECTION 4.02       SEC and Other Reports.


 


The
Company shall deliver to the Trustee, within 15 days after it files such annual
and quarterly reports, information, documents and other reports with the SEC,
copies of its annual report and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. In the event the Company
is at any time no longer subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, it shall continue to provide the Trustee with
reports containing substantially the same information as would have been
required to be filed with the SEC had the Company continued to have been
subject to such reporting requirements. In such event, such reports shall be
provided at the times the Company would have been required to provide reports
had it continued to have been subject to such reporting requirements. The
Company also shall comply with the other provisions of TIA Section 314(a).
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee’s receipt of the same 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 4.03       Compliance Certificate.


 


The
Company shall deliver to the Trustee within 120 days after the end of each
fiscal year of the Company (beginning with the fiscal year ending on December
31, 2006) an Officers’ Certificate, stating whether or not to the knowledge of
the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture (without
regard to any period of grace or requirement of notice provided hereunder) and
if the Company shall be in default, specifying all such defaults and the nature
and status thereof of which they may have knowledge.


 


SECTION 4.04       Maintenance of Office or Agency.


 


The
Company will maintain an office or agency of the Trustee, Registrar, Paying
Agent and Conversion Agent where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer,
exchange for other Securities, purchase or conversion for Common Stock and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Trustee’s office specified in Section
12.02 shall initially be such office or agency for all of the aforesaid


 


29

















 


purposes. The Company shall give prompt written notice
to the Trustee of the location, and of any change in the location, of any such
office or agency (other than a change in the location of the office of 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 address of the Trustee set forth in Section 12.02.


 


The
Company may also from time to time designate one or more other offices or
agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations.


 


ARTICLE 5



SUCCESSOR CORPORATION


 


SECTION 5.01       When Company May Merge or Transfer
Assets.


 


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


 


(a)           either (1) the Company shall be the
continuing corporation or (2) the person (if other than the Company) formed by
such consolidation or into which the Company is merged or the person which
acquires by conveyance, transfer or lease all or substantially all the
properties and assets of the Company (i) shall be organized and validly
existing under the laws of the United States, any State thereof or the District
of Columbia and (ii) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all of the obligations of the Company under the Securities and this
Indenture;


 


(b)           immediately after giving effect to
such transaction, no Default shall have occurred and be continuing; and


 


(c)           the Company shall have 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 5 and that all conditions
precedent herein provided for relating to such transaction have been satisfied.


 


For
purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of the properties and assets of one or more Subsidiaries (other than
to the Company or another Subsidiary), which, if such assets were owned by the
Company, would constitute all or substantially all of the properties and assets
of the Company, shall be deemed to be the transfer of all or substantially all
of the properties and assets of the Company.


 


The
successor person formed by such consolidation or into which the Company is merged
or the successor person 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 had been named as the Company


 


30

















 


herein; and thereafter, except in the case of a lease
and obligations the Company may have under a supplemental indenture pursuant to
Section 10.17, the Company shall be discharged from all obligations and
covenants under this Indenture and the Securities. Subject to Section 9.06, the
Company, the Trustee and the successor person shall enter into a supplemental
indenture to evidence the succession and substitution of such successor person and
such discharge and release of the Company.


 


ARTICLE 6



DEFAULTS AND REMEDIES


 


SECTION 6.01       Events of Default.


 


An “Event
of Default” occurs if:


 


(1)           the Company defaults in the payment
of the Principal Amount or Change in Control Purchase Price on any Security
when the same becomes due and payable at its Stated Maturity, upon declaration,
when due for purchase by the Company or otherwise;


 


(2)           the Company defaults in payment of
any interest due on the Securities, which default continues for 30 days;


 


(3)           the Company fails to comply with any
of its agreements in the Securities or this Indenture (other than those
referred to in clauses (1) and (2) above) and such failure continues for 60
days after receipt by the Company of a Notice of Default (as defined below);


 


(4)           (a) the Company fails to make any
payment by the end of any applicable grace period after maturity of Indebtedness
in an amount in excess of $50,000,000 and continuance of such failure, or (b)
the acceleration of Indebtedness has occurred in an amount in excess of
$50,000,000 because of a default with respect to such Indebtedness without such
Indebtedness having been discharged or such acceleration having been cured,
waived, rescinded or annulled, in the case of (a) above, for a period of 30 days
after receipt by the Company of a Notice of Default; provided, however, that if
any such failure or acceleration referred to in (a) or (b) above shall cease or
be cured, waived, rescinded or annulled, then the Event of Default by reason
thereof shall be deemed not to have occurred; or


 


(5)           the Company or any Significant
Subsidiary, pursuant to or under or within the meaning of any Bankruptcy Law:


 


(A)          commences a voluntary case or
proceeding;


 


(B)           consents to the entry of an order for
relief against it in an involuntary case or proceeding or the commencement of
any case against it;


 


(C)           consents to the appointment of a
Custodian of it or for any substantial part of its property;


 


31

















 


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


 


(E)           files a petition in bankruptcy or
answer or consent seeking reorganization or relief; or


 


(F)           consents to the filing of such
petition or the appointment of or taking possession by a Custodian; or


 


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


 


(A)          is for relief against the Company or
any Significant Subsidiary in an involuntary case or proceeding, or adjudicates
the Company or any Significant Subsidiary insolvent or bankrupt;


 


(B)           appoints a Custodian of the Company
or any Significant Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or any Significant
Subsidiary;


 


and the order or decree remains unstayed and in effect for 60 days.


 


(a)           “Bankruptcy Law” means Title
11, United States Code, or any similar Federal or state law for the relief of
debtors.


 


(b)           “Custodian” means any
receiver, trustee, assignee, liquidator, custodian or similar official under
any Bankruptcy Law.


 


A
Default under clause (3) or clause (4) above is not an Event of Default until
the Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount of the Securities at the time outstanding notify the Company
and the Trustee, of the Default and the Company does not cure such Default (and
such Default is not waived) within the time specified in clause (3) or clause
(4) above after actual receipt of such notice. Any such notice must specify the
Default, demand that it be remedied and state that such notice is a “Notice
of Default”.


 


The
Company shall deliver to the Trustee, within 30 days after it becomes aware of
the occurrence thereof, written notice of any event which with the giving of
notice or the lapse of time, or both, would become an Event of Default under
clause (3) or clause (4) above, its status and what action the Company is
taking or proposes to take with respect thereto.


 


SECTION 6.02       Acceleration.


 


If an
Event of Default (other than an Event of Default specified in Section 6.01(5)
or (6) in respect of the Company) occurs and is continuing, the Trustee by
Notice to the Company, or the Holders of at least 25% in aggregate Principal
Amount of the Securities at the time outstanding by notice to the Company and
the Trustee, may declare the Principal Amount through the date of declaration,
and any accrued and unpaid interest through the date of such declaration, on
all the Securities to be immediately due and payable. Upon such a declaration,


 


32

















 


such Principal Amount, and such accrued and unpaid
interest if any, shall be due and payable immediately. If an Event of Default
specified in Section 6.01(5) or (6) in respect of the Company occurs and is
continuing, the Principal Amount plus accrued and unpaid interest if any, on
all the Securities shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Securityholders. The
Holders of a majority in aggregate Principal Amount of the Securities at the
time outstanding, by notice to the Trustee (and without notice to any other
Securityholder) may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of the Principal
Amount that have become due solely as a result of acceleration and if all
amounts due to the Trustee under Section 7.07 have been paid. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.


 


SECTION 6.03       Other Remedies.


 


If an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of the Principal Amount plus any accrued and
unpaid interest if any, on the Securities or to enforce the performance of any
provision of the Securities or this Indenture. The Trustee may maintain a
proceeding even if the Trustee does not possess any of the Securities or does
not produce any of the Securities in the proceeding. A delay or omission by the
Trustee or any Securityholder in exercising any right or remedy accruing upon
an Event of Default shall not impair the right or remedy or constitute a waiver
of, or acquiescence in, the Event of Default. Except as set forth in Section
2.07 hereof, no remedy is exclusive of any other remedy. All available remedies
are cumulative.


 


SECTION 6.04       Waiver of Past Defaults.


 


Subject
to Section 6.02, the Holders of a majority in aggregate Principal Amount of the
Securities at the time outstanding, by notice to the Trustee (and without
notice to any other Securityholder), may waive an existing or past Default and
its consequences except (1) an Event of Default described in Section 6.01(1) or
(2), or (2) a Default in respect of a provision that under Section 9.02 cannot
be amended without the consent of each Securityholder affected. When a Default
is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right. This Section 6.04
shall be in lieu of Section 316(a)1(A) of the TIA and such Section 316(a)1(A)
is hereby expressly excluded from this Indenture, as permitted by the TIA.


 


SECTION 6.05       Control by Majority.


 


The
Holders of a majority in aggregate Principal Amount of the Securities at the
time outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust
or power conferred on the Trustee. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture or that the Trustee
determines in good faith is unduly prejudicial to the rights of other
Securityholders or could, in reasonable likelihood, impose personal liability
upon the Trustee unless the Trustee is offered indemnity satisfactory to it.
This Section 6.05 shall be in lieu of 


 


33

















 


Section 316(a)1(B) of the TIA and such Section
316(a)1(B) is hereby expressly excluded from this Indenture, as permitted by
the TIA.


 


SECTION 6.06       Limitation on Suits.


 


A
Securityholder may not pursue any remedy with respect to this Indenture or the
Securities unless:


 


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


 


(2)           the Holders of at least 25% in
aggregate Principal Amount of the Securities at the time outstanding make a
written request to the Trustee to pursue the remedy;


 


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


 


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


 


(5)           the Holders of a majority in
aggregate Principal Amount of the Securities at the time outstanding do not
give the Trustee a direction inconsistent with the request during such 60-day
period.


 


A
Securityholder may not use this Indenture to prejudice the rights of any other
Securityholder or to obtain a preference or priority over any other
Securityholder.


 


SECTION 6.07       Rights of Holders to Receive Payment.


 


Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of the Principal Amount, Change in Control Purchase Price, and interest
in respect of the Securities held by such Holder, on or after the respective
due dates expressed in the Securities, and to convert the Securities in
accordance with Article 10, or to bring suit for the enforcement of any such
payment on or after such respective dates or the right to convert, shall not be
impaired or affected adversely without the consent of such Holder.


 


SECTION 6.08       Collection Suit by Trustee.


 


If an
Event of Default described in Section 6.01(1) or (2) occurs and is continuing,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount owing with respect to the
Securities and the amounts provided for in Section 7.07.


 


SECTION 6.09       Trustee May File Proofs of Claim.


 


In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the


 


34

















 


Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the Principal Amount, Change in Control
Purchase Price, and interest in respect of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment
of any such amount) shall be entitled and empowered, by intervention in such proceeding
or otherwise,


 


(a)           to file and prove a claim for the
whole amount of the Principal Amount, Change in Control Purchase Price, or
interest and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel or any other amounts due the Trustee under
Section 7.07) and of the Holders allowed in such judicial proceeding, and


 


(b)           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 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 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 7.07.


 


Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
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 6.10       Priorities.


 


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


 


FIRST: to the Trustee for
amounts due under Section 7.07;


 


SECOND: to
Securityholders for amounts due and unpaid on the Securities for the Principal
Amount, Change in Control Purchase Price and interest, ratably, without
preference or priority of any kind, according to such amounts due and payable
on the Securities; and


 


THIRD: the balance, if
any, to the Company.


 


The
Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Securityholder and the Company a
notice that states the record date, the payment date and the amount to be paid.


 


35

















 


SECTION 6.11       Undertaking for Costs.


 


In any
suit for the enforcement of any right or remedy under this Indenture or in any
suit against the Trustee for any action taken or omitted by it as Trustee, a
court in its discretion may require the filing by any party litigant in the
suit (other than the Trustee) of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys’ fees and expenses, against any party litigant in the suit
(other than the Trustee), having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit
by Holders of more than 10% in aggregate Principal Amount of the Securities at
the time outstanding. This Section 6.11 shall be in lieu of Section 315(e) of
the TIA and such Section 315(e) is hereby expressly excluded from this
Indenture, as permitted by the TIA.


 


SECTION 6.12       Waiver of Stay, Extension or Usury
Laws.


 


The
Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury or other
law wherever enacted, now or at any time hereafter in force, which would
prohibit or forgive the Company from paying all or any portion of the Principal
Amount, Change in Control Purchase Price and interest in respect of Securities,
or any interest on such amounts, as contemplated herein, or which 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 will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.


 


ARTICLE 7



TRUSTEE


 


SECTION 7.01       Duties of Trustee.


 


(a)           If an Event of Default has occurred
and is continuing, the Trustee shall exercise the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
as a prudent person would exercise or use under the circumstances in the
conduct of such person’s own affairs.


 


(b)           Except during the continuance of an
Event of Default:


 


(1)           the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others; and


 


(2)           in the absence of bad faith on its
part, the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificate or
opinion furnished to the Trustee and conforming to the requirements of this
Indenture, but in case of any such certificates or opinions which by any


 


36

















 


provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall examine the certificates and
opinions 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.


 


This
Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and such Section
315(a) is hereby expressly excluded from this Indenture, as permitted by the
TIA.


 


(c)           The Trustee may not be relieved from
liability for its own negligent action, its own negligent failure to act or its
own willful misconduct, except that:


 


(1)           this paragraph (c) does not limit the
effect of paragraph (b) of this Section 7.01;


 


(2)           the Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer unless it is
proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant
to Section 6.05.


 


Subparagraphs
(c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1), 315(d)(2) and
315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and 315(d)(3) are
hereby expressly excluded from this Indenture, as permitted by the TIA.


 


(d)           Every provision of this Indenture
that in any way relates to the Trustee is subject to paragraphs (a), (b), (c)
and (e) of this Section 7.01.


 


(e)           The Trustee may refuse to perform any
duty or exercise any right or power or extend or risk its own funds or
otherwise incur any financial liability unless it receives indemnity
satisfactory to it against any loss, liability or expense.


 


(f)            Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee (acting in any capacity hereunder) shall be under no
liability for interest on any money received by it hereunder unless otherwise
agreed in writing with the Company.


 


SECTION 7.02       Rights of Trustee.


 


Subject
to its duties and responsibilities under the provisions of Section 7.01, and,
except as expressly excluded from this Indenture pursuant to said Section 7.01,
subject also to its duties and responsibilities under the TIA:


 


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


 


37

















 


(b)           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, request and conclusively rely upon an
Officers’ Certificate;


 


(c)           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;


 


(d)           the Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by it in good faith which it
believes to be authorized or within its rights or powers conferred under this
Indenture;


 


(e)           the Trustee may consult with counsel
selected by it and any advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;


 


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


 


(g)           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 may be
sufficiently evidenced by a resolution of the Board of Directors;


 


(h)           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, including, without limitation, any
Company Request, Company Order or Officers’ Certificate, 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 or lack thereof;


 


(i)            the Trustee shall not be deemed to
have notice of any Default or Event of Default unless a Responsible Officer of
the Trustee received written notice of an event which is in fact such a Default
or Event of Default, and such notice references the Securities and this
Indenture, describes the event with specificity, and alleges that the
occurrence of this event is a Default or an Event of Default under this
Indenture;


 


(j)            the rights, privileges, protections,
immunities and benefits given to the Trustee, including, without limitation,
its right to be indemnified, are extended to, and shall


 


38

















 


be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person employed to
act hereunder;


 


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


 


(l)            the permissive rights of the Trustee
enumberated herein shall not be construed as duties.


 


SECTION 7.03       Individual Rights of Trustee.


 


The
Trustee in its individual or any other capacity may become the owner or pledgee
of Securities and may otherwise deal with the Company or its Affiliates with
the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar, Conversion Agent or co-registrar may do the same with like rights.
However, the Trustee must comply with Section 7.10.


 


SECTION 7.04       Trustee’s Disclaimer.


 


The
Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the Company’s use
or application of the proceeds from the Securities, it shall not be responsible
for any statement in the registration statement for the Securities under the
Securities Act or in the Indenture or the Securities (other than its
certificate of authentication), or the determination as to which beneficial
owners are entitled to receive any notices hereunder.


 


SECTION 7.05       Notice of Defaults.


 


If a
Default occurs and if it is known to the Trustee, the Trustee shall give to
each Securityholder notice of the Default within 90 days after the Trustee
gains knowledge of the Default unless such Default shall have been cured or waived
before the giving of such notice. Except in the case of a Default described in
Section 6.01(1) or (2), the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Securityholders. The second sentence of this
Section 7.05 shall be in lieu of the proviso to Section 315(b) of the TIA and
such proviso is hereby expressly excluded from this Indenture, as permitted by
the TIA. The Trustee shall not be deemed to have knowledge of a Default unless
a Responsible Officer of the Trustee has received written notice of such
Default in the manner described in Section 7.02(i).


 


SECTION 7.06       Reports by Trustee to Holders.


 


(1)           Within 60 days after each May 15 beginning
with the May 15 following the date of this Indenture, the Trustee shall
transmit to each Securityholder such reports as may be required under Section
313 of the TIA.


 


39

















 


SECTION 7.07       Compensation and Indemnity.


 


The
Company agrees:


 


(a)           to pay to the Trustee from time to
time such reasonable 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 (to the extent permitted by law) by any
provision of law in regard to the compensation of a trustee of an express
trust);


 


(b)           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, advances and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and


 


(c)           to indemnify the Trustee or any
predecessor Trustee and their agents for, and to hold them harmless against,
any loss, damage, claim, liability, cost or expense (including reasonable
attorney’s fees and expenses and taxes (other than taxes based upon, measured
by or determined by the income of the Trustee)) reasonably incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the reasonable costs and
expenses of defending itself against any claim (whether asserted by the Company
or any Holder or any other Person) or liability in connection with the
acceptance, exercise or performance of any of its powers or duties hereunder.


 


To
secure the Company’s payment obligations in this Section 7.07, Holders shall
have been deemed to have granted to the Trustee a lien prior to the Securities
on all money or property held or collected by the Trustee, except that held in
trust to pay the Principal Amount, Change in Control Purchase Price, or
interest, as the case may be, on particular Securities.


 


The
Company’s payment obligations pursuant to this Section 7.07 shall survive the
discharge of this Indenture and the resignation or removal of the Trustee. When
the Trustee incurs expenses after the occurrence of a Default specified in
Section 6.01(5) or (6), its expenses including the reasonable charges and
expenses of its counsel, are intended to constitute expenses of administration
under any Bankruptcy Law.


 


SECTION 7.08       Replacement of Trustee.


 


The
Trustee may resign by so notifying the Company; provided, however, no such
resignation shall be effective until a successor Trustee has accepted its
appointment pursuant to this Section 7.08. The Holders of a majority in
aggregate Principal Amount of the Securities at the time outstanding may remove
the Trustee by so notifying the Trustee and the Company. The Company shall
remove the Trustee if:


 


(1)           the Trustee fails to comply with
Section 7.10;


 


(2)           the Trustee is adjudged bankrupt or
insolvent;


 


40

















 


(3)           a receiver or public officer takes
charge of the Trustee or its property; or


 


(4)           the Trustee otherwise becomes
incapable of acting.


 


If the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Company shall promptly appoint, by resolution of the Board
of Directors, a successor Trustee.


 


A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company satisfactory in form and substance to the
retiring Trustee and the Company. Thereupon the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Securityholders. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided for in Section 7.07.


 


If a
successor Trustee does not take office within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of a majority in aggregate Principal Amount of the Securities at the time outstanding
may petition any court of competent jurisdiction at the expense of the Company
for the appointment of a successor Trustee.


 


If the
Trustee fails to comply with Section 7.10, any Securityholder may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.


 


The
resignation or removal of a Trustee shall not diminish, impair or terminate its
rights to indemnification pursuant to Section 7.07 as they relate to periods
prior to such resignation or removal.


 


SECTION 7.09       Successor Trustee by Merger.


 


If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.


 


SECTION 7.10       Eligibility; Disqualification.


 


There
shall at all times be a Trustee hereunder which shall be eligible to act as
Trustee and shall have a combined capital and surplus of at least $50,000,000.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of federal, state, territorial or District of
Columbia supervising or examining authority, then, for the purposes of this Section
7.10, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section 7.10, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article 7.


 


41

















 


ARTICLE 8



DISCHARGE OF INDENTURE


 


SECTION 8.01       Discharge of Liability on Securities.


 


When
(i) the Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.07) for cancellation or (ii) all
outstanding Securities have become due and payable and the Company deposits
with the Trustee, the Paying Agent (if the Paying Agent is not the Company or
any Subsidiary or any Affiliate of either of them) or the Conversion Agent cash
or, if expressly permitted by the terms of the Securities and the Indenture,
Common Stock (solely to satisfy the rights of Holders granted in Article 10) or
governmental obligations sufficient to pay all amounts due and owing on all
outstanding Securities (other than Securities replaced pursuant to Section
2.07), and if in either case the Company pays all other sums payable hereunder
by the Company, then this Indenture shall, subject to Section 7.07, cease to be
of further effect. The Trustee shall join in the execution of a document
prepared by the Company acknowledging satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers’ Certificate stating
that the consideration being given is expressly permitted by the terms of the Securities
and that all conditions precedent to the discharge of the Indenture have been
complied with by the Company and an Opinion of Counsel that such satisfaction
and discharge does not violate the terms of this Indenture or the Securities, and
at the cost and expense of the Company. The Trustee shall be allowed to
conclusively rely on such Officers’ Certificate.


 


SECTION 8.02       Repayment to the Company.


 


The
Trustee and the Paying Agent shall return to the Company upon written request
any money or securities held by them for the payment of any amount with respect
to the Securities that remains unclaimed for two years, subject to applicable
unclaimed property law. After return to the Company, Holders entitled to the
money or securities must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another person and the
Trustee and the Paying Agent shall have no further liability to the
Securityholders with respect to such money or securities for that period
commencing after the return thereof.


 


ARTICLE 9



AMENDMENTS


 


SECTION 9.01       Without Consent of Holders.


 


The
Company and the Trustee may amend this Indenture or the Securities without the
consent of any Securityholder:


 


(1)           to cure any ambiguity, omission,
defect or inconsistency;


 


(2)           to comply with Article 5 or Section
10.17;


 


42

















 


(3)           to secure the Company’s obligations
under the Securities and this Indenture;


 


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


 


(5)           to make any change to comply with the
TIA, or any amendment thereto, or to comply with any requirement of the SEC in
connection with the qualification of the Indenture under the TIA, or as
necessary in connection with the registration of the Securities under the
Securities Act if at any time the Company seeks to register the Securities
thereunder; or


 


(6)           to make any change that does not
adversely affect the rights of any Holder.


 


No
amendment to cure any ambiguity, omission, defect or inconsistency in this
Indenture made solely to conform the Indenture to the description of the
Securities contained in the offering memorandum pursuant to which the
Securities have been initially offered shall be deemed to adversely affect the
interests of the Holders.


 


SECTION 9.02       With Consent of Holders.


 


With
the written consent of the Holders of at least a majority in aggregate
Principal Amount of the Securities at the time outstanding, the Company and the
Trustee may amend this Indenture or the Securities. However, without the
consent of each Securityholder affected, an amendment to this Indenture or the
Securities may not:


 


(1)           reduce the Principal Amount, or Change
in Control Purchse Price with respect to or any premium or interest on any
Security;


 


(2)           make any Security payable in money or
securities other than that stated in the Security;


 


(3)           change the Stated Maturity of any
Security;


 


(4)           make any change that adversely
affects the right of a Holder to convert any Security;


 


(5)           make any change that adversely
affects the right to require the Company to purchase the Securities in
accordance with the terms thereof and this Indenture;


 


(6)           impair the right to convert or
receive payment with respect to, a Security, or right to institute suit for the
enforcement of any payment with respect to, or conversion of, the Securities;
or


 


(7)           make any change in Section 6.04,
Section 6.07 or this Section 9.02, except to increase any percentage set forth
therein.


 


43

















 


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


 


After
an amendment under this Section 9.02 becomes effective, the Company shall mail
to each Holder a notice briefly describing the amendment. Failure to mail such
notice or a defect in the notice shall not affect the validity of the
amendment.


 


SECTION 9.03       Compliance with Trust Indenture Act.


 


Every
supplemental indenture executed pursuant to this Article shall comply with the
TIA.


 


SECTION 9.04       Revocation and Effect of Consents,
Waivers and Actions.


 


Until
an amendment, waiver or other action by Holders becomes effective, a consent
thereto by a Holder of a Security hereunder is a continuing consent by the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same obligation as the consenting Holder’s Security, even if
notation of the consent, waiver or action is not made on the Security. However,
any such Holder or subsequent Holder may revoke the consent, waiver or action
as to such Holder’s Security or portion of the Security if the Trustee receives
the notice of revocation before the date the amendment, waiver or action
becomes effective. After an amendment, waiver or action becomes effective, it
shall bind every Securityholder.


 


SECTION 9.05       Notation on or Exchange of Securities.


 


Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding
Securities.


 


SECTION 9.06       Trustee to Sign Supplemental
Indentures.


 


The
Trustee shall sign any supplemental indenture authorized pursuant to this
Article 9 if the amendment contained therein does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign such supplemental indenture. In signing such
supplemental indenture the Trustee shall receive, and (subject to the
provisions of Section 7.01) shall be fully protected in relying upon, in
addition to the documents required by Section 12.04, an Officers’ Certificate
and an Opinion of Counsel stating that such amendment is authorized or
permitted by this Indenture.


 


44

















 


SECTION 9.07       Effect of Supplemental Indentures.


 


Upon
the execution of any supplemental indenture under this Article, 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 of
Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.


 


ARTICLE 10



CONVERSION


 


SECTION 10.01     Conversion Privilege.


 


A
Holder of a Security may convert such Security at any time during the period
stated in paragraph 6 of the Securities upon the occurrence of any of the
events set forth in paragraph 6 of the Securities, subject to the provisions of
this Article 10. Subject to certain exceptions described in paragraph 6 of the
Securities, if a Holder surrenders its Securities for conversion, such holder
will receive, in respect of each $1,000 of Principal Amount into the Conversion
Value which shall be paid as follows:


 


(i)            Cash in an amount equal to the
lesser of (A) $1,000 and (B) the Conversion Value (the “Required Cash Amount”);
and


 


(ii)           if the Conversion Value is greater
than $1,000, a number of shares of Common Stock (the “Remaining Shares”),
equal to the sum of the Daily Share Amounts for each of the ten consecutive
Trading Days in the Conversion Reference Period, subject to the right of the
Company to deliver cash in lieu of all or a portion of such Remaining Shares as
described below.


 


On any
day prior to the first Trading Day of the applicable Conversion Reference
Period, the Company may specify a percentage of the Daily Share Amount that
will be settled in cash (the “Cash Percentage”) and will notify the
Securityholder of such Cash Percentage through written notice to the Trustee
(the “Cash Percentage Notice”). If the Company elects to specify a Cash
Percentage, the amount of cash that the Company will deliver in respect of each
Trading Day in the applicable Conversion Reference Period will equal the
product of: (1) the Cash Percentage, (2) the Daily Share Amount for such
Trading Day, and (3) the Volume Weighted Average Price of the Common Stock for
such Trading Day (provided that after the consummation of a Change in Control
in which the consideration is comprised entirely of cash, the amount used in
this clause (3) will be the cash price per share of Common Stock received by
holders of Common Stock in such Change in Control). The number of shares
deliverable in respect of each Trading Day in the applicable Conversion
Reference Period will be a percentage of the Daily Share Amount equal to 100%
minus the Cash Percentage. If the Company does not specify a Cash Percentage by
the start of the applicable Conversion Reference Period, the Company shall
settle 100% of the Daily Share Amount for each Trading Day in the applicable
Conversion Reference Period with shares of Common Stock; provided, however,
that the Company will pay cash in lieu of fractional shares otherwise issuable
upon conversion of such


 


45

















 


Security, pursuant to Section 10.03 hereof. The
Company may, at its option, revoke any Cash Percentage Notice through written
notice to the Trustee prior to the start of the applicable Conversion Reference
Period.


 


A
Holder may convert a portion of the Principal Amount of a Security if the
portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture
that apply to conversion of all of a Security also apply to conversion of a
portion of a Security.


 


In the
event of a stock split, combination, dividend or any other event resulting in
an adjustment to the Conversion Rate pursuant to Sections 10.06, 10.07, 10.08,
10.09 or 10.10, during the applicable Conversion Reference Period, appropriate
adjustment to the equation for calculating Conversion Value and Remaining
Shares shall be made, as determined by the Board of Directors.


 


SECTION 10.02     Conversion Procedure.


 


To
convert a Security, a Holder must satisfy the requirements in paragraph 6 of
the Securities. The Conversion Agent shall, within one (1) Business Day of the
Conversion Date, provide notice to the Company as set forth in Section
12.02(b).


 


As
promptly as practicable following the end of the Conversion Reference Period
applicable to the Securities being converted, the Company shall deliver to the
Holder, through the Conversion Agent, the Required Cash Amount and Net Share
Amount, if any (including cash in lieu of fractional shares pursuant to Section
10.03 hereof). The person in whose name the certificate representing any shares
is registered shall be treated as a stockholder of record on and after the
Conversion Date; provided, however, that no surrender of a Security on any date
when the stock transfer books of the Company shall be closed shall be effective
to constitute the person or persons entitled to receive the Net Share Amount
upon such conversion as the record holder or holders of such shares of Common
Stock on such date, but such surrender shall be effective to constitute the
person or persons entitled to receive such shares of Common Stock as the record
holder or holders thereof for all purposes at the Close of Business on the next
succeeding day on which such stock transfer books are open; such conversion
shall be at the Conversion Rate in effect on the date that such Security shall
have been surrendered for conversion, as if the stock transfer books of the
Company had not been closed. Upon conversion of a Security, such person shall
no longer be a Holder of such Security.


 


No
payment or adjustment will be made for dividends on, or other distributions
with respect to, any Common Stock except as provided in this Article 10. On
conversion of a Security, accrued interest with respect to the converted
Security shall not be cancelled, extinguished or forfeited, but rather shall be
deemed to be paid in full to the Holder thereof through delivery of the
Required Cash Amount and Net Share Amount, if any (together with the cash
payment, if any, in lieu of fractional shares) in exchange for the Security
being converted pursuant to the provisions hereof.


 


If the
Holder converts more than one Security at the same time, the Required Cash
Amount and Net Share Amount, if any (together with the cash payment, if any, in
lieu of fractional shares) shall be based on the total Principal Amount of the
Securities converted.


 


46

















 


If the
last day on which a Security may be converted is a Legal Holiday, the Security
may be surrendered on the next succeeding day that is not a Legal Holiday.


 


Upon
surrender of a Security that is converted in part, the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder, a new Security in
an authorized denomination equal in Principal Amount to the unconverted portion
of the Security surrendered.


 


SECTION 10.03     Fractional Shares.


 


The
Company will not issue a fractional share of Common Stock upon conversion of a
Security. Instead, the Company will deliver cash for the current market value
of the fractional share. The current market value of a fractional share shall equal
the arithmetic average of the Volume Weighted Average Price of the Common Stock
for each of the ten consecutive Trading Days of the Conversion Reference Period,
rounded to the nearest whole cent.


 


SECTION 10.04     Taxes on Conversion.


 


If a
Holder converts a Security, the Company shall pay any documentary, stamp or
similar issue or transfer tax due on the issue of any shares of Common Stock
upon the conversion. However, the Holder shall pay any such tax which is due
because the Holder requests the shares to be issued in a name other than the
Holder’s name. The Conversion Agent may refuse to deliver the certificates
representing the Common Stock being issued in a name other than the Holder’s
name until the Conversion Agent receives a sum sufficient to pay any tax which
will be due because the shares are to be delivered in a name other than the
Holder’s name. Nothing herein shall preclude any tax withholding required by
law or regulations.


 


SECTION 10.05     Company to Provide Stock.


 


The
Company shall, prior to issuance of any Securities under this Article 10, and
from time to time as may be necessary, reserve out of its authorized but
unissued Common Stock a sufficient number of shares of Common Stock to permit
the payment of the Net Share Amount, if applicable, upon conversion of the
Securities.


 


All
shares of Common Stock delivered upon payment of any Net Share Amount, if
applicable, upon conversion of the Securities shall be newly issued shares or
treasury shares, shall be duly and validly issued and fully paid and
nonassessable and shall be free from preemptive rights and free of any lien or
adverse claim.


 


The
Company will comply with all federal and state securities laws regulating the
offer and delivery of shares of Common Stock upon payment of any Net Share
Amount, if applicable, upon conversion of Securities, if any, and will list or
cause to have quoted such shares of Common Stock on each national securities
exchange or in the over-the-counter market or such other market on which the
Common Stock is then listed or quoted.


 


SECTION 10.06     Adjustment for Change In Capital Stock.


 


If,
after the Issue Date of the Securities, the Company:


 


47

















 


(1)           pays a dividend or makes a
distribution on its Common Stock payable in shares of its Common Stock or
shares of other Capital Stock;


 


(2)           subdivides or combines its shares of
Common Stock; or


 


(3)           issues by reclassification of its
Common Stock any shares of its Capital Stock (other than rights, warrants or
options for its Capital Stock),


 


then the Conversion Rate in effect immediately prior
to such action shall be adjusted so that the Holder of a Security thereafter
converted may receive the number of shares of Capital Stock of the Company
which such Holder would have owned immediately following such action if such
Holder had converted the Security immediately prior to such action.


 


The
adjustment shall become effective immediately after the record date in the case
of a dividend or distribution and immediately after the effective date in the
case of a subdivision, combination or reclassification.


 


If
after an adjustment a Holder of a Security upon conversion of such Security may
receive shares of two or more classes of Capital Stock of the Company, the
Conversion Rate shall thereafter be subject to adjustment upon the occurrence
of an action taken with respect to any such class of Capital Stock as is
contemplated by this Article 10 with respect to the Common Stock, on terms
comparable to those applicable to Common Stock in this Article 10.


 


SECTION 10.07     Adjustment for Rights Issue.


 


If,
after the Issue Date of the Securities, the Company distributes any rights,
warrants or options to all holders of its Common Stock entitling them, for a
period expiring within 60 days after the record date for such distribution, to
purchase shares of Common Stock at a price per share less than the Average
Closing Price, the Conversion Rate shall be adjusted in accordance with the
formula:


 


	
  R’ = R x  

  	
  (O + N)

  	
   

  
	
  (O + (N x P) /M)

  	
   

  



 


where:


 


R’ =
the adjusted Conversion Rate.


 


R =
the current Conversion Rate.


 


O =
the number of shares of Common Stock outstanding on the record date for the
distribution to which this Section 10.07 is being applied.


 


N =
the number of additional shares of Common Stock offered pursuant to the
distribution.


 


P =
the offering price per share of the additional shares.


 


48

















 


M =
the Average Closing Price, minus, in the case of (i) a distribution to which
Section 10.06(4) applies or (ii) a distribution to which Section 10.08 applies,
for which, in each case, (x) the record date shall occur on or before the
record date for the distribution to which this Section 10.07 applies and (y)
the Ex-Dividend Time shall occur on or after the date of the first public
announcement for the distribution to which this Section 10.07 applies, the fair
market value (on the record date for the distribution to which this Section
10.07 applies) of the


 


(1)           Capital Stock of the Company
distributed in respect of each share of Common Stock in such Section 10.06(4)
distribution and


 


(2)           assets of the Company or debt
securities or any rights, warrants or options to purchase securities of the
Company distributed in respect of each share of Common Stock in such Section
10.08 distribution.


 


The
Board of Directors shall determine fair market values for the purposes of this
Section 10.07.


 


In the
event the Company makes a distribution pursuant to this Section 10.07 which has
a per share value equal to more than 15% of the Closing Price of shares of
Common Stock on the day preceding the declaration date for such distribution,
the Company will be required to give notice to the holders of Securities at
least 20 days prior to the Ex-Dividend Date, as defined below, for such
distribution.


 


The
adjustment shall become effective immediately after the record date for the
determination of shareholders entitled to receive the rights, warrants or
options to which this Section 10.07 applies. If all of the shares of Common
Stock subject to such rights, warrants or options have not been issued when
such rights, warrants or options expire, then the Conversion Rate shall
promptly be readjusted to the Conversion Rate that would then be in effect had
the adjustment upon the issuance of such rights, warrants or options been made
on the basis of the actual number of shares of Common Stock issued upon the
exercise of such rights, warrants or options.


 


No
adjustment shall be made under this Section 10.07 if the application of the
formula stated above in this Section 10.07 would result in a value of R’ that
is equal to or less than the value of R.


 


SECTION 10.08     Adjustment for Other Distributions.


 


(a)           If, after the Issue Date of the
Securities, the Company distributes to all holders of its Common Stock any of
its assets (including shares of any Subsidiary or business unit of the Company,
but excluding distributions of Capital Stock or equity interests referred to in
Section 10.08(b)), or debt securities or any rights, warrants or options to
purchase securities of the Company (including securities or cash, but excluding
(x) distributions of Capital Stock referred to in Section 10.06 and
distributions of rights, warrants or options referred to in Section 10.07 and
(y) cash dividends or other cash distributions referred to in Section 10.09,
the Conversion Rate shall be adjusted, subject to the provisions of Section
10.08(c), in accordance with the formula:


 


49

















 


	
  R’ =   

  	
  R x M

  	
   

  
	
  M - F

  	
   

  



 


where:


 


R’ =
the adjusted Conversion Rate.


 


R =
the current Conversion Rate.


 


M =
the Average Closing Price, minus, in the case of a distribution to which
Section 10.06(4) applies, for which (i) the record date shall occur on or
before the record date for the distribution to which this Section 10.08(a)
applies and (ii) the Ex-Dividend Time shall occur on or after the date of the
Time of Determination for the distribution to which this Section 10.08(a)
applies, the fair market value (on the record date for the distribution to
which this Section 10.08(a) applies) of any Capital Stock of the Company
distributed in respect of each share of Common Stock in such Section 10.06(4)
distribution.


 


F =
the fair market value (on the record date for the distribution to which this
Section 10.08(a) applies) of the assets, securities, rights, warrants or
options to be distributed in respect of each share of Common Stock in the
distribution to which this Section 10.08(a) is being applied (including, in the
case of cash dividends or other cash distributions giving rise to an
adjustment, all such cash distributed concurrently).


 


The Board
of Directors shall determine fair market values for the purposes of this
Section 10.08(a).


 


The
adjustment shall become effective immediately after the record date for the
determination of shareholders entitled to receive the distribution to which
this Section 10.08(a) applies.


 


(b)           If, after the Issue Date of the
Securities, the Company pays a dividend or makes a distribution to all holders
of its Common Stock consisting of Capital Stock of any class or series, or
similar equity interests, of or relating to a Subsidiary or other business unit
of the Company, then the Conversion Rate shall be adjusted in accordance with
the formula:


 


R’ = R x (1 + F/M)


 


R’ =
the adjusted Conversion Rate.


 


R =
the current Conversion Rate.


 


M =
the average of the Post-Distribution Prices of the Common Stock for the 10
Trading Days commencing on and including the fifth Trading Day after the date
on which “ex-dividend trading” commences for such dividend or distribution on
the principal United States exchange or market which such securities are then
listed or quoted (the “Ex-Dividend Date”).


 


F =
the fair market value of the securities distributed in respect of each share of
Common Stock for which this Section 10.08(b) shall mean the number of
securities distributed in


 


50

















 


respect of each share of Common Stock multiplied by
the average of the Post-Distribution Prices of those securities distributed for
the 10 Trading Days commencing on and including the fifth Trading Day after the
Ex-Dividend Date.


 


“Post-Distribution Price” of Capital Stock or
any similar equity interest on any date means the closing per unit sale price
(or, if no closing sale price is reported, the average of the bid and ask
prices or, if more than one in either case, the average of the average bid and
the average ask prices) on such date for trading of such units on a “when
issued” basis without due bills (or similar concept) as reported in the
composite transactions for the principal United States securities exchange on
which such Capital Stock or equity interest is traded or, if the Capital Stock
or equity interest, as the case may be, is not listed on a United States
national or regional securities exchange, as reported by the National
Association of Securities Dealers Automated Quotation System or by the National
Quotation Bureau Incorporated; provided that if on any date such units have not
traded on a “when issued” basis, the Post-Distribution Price shall be
the closing per unit sale price (or, if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) on such date for trading
of such units on a “regular way” basis without due bills (or similar concept)
as reported in the composite transactions for the principal United States
securities exchange on which such Capital Stock or equity interest is traded
or, if the Capital Stock or equity interest, as the case may be, is not listed
on a United States national or regional securities exchange, as reported by the
National Association of Securities Dealers Automated Quotation System or by the
National Quotation Bureau Incorporated. In the absence of such quotation, the
Company shall be entitled to determine the Post-Distribution Price on the basis
of such quotations which reflect the post-distribution value of the Capital
Stock or equity interests as it considers appropriate.


 


(c)           In the event that, with respect to
any distribution to which Section 10.08(a) would otherwise apply, the
difference “M-F” as defined in the formula set forth in Section 10.08(a)
is less than $1.00 or “F” is equal to or greater than “M”, then
the adjustment provided by Section 10.08(a) shall not be made and in lieu
thereof the provisions of Section 10.16 shall apply to such distribution.


 


(d)           In the event the Company makes a
distribution pursuant to this Section 10.08 which has a per share value equal
to more than 15% of the Closing Price of shares of Common Stock on the day
preceding the declaration date for such distribution, the Company will be
required to give notice to the holders of Securities at least 20 days prior to
the Ex-Dividend Date, as defined below, for such distribution.


 


SECTION 10.09     Adjustment for Cash Dividends.


 


(a)           If, after the Issue Date of the
Securities, the Company distributes to all or substantially all holders of its
Common Stock any cash (excluding any dividend or distribution in connection
with the liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary), the Conversion Rate shall be adjusted, subject to
the provisions of Section 10.09(b) in accordance with the formula:


 


	
  R’ = R x  

  	
  M

  	
   

  
	
  (M – C)

  	
   

  



 


51

















 


where,


 


R’ =
the adjusted Conversion Rate;


 


R =
the Conversion Rate in effect immediately prior to the Time of Determination;


 


M =
the average of the Closing Prices of the Common Stock for the five consecutive
Trading Days prior to the Trading Day immediately preceding the Time of Determination;
and


 


C =
the amount in cash per share the Company distributes to holders of the Common
Stock (and for which no adjustment has been made).


 


SECTION 10.10     Adjustment for Tender Offer.


 


If, after the Issue Date, the Company makes a payment
of cash or other consideration to holders of Common Stock in respect of a
tender offer or exchange offer, other than an odd-lot offer, for the Common
Stock, and the value of the sum of (i) the aggregate cash and other
consideration paid for such Common Stock, and (ii) the aggregate fair market
value of any consideration paid for the purchase of Common Stock in respect of
a tender offer or exchange offer, other than an odd-lot offer, within the
twelve (12) months preceding the date of purchase of such shares of Common
Stock in respect of which no adjustment pursuant to this Section 10.10
previously has been made, expressed as an amount per share of Common Stock
validly tendered or exchanged pursuant to such tender offer or exchange offer,
exceeds the Closing Price of the Common Stock on the Trading Day immediately
following the last time (the “Expiration Time”) on which tenders or
exchanges may be made pursuant to the tender or exchange offer, then the
Conversion Rate shall be adjusted in accordance with the formula:


 


	
  R’ = R x  

  	
  F + (P x O)

  	
   

  
	
  O’ x P

  	
   

  



 


where,


 


R  =  the
Conversion Rate in effect on the Expiration Time;


 


R’
=  the Conversion Rate in effect
immediately after the Expiration Time;


 


F  =  the
fair market value (as determined by the Board of Directors) of the aggregate
value of all cash and any other consideration paid or payable for shares of
Common Stock validly tendered or exchanged and not withdrawn as of the
Expiration Time (the “Purchased Shares”);


 


O  =  the
number of shares of Common Stock outstanding immediately after the Expiration
Time less any Purchased Shares;


 


52

















 


O’
=  the number of shares of Common Stock
outstanding immediately after the Expiration Time, including any Purchased
Shares; and


 


P =   the Closing Price of the Common Stock on the
Trading Day next succeeding the Expiration Time.


 


Such
increase (if any) shall become effective immediately prior to the opening of
business on the day following the Expiration Time. In the event that the Company
is obligated to purchase shares pursuant to any such tender offer, but the
Company is prevented by applicable law from effecting any such purchases or all
such purchases are rescinded, the Conversion Rate shall again be adjusted to be
the Conversion Rate that would then be in effect if such tender or exchange
offer had not been made. If the application of this Section 10.10 to any tender
or exchange offer would result in a decrease in the Conversion Rate, no
adjustment shall be made for such tender or exchange offer under this Section
10.10.


 


SECTION 10.11     Adjustment to Conversion Rate Upon
Change in Control Transactions.


 


If,
after the Issue Date, a Change in Control occurs and a Holder elects to convert
its Securities in connection with such Change in Control, the Company will
increase the Applicable Conversion Rate for the Securities surrendered by
conversion by a number of additional shares of Common Stock (the “Make-Whole
Shares”), as described in this Section 10.11. A conversion of Securities
will be deemed for the purposes of this Section 10.11 to be “in connection
with” a Change in Control transaction if the notice of conversion of the
Securities is received by the Conversion Agent from and including the date that
is ten Trading Days prior to the anticipated effective date of the Change in
Control, up to and including the Trading Day prior to the related purchase
date.


 


The
number of Make-Whole Shares will be determined by reference to the table below
and is based on the date which such Change in Control transaction becomes
effective (the “Change in Control Effective Date”) and the price (the “Stock
Price”) paid per share of Common Stock in such Change in Control
transaction. If the holders of Common Stock receive only cash in the Change in
Control transaction, the Stock Price shall be the cash amount paid per share of
Common Stock. Otherwise, the Stock Price shall be the average of the closing
sale prices of the Common Stock on the ten consecutive Trading Days up to but
excluding the Change in Control Effective Date.


 


The
Stock Prices set forth in the first column of the table below will be adjusted
as of any date on which the Conversion Rate is adjusted. The adjusted Stock
Prices will equal the Stock Prices applicable immediately prior to such adjustment,
multiplied by a fraction, the numerator of which is the Applicable Conversion
Rate immediately prior to the adjustment giving rise to the Stock Price
adjustment and the denominator of which is the Applicable Conversion Rate as so
adjusted. 


 


53

















 


	
   

  	
   

  	
  Effective Date

  	
   

  
	
  Stock Price on Effective Date

  	
   

  	
  February 17,

  2006

  	
   

  	
  February 1,

  2007

  	
   

  	
  February 1,

  2008

  	
   

  	
  February 1,

  2009

  	
   

  	
  February 1,

  2010

  	
   

  	
  February 1,

  2011

  	
   

  
	
  $

  	
  71.93

  	
   

  	
  1.3777

  	
   

  	
  1.3777

  	
   

  	
  1.3777

  	
   

  	
  1.3777

  	
   

  	
  1.3777

  	
   

  	
  1.3777

  	
   

  
	
  $

  	
  75.00

  	
   

  	
  1.1797

  	
   

  	
  1.2154

  	
   

  	
  1.2362

  	
   

  	
  1.2202

  	
   

  	
  1.1312

  	
   

  	
  0.8086

  	
   

  
	
  $

  	
  80.00

  	
   

  	
  0.9181

  	
   

  	
  0.9280

  	
   

  	
  0.9170

  	
   

  	
  0.8674

  	
   

  	
  0.7306

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  85.00

  	
   

  	
  0.7169

  	
   

  	
  0.7113

  	
   

  	
  0.6772

  	
   

  	
  0.6103

  	
   

  	
  0.4579

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  90.00

  	
   

  	
  0.5615

  	
   

  	
  0.5462

  	
   

  	
  0.5022

  	
   

  	
  0.4251

  	
   

  	
  0.2787

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  95.00

  	
   

  	
  0.4410

  	
   

  	
  0.4203

  	
   

  	
  0.3724

  	
   

  	
  0.2964

  	
   

  	
  0.1642

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  100.00

  	
   

  	
  0.3472

  	
   

  	
  0.3240

  	
   

  	
  0.2758

  	
   

  	
  0.2056

  	
   

  	
  0.0943

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  105.00

  	
   

  	
  0.2740

  	
   

  	
  0.2502

  	
   

  	
  0.2041

  	
   

  	
  0.1418

  	
   

  	
  0.0528

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  110.00

  	
   

  	
  0.2166

  	
   

  	
  0.1931

  	
   

  	
  0.1506

  	
   

  	
  0.0971

  	
   

  	
  0.0284

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  115.00

  	
   

  	
  0.1715

  	
   

  	
  0.1493

  	
   

  	
  0.1108

  	
   

  	
  0.0657

  	
   

  	
  0.0155

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  120.00

  	
   

  	
  0.1359

  	
   

  	
  0.1153

  	
   

  	
  0.0809

  	
   

  	
  0.0438

  	
   

  	
  0.0100

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  125.00

  	
   

  	
  0.1074

  	
   

  	
  0.0889

  	
   

  	
  0.0575

  	
   

  	
  0.0298

  	
   

  	
  0.0097

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  130.00

  	
   

  	
  0.0836

  	
   

  	
  0.0681

  	
   

  	
  0.0450

  	
   

  	
  0.0207

  	
   

  	
  0.0093

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  135.00

  	
   

  	
  0.0675

  	
   

  	
  0.0521

  	
   

  	
  0.0342

  	
   

  	
  0.0179

  	
   

  	
  0.0089

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  140.00

  	
   

  	
  0.0566

  	
   

  	
  0.0416

  	
   

  	
  0.0261

  	
   

  	
  0.0173

  	
   

  	
  0.0085

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  145.00

  	
   

  	
  0.0469

  	
   

  	
  0.0332

  	
   

  	
  0.0245

  	
   

  	
  0.0166

  	
   

  	
  0.0083

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  150.00

  	
   

  	
  0.0388

  	
   

  	
  0.0315

  	
   

  	
  0.0236

  	
   

  	
  0.0159

  	
   

  	
  0.0076

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  155.00

  	
   

  	
  0.0349

  	
   

  	
  0.0284

  	
   

  	
  0.0227

  	
   

  	
  0.0153

  	
   

  	
  0.0072

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  160.00

  	
   

  	
  0.0303

  	
   

  	
  0.0273

  	
   

  	
  0.0219

  	
   

  	
  0.0147

  	
   

  	
  0.0072

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  165.00

  	
   

  	
  0.0298

  	
   

  	
  0.0264

  	
   

  	
  0.0212

  	
   

  	
  0.0140

  	
   

  	
  0.0066

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  170.00

  	
   

  	
  0.0294

  	
   

  	
  0.0256

  	
   

  	
  0.0206

  	
   

  	
  0.0136

  	
   

  	
  0.0066

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  175.00

  	
   

  	
  0.0290

  	
   

  	
  0.0248

  	
   

  	
  0.0198

  	
   

  	
  0.0131

  	
   

  	
  0.0058

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  180.00

  	
   

  	
  0.0285

  	
   

  	
  0.0240

  	
   

  	
  0.0193

  	
   

  	
  0.0128

  	
   

  	
  0.0058

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  185.00

  	
   

  	
  0.0293

  	
   

  	
  0.0234

  	
   

  	
  0.0187

  	
   

  	
  0.0123

  	
   

  	
  0.0053

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  190.00

  	
   

  	
  0.0291

  	
   

  	
  0.0229

  	
   

  	
  0.0182

  	
   

  	
  0.0118

  	
   

  	
  0.0053

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  195.00

  	
   

  	
  0.0281

  	
   

  	
  0.0220

  	
   

  	
  0.0176

  	
   

  	
  0.0116

  	
   

  	
  0.0049

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  200.00

  	
   

  	
  0.0276

  	
   

  	
  0.0219

  	
   

  	
  0.0173

  	
   

  	
  0.0112

  	
   

  	
  0.0047

  	
   

  	
  0.0000

  	
   

  



 


If the
exact Stock Prices and effective dates are not set forth in the table, then:
(i) if the Stock Price is between two Stock Price amounts in the table or the
effective date is between two dates in the table, the Make-Whole Shares issued
upon conversion of the Securities will be determined by a straight-line
interpolation between the number of Make-Whole Shares set forth for the higher
and lower Stock Price amounts and the two dates in the table, based on a
365-day year, (ii) if the Stock Price exceeds $200.00 per share, subject to
adjustment as set forth herein, no Make-Whole Shares will be issued upon
conversion of the Securities; and (iii) if the Stock Price is less than $71.93
per share, subject to adjustment as set forth herein, no Make-Whole Shares will
be issued upon conversion of the Securities.


 


SECTION 10.12     Adjustment to Conversion Rate After a
Public Acquirer Change in Control.


 


Notwithstanding
the provisions of Section 10.11, if, following the Issue Date, a Change in
Control constituting a Public Acquirer Change in Control (as defined below)
occurs, the Company may, in lieu of issuing additional shares of Common Stock
upon conversion, elect to adjust the Conversion Rate and the related conversion
obligation such that from and after the effective date of such Public Acquirer
Change in Control (the “Public Acquirer Change in Control Effective Date”), Holders
shall be entitled to convert their Securities into a number of shares of Public
Acquirer Common Stock (as defined below), still subject to the arrangements for
payment upon conversion otherwise applicable pursuant to this Article 10, by
adjusting the Conversion Rate in effect immediately before the Public Acquirer
Change in Control by a fraction (i) the numerator of which will be (a) in the
case of a share exchange, consideration,


 


54

















 


merger
or binding share exchange pursuant to which the Common Stock is converted into
cash, securities, or other property, the average value of all cash and any
other consideration (as determined by the Board of Directors of the Company)
paid or payable per share of Common Stock or (b) in the case of any other
Public Acquirer Change in Control, the average of the last reported sale prices
of our Common Stock for the five consecutive Trading Days prior to but
excluding the Public Acquirer Change in Control Effective Date; and (ii) the
denominator of which will be the average of the last reported sales prices of
the Public Acquirer Common Stock for the five consecutive Trading Days
commencing on the Trading Day next succeeding the Public Acquirer Change in Control
Effective Date.


 


A “Public
Acquirer Change in Control” means a Change in Control in which the acquirer
has a class of common stock traded on a U.S. national securities exchange or
quoted on The Nasdaq National Market or which will be so traded or quoted when
issued or exchanged in connection with such change in control (the “Public
Acquirer Common Stock”). If an acquirer does not itself have a class of
common stock satisfying the foregoing requirement, it will be deemed to have
“public acquirer common stock” if a corporation that directly or indirectly
owns at least a majority of the acquirer has a class of common stock satisfying
the foregoing requirement, in such case, all references to public acquirer
common stock shall refer to such class of common stock. Majority owned for
these purposes means having “beneficial ownership” (as defined in Rule 13d-3
under the Exchange Act of more than 50% of the total voting power of all shares
of the respective entity’s capital stock that are entitled to vote generally in
the election of directors.


 


Upon a
Public Acquirer Change in Control, at the election of the Company, Holders may
convert their Securities at the adjusted Conversion Rate described in the
second preceding paragraph in this Section 10.12 but shall not be entitled to
receive additional shares upon conversion as described herein. The Company
shall be required to notify Holders of its election in its notice to holders of
such Public Acquirer Change in Control pursuant to Section 3.01.


 


SECTION 10.13     When Adjustment May Be Deferred.


 


No
adjustment in the Conversion Rate need be made unless the adjustment would
require an increase or decrease of at least 1% of the Conversion Rate. Any
adjustments that are less than 1% of the Conversion Rate shall be carried forward
and taken into account in determining any subsequent adjustment. In addition,
the Company shall make and pay any carry forward adjustments not otherwise
effected on each anniversary of the Issue Date, upon conversion of any Note,
upon required purchase of the notes pursuant to Section  3.01, and five business days prior to the
Stated Maturity.


 


Notwithstanding
the provisions of this Article 10, in no event will the Conversion Rate exceed
13.9024 shares per $1,000 Principal Amount of the Securities, as adjusted,
other than on account of Sections 10.6, 10.7, 10.8, 10.9, 10.11, and 10.12.


 


All
calculations under this Article 10 shall be made to the nearest cent or to the
nearest 1/1,000th of a share, as the case may be (with one-half cent and
5/10,000ths of a share being rounded upward).


 


55

















 


SECTION 10.14     When No Adjustment Required.


 


No
adjustment need be made for a transaction referred to in Section 10.06, 10.07,
10.08, 10.09, 10.10 or 10.17 if Securityholders are to participate in the
transaction on a basis and with notice that the Board of Directors determines
to be fair and appropriate in light of the basis and notice on which holders of
Common Stock participate in the transaction. Such participation by
Securityholders may include participation upon conversion provided that an
adjustment shall be made at such time as the Securityholders are no longer
entitled to participate.


 


No
adjustment need be made for rights to purchase Common Stock pursuant to a
Company plan for reinvestment of dividends or interest.


 


No
adjustment need be made for a change in the par value or no par value of the
Common Stock.


 


To the
extent the Securities become convertible pursuant to this Article 10 into cash,
no adjustment need be made thereafter as to the cash. Interest will not accrue
on the cash.


 


SECTION 10.15     Notice of Adjustment.


 


Whenever
the Conversion Rate is adjusted, the Company shall promptly mail to
Securityholders a notice of the adjustment. The Company shall file with the
Trustee and the Conversion Agent such notice and a certificate from the Company’s
independent public accountants briefly stating the facts requiring the
adjustment and the manner of computing it. The certificate shall be conclusive
evidence that the adjustment is correct. Neither the Trustee nor any Conversion
Agent shall be under any duty or responsibility with respect to any such
certificate except to exhibit the same to any Holder desiring inspection
thereof.


 


SECTION 10.16     Notice of Certain Transactions.


 


If:


 


(1)           the Company takes any action that
would require an adjustment in the Conversion Rate pursuant to Section 10.06,
10.07, 10.08, 10.09, 10.10 or 10.11 (unless no adjustment is to occur pursuant
to Section 10.14); or


 


(2)           the Company takes any action that
would require a supplemental indenture pursuant to Section 10.17; or


 


(3)           there is a liquidation or dissolution
of the Company;


 


then
the Company shall mail to Securityholders and file with the Trustee and the
Conversion Agent a notice stating the proposed record date for a dividend or
distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at least
15 days before such date. Failure to file or mail the notice or any defect in
it shall not affect the validity of the transaction.


 


56

















 


SECTION 10.17     Reorganization of Company; Special
Distributions.


 


If the
Company is a party to a transaction subject to Section 5.01 (other than a sale
of all or substantially all of the assets of the Company in a transaction in
which the holders of Common Stock immediately prior to such transaction do not
receive securities, cash or other assets of the Company or any other person) or
a merger or binding share exchange which reclassifies or changes the
outstanding Common Stock of the Company, the person obligated to deliver
securities, cash or other assets upon conversion of Securities shall enter into
a supplemental indenture. If the issuer of securities deliverable upon
conversion of Securities is an Affiliate of the successor Company, that issuer
shall join in the supplemental indenture.


 


The
supplemental indenture shall provide that after the effective time of the
transaction, settlement of the Net Share Amount will be based on the kind and
amount of cash, securities or other assets of the Company or another Person
that a holder of Common Stock received in such transaction (or, if such
transaction provides for the holders of Common Stock the right to receive more
than a single type of consideration determined based in part upon any form of
stockholder election, the weighted average of the types and amounts of
consideration received by the holders of Common Stock); provided that, for the
avoidance of doubt, the Conversion Value will be paid in cash and at the
Company’s election, cash, Common Stock or a combination of cash and Common Stock
in accordance with the terms of this Article 10. The supplemental indenture
shall provide for adjustments which shall be as nearly equivalent as may be
practical to the adjustments provided for in this Article 10. The successor
Company shall mail to Securityholders a notice briefly describing the
supplemental indenture.


 


If
this Section applies, neither Section 10.06 nor 10.07 applies. If the Company
makes a distribution to all holders of its Common Stock of any of its assets,
or debt securities or any rights, warrants or options to purchase securities of
the Company that, but for the provisions of Section 10.08(c), would otherwise
result in an adjustment in the Conversion Rate pursuant to the provisions of
Section 10.08, then, from and after the record date for determining the holders
of Common Stock entitled to receive the distribution, a Holder of a Security
that converts such Security in accordance with the provisions of this Indenture
shall upon such conversion be entitled to receive, in addition to the shares of
Common Stock into which the Security is convertible, the kind and amount of
securities, cash or other assets comprising the distribution that such Holder
would have received if such Holder had converted the Security immediately prior
to the record date for determining the holders of Common Stock entitled to
receive the distribution.


 


SECTION 10.18     Company Determination Final.


 


Any
determination that the Company or the Board of Directors must make pursuant to
Section 10.03, 10.06, 10.07, 10.08, 10.09, 10.10, 10.13, 10.14, 10.17 or 10.20
is conclusive.


 


SECTION 10.19     Trustee’s Adjustment Disclaimer.


 


The
Trustee has no duty to determine when an adjustment under this Article 10
should be made, how it should be made or what it should be. The Trustee has no
duty to


 


57

















 


determine
whether a supplemental indenture under Section 10.17 need be entered into or
whether any provisions of any supplemental indenture are correct. The Trustee
shall not be accountable for and makes no representation as to the validity or
value of any securities or assets issued upon conversion of Securities. The
Trustee shall not be responsible for the Company’s failure to comply with this
Article 10. Each Conversion Agent shall have the same protection under this
Section 10.19 as the Trustee.


 


SECTION 10.20     Simultaneous Adjustments.


 


In the
event that this Article 10 requires adjustments to the Conversion Rate under
more than one of Sections 10.06(4), 10.07, 10.08 or 10.09, and the record dates
for the distributions giving rise to such adjustments shall occur on the same
date, then such adjustments shall be made by applying, first, the provisions of
Section 10.06, second, the provisions of Section 10.08, third, the provisions
of Section 10.09 and, fourth, the provisions of 10.07.


 


SECTION 10.21     Successive Adjustments.


 


After
an adjustment to the Conversion Rate under this Article 10, any subsequent
event requiring an adjustment under this Article 10 shall cause an adjustment
to the Conversion Rate as so adjusted.


 


SECTION 10.22     Rights Issued in Respect of Common Stock
Issued Upon Conversion.


 


Each
share of Common Stock issued upon conversion of Securities pursuant to this
Article 10 shall be entitled to receive the appropriate number of rights (“Rights”),
if any, and the certificates representing the Common Stock issued upon such
conversion shall bear such legends, if any, in each case as may be provided by
the terms of the Company’s Amended and Restated Rights Agreement, dated as of
December 12, 2000, between the Company and American Stock Transfer & Trust
Company, as Rights Agent, or any successor shareholder rights agreement adopted
by the Company, as the same may be amended form time to time (in each case, a “Shareholders
Rights Plan”). Provided that such Shareholders Rights Plan requires that
each share of Common Stock issued upon conversion of Securities (or cash in
lieu thereof) at any time prior to the distribution of separate certificates
representing the Rights be entitled to receive such Rights, then,
notwithstanding anything else to the contrary in this Article 10, there shall
not be any adjustment to the conversion privilege or Conversion Rate as a
result of the issuance of Rights, the distribution of separate certificates
representing the Rights, the exercise or redemption of such Rights in
accordance with any Shareholders Rights Plan, or the termination or
invalidation of such Rights.


 


SECTION 10.23     Withholding Taxes for Adjustments in
Conversion Rate.


 


If the
Company pays withholding taxes on behalf of a Holder as a result of an
adjustment to the Conversion Rate, the Company may, at its option, set off such
payments against payments of cash and Common Stock on the Securities.


 


58

















 


ARTICLE 11



PAYMENT OF INTEREST


 


SECTION 11.01     Interest Payments.


 


Interest
on any Security that is payable, and is punctually paid or duly provided for,
on any applicable Interest Payment Date shall be paid to the person in whose
name that Security is registered at the Close of Business on the Regular Record
Date or accrual date, as the case may be, for such interest at the office or
agency of the Company maintained for such purpose. Each installment of interest
payable in cash on any Security shall be paid in same-day funds by transfer to
an account maintained by the payee located inside the United States, if the
Trustee shall have received proper wire transfer instructions from such payee
not later than the related Regular Record Date or accrual date, as the case may
be, or, if no such instructions have been received by check drawn on a bank in
the City of New York mailed to the payee at its address set forth on the
Registrar’s books. In the case of a permanent Global Security, interest payable
on any applicable payment date will be paid to the Depositary, with respect to
that portion of such permanent Global Security held for its account by Cede
& Co. for the purpose of permitting such party to credit the interest
received by it in respect of such permanent Global Security to the accounts of
the beneficial owners thereof.


 


SECTION 11.02     Defaulted Interest.


 


Except
as otherwise specified with respect to the Securities, any interest on any
Security that is payable, but is not punctually paid or duly provided for,
within 30 days following any applicable payment date (herein called “Defaulted
Interest”, which term shall include any accrued and unpaid interest that
has accrued on such defaulted amount in accordance with paragraph 1 of the
Securities), shall forthwith cease to be payable to the registered Holder
thereof on the relevant Regular Record Date or accrual date, as the case may
be, 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 (1) or
(2) below. All such Defaulted Interest shall be payable on the next Interest
Payment Date.


 


(1)           The Company may elect to make payment
of any Defaulted Interest to the persons in whose names the Securities are
registered at the Close of Business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed payment
(which shall not be less than 20 days after such notice is received by the
Trustee), 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 satisfactory to the Trustee
for such deposit on or prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee shall
fix a special record date for the payment of such Defaulted Interest which
shall be not more than 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 “Special Record Date”). The
Trustee shall promptly notify


 


59

















 


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 of Securities at his address as it
appears on the list of Securityholders maintained pursuant to Section 2.05 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 mailed as aforesaid, such Defaulted Interest shall be paid to the persons
in whose names the Securities are registered at the Close of Business on such
Special Record Date and shall no longer be payable pursuant to the following
clause (2).


 


(2)           The Company may make payment of any
Defaulted Interest on the Securities in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities 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.


 


SECTION 11.03     Interest Rights Preserved.


 


Subject
to the foregoing provisions of this Article 11 and Section 2.06, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.


 


ARTICLE 12



MISCELLANEOUS


 


SECTION 12.01     Trust Indenture Act Controls.


 


If any
provision of this Indenture limits, qualifies, or conflicts with another
provision which is required to be included in this Indenture by the TIA, the
required provision shall control.


 


SECTION 12.02     Notices; Address of Agency.


 


(a)  Other than as set forth in Section 10.01, any
request, demand, authorization, notice, waiver, consent or communication shall
be in writing and delivered in person or mailed by first-class mail, postage
prepaid, addressed as follows or transmitted by facsimile transmission
(confirmed by guaranteed overnight courier) to the following facsimile numbers:


 


60

















 


if to
the Company:




Amgen Inc.

One Amgen Center Drive

Thousand Oaks, CA 91320-1799

Telephone No.: (805) 447-1000

Facsimile No.: (805) 449-2863

Attention:  Treasurer


 


with a
copy to:


 


Latham & Watkins LLP

633 West Fifth Street

Suite 4000

Los Angeles, CA  90071

Telephone No.: (213) 485-1234

Facsimile No.: (213) 891-8763

Attention:  Gregory Rodgers, Esq.


 


if to
the Trustee:


 


JPMorgan Chase Bank, N.A.

4 New York Plaza, 15th Floor


New York, NY 10004

Telephone No.: (212) 623-5233

Facsimile No.: (212) 623-6215

Attention:  Carol Ng, Vice President


 


with a
copy to:


 


Pryor Cashman Sherman & Flynn LLP


410 Park Avenue


New York, NY 10022


Telephone No.: (212) 326-0820


Facsimile No.: (212) 798-6909


Attention: Michael Fruchter, Esq.


 


The
Company or the Trustee by notice given to the other in the manner provided
above may designate additional or different addresses for subsequent notices or
communications.


 


Any
notice or communication given to a Securityholder shall be mailed to the
Securityholder, by first-class mail, postage prepaid, at the Securityholder’s
address as it appears on the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed.


 


Failure
to mail a notice or communication to a Securityholder or any defect in it shall
not affect its sufficiency with respect to other Securityholders. If a notice
or communication


 


61

















 


is
mailed in the manner provided above, it is duly given, whether or not received
by the addressee.


 


If the
Company mails a notice or communication to the Securityholders, it shall mail a
copy to the Trustee and each Registrar, Paying Agent, Conversion Agent or
co-registrar.


 


(b)  Any request, demand, authorization, notice,
waiver, consent or communication to be provided in connection with Section
10.12 shall be in writing and delivered in person or transmitted by facsimile
transmission (confirmed by guaranteed overnight courier) to the following
facsimile numbers or via e-mail to the account or accounts specified by the
Company by written notice to the Trustee:


 


if to
the Company:


 


Amgen Inc.

One Amgen Center Drive

Thousand Oaks, CA 91320-1799

Telephone No.: (805) 447-1000

Facsimile No.: (805) 449-2863

Attention:  Treasurer


 


with a
copy to:


 


Latham & Watkins LLP

633 West Fifth Street

Suite 4000

Los Angeles, CA  90071

Telephone No.: (213) 485-1234

Facsimile No.: (213) 891-8763

Attention:  Gregory Rodgers, Esq.


 


with a
copy to:


 


Merrill Lynch International


Merrill Lynch Financial Centre


2 King Edward Street


London EC1A 1HQ


Telephone No.: 44 207 995 3769


Facsimile No.: 44 207 995 2004


Attention:  Manager,
Fixed Income Settlements


 


and


 


Morgan Stanley & Co. International Limited


c/o Morgan Stanley Bank


One New York Plaza, 4th Floor


New York, NY 
10004


 


62

















 


Attention:  Fred
Gonfiantini


Facsimile No.: (212) 507-0724


Telephone No.: (212) 276-2427


 


Any
notice party set forth in this Section 12.02(b) by notice given to the others
in the manner provided above may designate additional or different addresses
for subsequent notices or communications, including e-mail addresses.


 


SECTION 12.03     Communication by Holders with Other
Holders.


 


Securityholders
may communicate pursuant to TIA Section 312(b) with other Securityholders with
respect to their rights under this Indenture or the Securities. The Company,
the Trustee, the Registrar, the Paying Agent, the Conversion Agent and anyone
else shall have the protection of TIA Section 312(c).


 


SECTION 12.04     Certificate and Opinion as to Conditions
Precedent.


 


Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:


 


(1)           an Officers’ Certificate stating
that, in the opinion of the signers, all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with;
and


 


(2)           an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent have been
complied with.


 


SECTION 12.05     Statements Required in Certificate or
Opinion.


 


Unless
the Trustee agrees, in its sole discretion, to accept a different form or
format, each Officers’ Certificate or Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Indenture shall
include:


 


(1)           a statement that each person making
such Officers’ Certificate or Opinion of Counsel has read such covenant or
condition;


 


(2)           a brief statement as to the nature
and scope of the examination or investigation upon which the statements or
opinions contained in such Officers’ Certificate or Opinion of Counsel are
based;


 


(3)           a statement that, in the opinion of
each such person, he has made such examination or investigation as is necessary
to enable such person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and


 


(4)           a statement that, in the opinion of
such person, such covenant or condition has been complied with.


 


63

















 


SECTION 12.06     Separability Clause.


 


In
case any provision in this Indenture or in the Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.


 


SECTION 12.07     Rules by Trustee, Paying Agent,
Conversion Agent and Registrar.


 


The
Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar, Conversion Agent and the Paying Agent may make
reasonable rules for their functions.


 


SECTION 12.08     Calculations.


 


The
calculation of the Conversion Value, Conversion Date, Volume Weighted Average
Price, Conversion Reference Period, Change in Control Purchase Price,
Conversion Rate, Closing Price of the Common Stock, Required Cash Amount,
Trading Price, the number of shares, if any, to be issued upon conversion and
each other calculation to be made hereunder shall be the obligation of the
Company. All calculations made by the Company as contemplated pursuant to this
Section 12.08 shall be in good faith and final and binding on the Company and
the Holders absent manifest error. The Company will provide a schedule of the
calculations to the Trustee and the Trustee is entitled to rely upon the
accuracy of the calculations without independent verification.


 


SECTION 12.09     Legal Holidays.


 


A “Legal
Holiday” is any day other than a Business Day. If any specified date
(including a date for giving notice) is a Legal Holiday, the action shall be
taken on the next succeeding day that is not a Legal Holiday, and, if the
action to be taken on such date is a payment in respect of the Securities,
interest shall accrue for the intervening period.


 


SECTION 12.10     Governing Law.


 


THE
LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE AND THE SECURITIES.


 


SECTION 12.11     No Recourse Against Others.


 


A
director, officer, employee or stockholder, as such, of the Company shall not
have any liability for any obligations of the Company under the Securities or
this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
shall waive and release all such liability. The waiver and release shall be
part of the consideration for the issue of the Securities.


 


64

















 


SECTION 12.12     Successors.


 


All
agreements of the Company in this Indenture and the Securities shall bind its
successor. All agreements of the Trustee in this Indenture shall bind its
successor.


 


SECTION 12.13     Multiple Originals.


 


The
parties may sign any number of copies of this Indenture. Each signed copy shall
be an original, but all of them together represent the same agreement. One
signed copy is enough to prove this Indenture.


 


(Signature Pages Follow)


 


65

















 


IN WITNESS WHEREOF, the
undersigned, being duly authorized, have executed this Indenture on behalf of
the respective parties hereto as of the date first above written.


 


	
   

  	
  AMGEN INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ RICHARD D. NANULA

  
	
   

  	
   

  	
  Name:

  	
  Richard D. Nanula

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President and

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ CAROL NG

  
	
   

  	
   

  	
  Name:

  	
  Carol Ng

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


66

















 


EXHIBIT A


 


[FORM OF FACE OF SECURITY]


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER 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 THE DEPOSITORY TRUST COMPANY (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.(1)


 


 TRANSFERS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART,
TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.(1)


 


THE NOTES AND THE SHARES OF COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE SECURITIES ACT), OR ANY STATE SECURITIES LAWS. NEITHER
THIS NOTE, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE NOR
ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.(2)


 


BY ITS ACQUISITION HEREOF, THE HOLDER (1) AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE PRIOR TO THE DATE WHICH IS TWO
YEARS AFTER THE LATER OF THE LAST ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE
ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE
(OR ANY PREDECESSOR OF THIS NOTE) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON IT REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE


 






(1)           This paragraph should be included
only if the Security is a Global Security.


 


(2)           This paragraph should be included
only if the Security is a Restricted Security.


 


A-1

















 


ON RULE 144A, (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.(2)


 






(2)           This paragraph should be included
only if the Security is a Restricted Security.


 


A-2

















 


AMGEN INC.


0.125% Convertible Senior Note due 2011


 


	
  No.

  	
   

  	
  CUSIP: 031162 AM 2

  
	
  Issue Date:

  	
   

  	
   

  
	
  Principal Amount:

  	
   

  	
   

  



 


AMGEN
INC., a Delaware Corporation, promises to pay to Cede & Co. or registered
assigns, the Principal Amount of                                               on
February 1, 2011.


 


This
Security shall bear cash interest at the rate of 0.125% per annum. This
Security is convertible as specified on the other side of this Security.


 


Additional
provisions of this Security are set forth on the other side of this Security.


 


 


	
   

  	
  AMGEN INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
      Name:

  
	
   

  	
   

  	
      Title:

  



 


TRUSTEE’S CERTIFICATE OF

AUTHENTICATION


 


JPMorgan Chase Bank, N.A.,

as Trustee, certifies that this

is one of the Securities referred

to in the within-mentioned Indenture.


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Officer

  



 


A-3

















 


[FORM OF REVERSE SIDE OF NOTE]

0.125% Convertible Senior Note due 2011


 


1.                                       Interest.


 


This
Security shall bear cash interest at the rate of 0.125% per annum. Interest on
this Security shall accrue from the Issue Date, or from the most recent date to
which interest has been paid or provided for. Interest shall be payable
semiannually in arrears on February 1 and August 1 of each year, beginning on
August 1, 2006, to the holders of record of Securities at the Close of Business
on the January 15 or July 15 immediately preceding such Interest Payment Date. Each
payment of cash interest on this Security shall include interest accrued for
the period commencing on and including the immediately preceding Interest
Payment Date (or, if none, the scheduled original Issue Date) through the day
before the applicable Interest Payment Date or purchase date. Any payment
required to be made on any day that is not a Business Day shall be made on the
next succeeding Business Day. Interest shall be calculated using a 360-day year
composed of twelve 30-day months. Interest shall cease to accrue on this
Security upon its Stated Maturity, conversion or purchase by the Company at the
option of the Holder upon a Change in Control in accordance with paragraph 5
hereof.


 


If the
Principal Amount hereof or any portion of such Principal Amount is not paid
when due (whether upon acceleration pursuant to Section 6.02 of the Indenture,
upon the date set for payment of the Change in Control Purchase Price pursuant
to paragraph 5 hereof or upon the Stated Maturity of this Security) or if
interest due hereon or any portion of such interest is not paid when due in
accordance with paragraph 5 or 7 hereof, then in each such case the overdue
amount shall, to the extent permitted by law, bear interest at the rate of
1.125% per annum, compounded semiannually, which interest shall accrue from the
date such overdue amount was originally due to the date payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on the next Interest Payment Date.


 


2.                                       Method
of Payment.


 


Subject
to the terms and conditions of the Indenture, the Company will make payments in
respect of Change in Control Purchase Prices and at Stated Maturity to Holders
who surrender Securities to a Paying Agent to collect such payments in respect
of the Securities. The Company will pay any cash amounts in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. However, the Company may make such cash payments by check
payable in such money.


 


3.                                       Paying
Agent, Conversion Agent and Registrar.


 


Initially,
JPMorgan Chase Bank, N.A., a national banking association (the “Trustee”),
will act as Paying Agent, Conversion Agent and Registrar. The Company may
appoint and change any Paying Agent, Conversion Agent, Registrar or
co-registrar without notice, other than notice to the Trustee. The Company or
any of its Subsidiaries or any of their Affiliates may act as Paying Agent,
Conversion Agent, Registrar or co-registrar. The Company


 


A-4

















 


may
maintain deposit accounts and conduct other banking transactions with the
Trustee in the normal course of business.


 


4.                                       Indenture.


 


The
Company issued the Securities under an Indenture dated as of February 17, 2006
(the “Indenture”), between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as in effect from
time to time (the “TIA”). Capitalized terms used herein and not defined
herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all such terms, and Securityholders are referred to the Indenture
for a statement of those terms.


 


The
Securities are senior unsecured obligations of the Company limited to $2,500,000,000
aggregate Principal Amount (subject to Section 2.07 of the Indenture). The
Indenture does not limit other indebtedness of the Company, secured or
unsecured.


 


5.                                       Purchase
by the Company at the Option of the Holder upon a Change in Control.


 


At the
option of the Holder and subject to the terms and conditions of the Indenture,
the Company shall become obligated to purchase the Securities held by such
Holder no later than 35 Business Days after the occurrence of a Change in
Control of the Company for a Change in Control Purchase Price equal to the
Principal Amount of the Securities to be purchased, plus accrued and unpaid
interest to the Change in Control Purchase Date, which Change in Control
Purchase Price shall be paid in cash.


 


In
addition to the Change in Control Purchase Price payable with respect to all
Securities or portions thereof to be purchased as of the Change in Control
Purchase Date, the Holders of such Securities (or portions thereof) shall be
entitled to receive accrued and unpaid interest with respect thereto, which
shall be paid in cash on or prior to the third Business Day following the later
of the Change in Control Purchase Date and the time of delivery of such
Securities to the Paying Agent pursuant to the Indenture.


 


Holders
have the right to withdraw any Change in Control Purchase Notice by delivering
to the Paying Agent a written notice of withdrawal in accordance with the
provisions of the Indenture.


 


If
cash (and/or securities if permitted under the Indenture) sufficient to pay the
Change in Control Purchase Price, of, together with any accrued and unpaid
interest with respect to, all Securities or portions thereof to be purchased as
of the Change in Control Purchase Date is deposited with the Paying Agent on or
prior to the third Business Day following the Change in Control Purchase Date,
interest shall cease to accrue on such Securities (or portions thereof)
immediately after such Change in Control Purchase Date whether or not the
Security is delivered to the Paying Agent, and the Holder thereof shall have no
other rights as such (other than the right to receive the Change in Control
Purchase Price and accrued and unpaid interest upon surrender of such
Security).


 


A-5

















 


6.                                       Conversion.


 


A
Holder of a Security may convert such Security into cash and, at the option of
the Company, shares of Common Stock of the Company before the Close of Business
on February 1, 2011, if at least one of the following conditions is satisfied:


 


(a)           during any calendar quarter
commencing at any time after June 30, 2006, and only during such calendar
quarter, if, as of the last day of the preceding calendar quarter, the Closing
Price of the Common Stock for at least 20 Trading Days in the period of 30
consecutive Trading Days ending on the last Trading Day of such preceding calendar
quarter exceeds 130% of the Conversion Price per share on that 30th
Trading Day on the last day of such preceding calendar quarter (the “Conversion
Trigger Price”). The Conversion Agent will determine on the Company’s
behalf at the beginning of each calendar quarter commencing at any time after
June 30, 2006 through the calendar quarter ending December 31, 2010, whether
the Securities are convertible as a result of the price of the Common Stock and
notify the Company and the Trustee;


 


(b)           the Company elects to distribute to
all holders of Common Stock (i) rights or warrants entitling them to subscribe
for or purchase, for a period expiring within 60 days after the record date for
such distribution, Common Stock at less than the average of the Closing Prices
of the Common Stock for the five consecutive Trading Days ending on the date
immediately preceding the first public announcement of the distribution, or (ii)
cash, debt securities (or other evidence of Indebtedness) or other assets
(excluding dividends or distributions described in Sections 10.06(1), 10.06(2)
and 10.06(3) of the Indenture, which distribution, together with all other
distributions within the preceding twelve months, has a per share value
exceeding 15% of the average of the Closing Prices of the Common Stock for the
five consecutive Trading Days ending on the date immediately preceding the
first public announcement of the distribution; or


 


(c)           in the event the Company is a party
to a consolidation, merger, binding share exchange, transfer or lease of all or
substantially all of the Company’s assets, pursuant to which the Common Stock
would be converted into cash, securities or other assets, at any time from or
after the date which is 15 days prior to the anticipated effective time of the
transaction until 35 days after the actual date of such transaction (or, if the
transaction also constitutes a change in control, until the Change in Control
Purchase Date). After the effective time of the transaction, settlement of the Conversion
Value will be based on the kind and amount of cash, securities or other assets
of the Company or another Person that a holder of Common Stock received in such
transaction (or, if the transaction provides for the holders of Common Stock
the right to receive more than a single type of consideration determined based
in part upon any form of stockholder election, the weighted average of the
types and amounts of consideration received by the holders of Common Stock);
provided that, for the avoidance of doubt, the Conversion Value will be paid in
cash and at the Company’s election, cash, Common Stock or a combination of cash
and Common Stock in accordance with the terms of the Indenture. The Company
will notify Holders and the Trustee as promptly as practicable following the
date the Company publicly announces such transaction (but in no event less than
15 days prior to the anticipated effective date of such transaction).


 


A-6

















 


If the
Company makes a distribution described in subsection (a) or (b), the Company
must notify Holders at least 20 days prior to the Ex-Dividend Date for such
distribution. Once the Company has given such notice, Holders may surrender
their Securities for conversion at any time until the earlier of the Close of
Business on the Business Day prior to the Ex-Dividend Date or the Company’s
announcement that such distribution will not take place, even if the Securities
are not convertible at that time. No adjustment to the ability of Holders to
convert will be made if Holders are entitled to participate in the distribution
without conversion.


 


If the
transaction also constitutes a “Change in Control,” the Holder can
require the Company to purchase all or a portion of its Securities described in
paragraph 5.


 


A
Security in respect of which a Holder has delivered a Change in Control
Purchase Notice exercising the option of such Holder to require the Company to
purchase such Security may be converted only if such notice of exercise is
withdrawn in accordance with the terms of the Indenture.


 


The
Initial Conversion Rate is 12.5247 shares of Common Stock per $1,000 Principal
Amount, subject to adjustment in certain events described in the Indenture. The
Company will deliver cash or a check in lieu of any fractional share of Common
Stock.


 


Notwithstanding
anything herein to the contrary, Securityholders may surrender the Securities
for conversion at any time on or after January 1, 2011, until the Close of
Business on the Business Day immediately preceding the Maturity Date.


 


Accrued
and unpaid interest will not be paid in cash on Securities that are converted
but will be paid in the manner provided in the following paragraph; provided,
however, that Securities surrendered for conversion during the period, in the
case of interest, from the Close of Business on any Regular Record Date next
preceding any Interest Payment Date to the opening of business on such Interest
Payment Date, shall be entitled to receive such semiannual interest payable on
such Securities on the corresponding Interest Payment Date and Securities
surrendered for conversion during such periods must be accompanied by payment
of an amount equal to the interest with respect thereto that the registered
Holder is to receive; provided that no such payment need be made (i) in
connection with any conversion following the Regular Record Date immediately
preceding the final Interest Payment Date; (ii) if the Company has specified a
Change in Control Purchase Date that is after a Record Date and on or prior to
the corresponding Interest Payment Date; or (iii) to the extent of Defaulted
Interest, if any Defaulted Interest exists at the time of conversion with
respect to such Security.


 


A
Holder may convert a portion of a Security if the Principal Amount of such
portion is $1,000 or an integral multiple of $1,000. No payment or adjustment
will be made for dividends on the Common Stock except as provided in the
Indenture. On conversion of a Security, a Securityholder will not receive,
except as described herein, any cash payment representing accrued interest. Instead,
accrued interest will be deemed paid by the shares of Common Stock (or any cash
in lieu thereof) received by the Securityholder on conversion. Delivery to the
holder of the full number of shares of Common Stock into which the Security is
convertible (or any cash in lieu thereof), together with any cash payment, will
be deemed to satisfy the Company’s obligation to pay (i) the Principal Amount
of the Security and (ii) accrued


 


A-7

















 


and
unpaid interest, and accrued interest with respect to the converted Security
shall not be cancelled, extinguished or forfeited, but rather shall be deemed
to be paid in full.


 


The
Company will not adjust the Conversion Rate to account for accrued interest.


 


To
convert a Security that is represented by a Global Security, a Holder must
convert by book-entry transfer to the Conversion Agent through the facilities
of the DTC. To convert a Security that is represented by a Certificated
Security, a Holder must (1) complete and manually sign the conversion notice
below and deliver such notice to the Conversion Agent, (2) surrender the
Security to the Conversion Agent, (3) furnish appropriate endorsements and
transfer documents if required by the Conversion Agent, the Company or the
Trustee and (4) pay all transfer or similar tax, if required.


 


The
Conversion Rate will be adjusted for dividends or distributions on Common Stock
payable in Common Stock or other Capital Stock; subdivisions, combinations or
certain reclassifications of Common Stock; distributions to all holders of
Common Stock of certain rights to purchase Common Stock for a period expiring
within 60 days of the record date for such distribution at less than the
Closing Price of the Common Stock at the Time of Determination; distributions
to such holders of assets (including shares of Capital Stock of a Subsidiary)
or debt securities of the Company or certain rights to purchase securities of
the Company; cash dividends or cash distributions; and distributions in respect
of a tender offer or exchange offer of the Common Stock. However, no adjustment
need be made if Securityholders may participate in the transaction or in
certain other cases. The Company from time to time may voluntarily increase the
Conversion Rate.


 


7.                                       Defaulted
Interest.


 


Except
as otherwise specified with respect to the Securities, any Defaulted Interest
on any Security shall forthwith cease to be payable to the registered Holder
thereof on the relevant Regular Record Date or accrual date, as the case may
be, by virtue of having been such Holder, and such Defaulted Interest may be
paid by the Company as provided for in Section 11.02 of the Indenture.


 


8.                                       Denominations;
Transfer; Exchange.


 


The
Securities are in fully registered form, without coupons, in denominations of
$1,000 of Principal Amount and integral multiples of $1,000. A Holder may
transfer or exchange Securities in accordance with the Indenture. The Registrar
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not register the transfer or
exchange of any Securities in respect of which a Change in Control Purchase
Notice has been given and not withdrawn (except, in the case of a Security to
be purchased in part, the portion of the Security not to be purchased).


 


9.                                       Persons
Deemed Owners.


 


The
registered Holder of this Security may be treated as the owner of this Security
for all purposes.


 


A-8

















 


10.                                 Unclaimed
Money or Securities.


 


The
Trustee and the Paying Agent shall return to the Company upon written request
any money or securities held by them for the payment of any amount with respect
to the Securities that remains unclaimed for two years, subject to applicable
unclaimed property laws. After return to the Company, Holders entitled to the
money or securities must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another person.


 


11.                                 Amendment;
Waiver.


 


Subject
to certain exceptions set forth in the Indenture, (i) the Indenture or the
Securities may be amended with the written consent of the Holders of at least a
majority in aggregate Principal Amount of the Securities at the time
outstanding and (ii) certain Defaults may be waived with the written consent of
the Holders of a majority in aggregate Principal Amount of the Securities at
the time outstanding. Subject to certain exceptions set forth in the Indenture,
without the consent of any Securityholder, the Company and the Trustee may
amend the Indenture or the Securities to cure any ambiguity, omission, defect
or inconsistency, or to comply with Article 5 or Section 10.17 of the
Indenture, to secure the Company’s obligations under this Security or to add to
the Company’s covenants for the benefit of the Securityholders or to surrender
any right or power conferred, or to comply with any requirement of the SEC in
connection with the qualification of the Indenture under the Trust Indenture
Act of 1939 and any amendment thereof, or as necessary in connection with the
registration of the Securities under the Securities Act or to make any change
that does not adversely affect the rights of any Holders.


 


12.                                 Defaults
and Remedies.


 


Under
the Indenture, Events of Default include (i) default in the payment of interest
which becomes due and payable upon exercise by the Company of its option
provided for in paragraph 6(a) hereof which default in any such case continues
for 30 days; (ii) default in payment of the Principal Amount or Change in
Control Purchase Price in respect of the Securities when the same becomes due
and payable; (iii) failure by the Company to comply with other agreements in
the Indenture or the Securities, subject to notice and lapse of time; (iv) (a)
failure of the Company to make any payment by the end of any applicable grace
period after maturity of Indebtedness in an amount in excess of $50.0 million,
or (b) the acceleration of Indebtedness in an amount in excess of $50.0 million
because of a default with respect to such Indebtedness without such Indebtedness
having been discharged or such acceleration having been cured, waived,
rescinded or annulled, subject to notice and lapse of time; provided, however,
that if any such failure or acceleration referred to in (a) or (b) above shall
cease or be cured, waived, rescinded or annulled, then the Event of Default by
reason thereof shall be deemed not to have occurred; and (v) certain events of
bankruptcy or insolvency. If an Event of Default occurs and is continuing, the
Trustee, or the Holders of at least 25% in aggregate Principal Amount of the
Securities at the time outstanding, may declare the Principal Amount through
the date of such declaration, and any accrued and unpaid interest through the
date of such declaration, on all the Securities to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default
which will result in the Principal Amount on the


 


A-9

















 


Securities,
and any accrued and unpaid interest through the occurrence of such event,
becoming due and payable immediately upon the occurrence of such Events of
Default.


 


Securityholders
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may refuse to enforce the Indenture or the Securities
unless it receives indemnity or security reasonably satisfactory to it. Subject
to certain limitations, Holders of a majority in aggregate Principal Amount of
the Securities at the time outstanding may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Securityholders notice of
any continuing Default (except a Default in payment of amounts specified in
clause (i) or (ii) above) if it determines that withholding notice is in their
interests.


 


13.                                 Trustee
Dealings with the Company.


 


Subject
to certain limitations imposed by the TIA, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with and collect obligations owed to it by
the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.


 


14.                                 No
Recourse Against Others.


 


A
director, officer, employee or stockholder, as such, of the Company shall not
have any liability for any obligations of the Company under the Securities or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.


 


15.                                 Authentication.


 


This
Security shall not be valid until an authorized officer of the Trustee manually
signs the Trustee’s Certificate of Authentication on the other side of this
Security.


 


16.                                 Abbreviations.


 


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


 


17.                                 GOVERNING
LAW.


 


THE
LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS SECURITY.


 


A-10

















 


The
Company will furnish to any Securityholder upon written request and without
charge a copy of the Indenture which has in it the text of this Security in
larger type. Requests may be made to:


 


Amgen
Inc.


 


One Amgen Center Drive

Thousand Oaks, CA 91320-1799

Telephone No.: (805) 447-1000

Facsimile No.: (805) 499-8011

Attention:  Treasurer


 


A-11

















 


ASSIGNMENT FORM


 


To assign this Security, fill in the form below:


 


I or we assign and transfer this Security to


 


	
   

  
	
   

  



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


 


	
   

  
	
   

  
	
   

  



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


 


and irrevocably appoint

                                          
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.


 


CONVERSION NOTICE


 


To convert this Security into Common Stock of the
Company, check the box: o


 


To convert only part of this Security, state the
Principal Amount to be converted (which must be $1,000 or an integral multiple
of $1,000):


 


$                                  


 


If you want the stock certificate made out in another
person’s name, fill in the form below:


 


	
   

  
	
   

  



(Insert other person’s soc. sec. or tax ID no.)


 


	
   

  
	
   

  
	
   

  



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


 


	
  Date:

  	
   

  	
   

  	
  Your Signature:

  	
   

  	
   

  



 


	
   

  
	
   

  



(Sign exactly as your
name appears on the other side of this Security)


 


A-12

















 


AMGEN INC.

$2,500,000,000

0.125% Convertible Senior Notes due 2011


 


FIRST SUPPLEMENTAL INDENTURE


 


Dated as of June 8, 2006


 


to the


 


INDENTURE


 


Dated as of February 17, 2006


 


JPMORGAN CHASE BANK, N.A.,
Trustee


 

















 


FIRST SUPPLEMENTAL INDENTURE dated as of June 8, 2006
between Amgen Inc., a Delaware corporation (the “Company”),
and JPMorgan Chase Bank, N.A., a national banking association (“Trustee”), to the Indenture (as defined below).


 


RECITALS


 


A.            The
Company is a party to that certain Indenture, dated as of February 17, 2006
(the “Indenture”), pursuant to which the
Company’s 0.125%
Convertible Senior Notes due 2011 (the “Securities”)
were originally issued. Capitalized terms used herein without definition have
the meanings provided to them in the Indenture.


 


B.            Section
9.01(1) of the Indenture provides that the Company and the Trustee may amend
the Indenture and the Securities to cure any ambiguity, omission, defect or
inconsistency; and Section 9.01(6) of the Indenture provides that the Company
and the Trustee may amend the Indenture and the Securities to make any change
that does not adversely affect the rights of any holders of the Securities. Section
9.01 of the Indenture also provides that no amendment to cure any ambiguity,
omission, defect or inconsistency in this Indenture made solely to conform the
Indenture to the description of the Securities contained in the offering
memorandum to which the Securities have been initially offered shall be deemed
to adversely affect the interests of the Holders.


 


C.            The
Company desires to amend the Indenture and the Securities to cure certain
ambiguities, omissions, defects and/or inconsistencies and to conform the
Indenture to the “Description of Notes” section of the offering memorandum
pursuant to which the Securities were initially offered, dated February 14,
2006 (the “Offering Memorandum”), in each
case as provided herein.


 


D.            The
Company has authorized the execution and delivery of this Supplemental
Indenture and the Trustee has received an Opinion of Counsel and an Officers’
Certificate pursuant to Section 12.04 of the Indenture.


 


Each party agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of the
Securities:


 


1.             Amendments
to the Securities. In order to amend the Indenture and the Securities to
cure certain ambiguities, omissions, defects and/or inconsistencies and to
conform the Indenture to the “Description of Notes” section of the Offering
Memorandum, the following sections of the Indenture are modified or
supplemented as follows:


 


a.     SECTION 1.01       Definitions.


 


i.                                          The
second paragraph of the definition of “Average Closing Price” is
modified to change the reference to “, (3) or (5)” to “or (3)”.


 


ii.                                       Section
1.01 is amended to add the following definition:


 

















 


“Net Share
Amount” means (i) the Remaining Shares after giving effect to any election
by the Company to pay cash in lieu of all or a portion thereof pursuant to
Section 10.01 and (ii) any such cash.


 


b.     SECTION 10.07     Adjustment for Rights Issue.


 


i.                                          Section
10.07 is amended to change all references to “Section 10.06(4)” to “Section
10.06(3)”.


 


c.     SECTION 10.08     Adjustment for Other Distributions.


 


i.                                          Section
10.08 is amended to change all references to “Section 10.06(4)” to “Section
10.06(3)”.


 


d.             SECTION
10.09(a)                Adjustment for Cash
Dividends.


 


i.                                          Section
10.09(a) is amended to delete “, subject to the provisions of Section 10.09(b)”.


 


e.             SECTION
10.13     When Adjustment May Be
Deferred.


 


i.                                          The
second paragraph of Section 10.13 is amended to change the reference to “Sections
10.6, 10.7, 10.8, 10.9, 10.11, and 10.12” to “Sections 10.06, 10.07, 10.08 and
10.09”.


 


f.      SECTION 10.20     Simultaneous Adjustments.


 


i.                                          Section
10.20 is amended to change the reference to “Section 10.06(4)” to “Section
10.06(3)”.


 


g.             SECTION
12.02(b)                Notices; Address
of Agency.


 


i.                                          Section
12.02(b) is amended to change the reference to “Section 10.12” to “Section
10.02”.


 


h.             NOTES
– SECTION 6


 


i.                                          The
last paragraph of Section 6 of the Form of Note and each of the Global
Securities previously issued is amended to remove the following sentence:  “The Company from time to time may
voluntarily increase the Conversion Rate.”.


 


i.              NOTES
– SECTION 12


 


i.                                          The
first sentence of the first paragraph of Section 12 of the Form of Note and
each of the Global Securities previously issued is amended to change section
(i) to “default in the payment of interest, which default continues for 30
days;”.


 


2

















 


2.             Confirmations;
Effectiveness. As amended by this Supplemental Indenture, the Indenture and
the Securities are ratified and confirmed in all respects, and the Indenture as
so amended shall be read, taken and construed as one and the same instrument. This
Supplemental Indenture shall form a part of the Indenture for all purposes, and
every holder of Securities heretofore or hereafter authenticated and delivered
shall be bound hereby.


 


3.             Trustee.
The Trustee shall not be responsible in any manner whatsoever for or in respect
of the validity or sufficiency of this Supplemental Indenture or for or in
respect of the recitals contained herein, all of which recitals are made solely
by the Company.


 


4.             Trust
Indenture Act. If and to the extent that any provision of this Supplemental
Indenture limits, qualifies or conflicts with another provision included in
this Supplemental Indenture or in the Indenture, which is required to be
included in this Supplemental Indenture or the Indenture by the Trust Indenture
Act of 1939, as amended (the “TIA”), such
required provision of the TIA shall control.


 


5.             Conflicts.
To the extent of any inconsistency between the terms of the Indenture and this
Supplemental Indenture, the terms of this Supplemental Indenture will control.


 


6.             Governing
Law. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS SUPPLEMENTAL
INDENTURE.


 


7.             Multiple
Originals. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement. One signed copy is enough to prove this
Supplemental Indenture.


 


8.             Entire
Agreement. This Supplemental Indenture constitutes the entire agreement of
the parties hereto with respect to the amendments to the Indenture set forth
herein.


 


9.             Separability
Clause. In case any provision in this Supplemental Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.


 


(Signature Page Follows)


 


3

















 


IN WITNESS WHEREOF, the undersigned, being duly
authorized, have executed this Supplemental Indenture on behalf of the
respective parties hereto as of the date first above written.


 


 


	
   

  	
  AMGEN INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David J. Scott

  	
   

  
	
   

  	
  Name:

  	
  David J. Scott

  
	
   

  	
  Title:

  	
  Senior Vice President,
  General

  Counsel and Secretary

  
					



 


Signature Page to
Supplemental Indenture for Notes due 2011


 

















 


	
   

  	
  JPMORGAN CHASE BANK,
  N.A.,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ L. O’Brien

  	
   

  
	
   

  	
  Name:

  	
  L. O’Brien

  
	
   

  	
  Title:

  	
  Vice President

  
					



 


Signature Page to
Supplemental Indenture for Notes due 2011