Exhibit 4.20


 


AMGEN INC.

$2,500,000,000

0.375% Convertible Senior


Notes due 2013


 


 


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

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
   

  
	
   

  	
   

  
	
  COVENANTS

  	
   

  



 


i

















 


	
  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

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
   

  
	
   

  	
   

  
	
  DISCHARGE OF INDENTURE

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01

  	
  Discharge of Liability on Securities

  	
  42

  



 


ii

















 


	
  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

  	
  44

  
	
   

  	
   

  	
   

  
	
  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

  
	
  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

  



 


iii

















 


	
  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
0.375% Convertible Senior Notes due 2013 (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 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

  	
  x

  	
  Conversion Rate in
  effect 

  	
   

  	
   

  
	
  of
  Common Stock for such Trading Day

  	
  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 12.5814 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 0.375%
Convertible Senior Notes due 2013, 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

  
	
  “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 30 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.


 


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


 


44

















 


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 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.


 


45

















 


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.


 


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.


 


46

















 


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:


 


(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;


 


47

















 


(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.


 


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


 


48

















 


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:


 


	
  R’ =  
  

  	
  R x M

  	
   

  
	
  M - F

  	
   

  



 


49

















 


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 respect of each share of Common
Stock multiplied by the average of the Post-Distribution Prices


 


50

















 


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

  	
   

  	
  February

  1, 2012

  	
   

  	
  February

  1, 2013

  	
   

  
	
  $

  	
  71.93

  	
   

  	
  1.3210

  	
   

  	
  1.3210

  	
   

  	
  1.3210

  	
   

  	
  1.3210

  	
   

  	
  1.3210

  	
   

  	
  1.3210

  	
   

  	
  1.3210

  	
   

  	
  1.3210

  	
   

  
	
  $

  	
  75.00

  	
   

  	
  1.1568

  	
   

  	
  1.1837

  	
   

  	
  1.2126

  	
   

  	
  1.2288

  	
   

  	
  1.2285

  	
   

  	
  1.1969

  	
   

  	
  1.0933

  	
   

  	
  0.7519

  	
   

  
	
  $

  	
  80.00

  	
   

  	
  0.9384

  	
   

  	
  0.9448

  	
   

  	
  0.9445

  	
   

  	
  0.9392

  	
   

  	
  0.9133

  	
   

  	
  0.8494

  	
   

  	
  0.6997

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  85.00

  	
   

  	
  0.7681

  	
   

  	
  0.7630

  	
   

  	
  0.7451

  	
   

  	
  0.7194

  	
   

  	
  0.6780

  	
   

  	
  0.5985

  	
   

  	
  0.4358

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  90.00

  	
   

  	
  0.6347

  	
   

  	
  0.6221

  	
   

  	
  0.5955

  	
   

  	
  0.5612

  	
   

  	
  0.5029

  	
   

  	
  0.4192

  	
   

  	
  0.2652

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  95.00

  	
   

  	
  0.5296

  	
   

  	
  0.5120

  	
   

  	
  0.4803

  	
   

  	
  0.4418

  	
   

  	
  0.3789

  	
   

  	
  0.2919

  	
   

  	
  0.1578

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  100.00

  	
   

  	
  0.4459

  	
   

  	
  0.4255

  	
   

  	
  0.3911

  	
   

  	
  0.3513

  	
   

  	
  0.2895

  	
   

  	
  0.2086

  	
   

  	
  0.0935

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  105.00

  	
   

  	
  0.3791

  	
   

  	
  0.3573

  	
   

  	
  0.3220

  	
   

  	
  0.2827

  	
   

  	
  0.2240

  	
   

  	
  0.1520

  	
   

  	
  0.0589

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  110.00

  	
   

  	
  0.3248

  	
   

  	
  0.3030

  	
   

  	
  0.2678

  	
   

  	
  0.2302

  	
   

  	
  0.1757

  	
   

  	
  0.1128

  	
   

  	
  0.0404

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  115.00

  	
   

  	
  0.2811

  	
   

  	
  0.2586

  	
   

  	
  0.2252

  	
   

  	
  0.1893

  	
   

  	
  0.1398

  	
   

  	
  0.0855

  	
   

  	
  0.0314

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  120.00

  	
   

  	
  0.2456

  	
   

  	
  0.2236

  	
   

  	
  0.1914

  	
   

  	
  0.1579

  	
   

  	
  0.1129

  	
   

  	
  0.0688

  	
   

  	
  0.0301

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  125.00

  	
   

  	
  0.2163

  	
   

  	
  0.1951

  	
   

  	
  0.1634

  	
   

  	
  0.1341

  	
   

  	
  0.0972

  	
   

  	
  0.0574

  	
   

  	
  0.0290

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  130.00

  	
   

  	
  0.1933

  	
   

  	
  0.1747

  	
   

  	
  0.1471

  	
   

  	
  0.1162

  	
   

  	
  0.0840

  	
   

  	
  0.0548

  	
   

  	
  0.0279

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  135.00

  	
   

  	
  0.1772

  	
   

  	
  0.1580

  	
   

  	
  0.1317

  	
   

  	
  0.1028

  	
   

  	
  0.0773

  	
   

  	
  0.0527

  	
   

  	
  0.0268

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  140.00

  	
   

  	
  0.1622

  	
   

  	
  0.1444

  	
   

  	
  0.1190

  	
   

  	
  0.0963

  	
   

  	
  0.0744

  	
   

  	
  0.0508

  	
   

  	
  0.0259

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  145.00

  	
   

  	
  0.1460

  	
   

  	
  0.1319

  	
   

  	
  0.1119

  	
   

  	
  0.0940

  	
   

  	
  0.0718

  	
   

  	
  0.0490

  	
   

  	
  0.0249

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  150.00

  	
   

  	
  0.1416

  	
   

  	
  0.1251

  	
   

  	
  0.1084

  	
   

  	
  0.0909

  	
   

  	
  0.0693

  	
   

  	
  0.0474

  	
   

  	
  0.0239

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  155.00

  	
   

  	
  0.1374

  	
   

  	
  0.1203

  	
   

  	
  0.1058

  	
   

  	
  0.0861

  	
   

  	
  0.0672

  	
   

  	
  0.0455

  	
   

  	
  0.0227

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  160.00

  	
   

  	
  0.1335

  	
   

  	
  0.1167

  	
   

  	
  0.0983

  	
   

  	
  0.0833

  	
   

  	
  0.0647

  	
   

  	
  0.0440

  	
   

  	
  0.0222

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  165.00

  	
   

  	
  0.1301

  	
   

  	
  0.1140

  	
   

  	
  0.0962

  	
   

  	
  0.0804

  	
   

  	
  0.0627

  	
   

  	
  0.0426

  	
   

  	
  0.0211

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  170.00

  	
   

  	
  0.1276

  	
   

  	
  0.1109

  	
   

  	
  0.0938

  	
   

  	
  0.0780

  	
   

  	
  0.0608

  	
   

  	
  0.0412

  	
   

  	
  0.0202

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  175.00

  	
   

  	
  0.1244

  	
   

  	
  0.1083

  	
   

  	
  0.0915

  	
   

  	
  0.0758

  	
   

  	
  0.0590

  	
   

  	
  0.0399

  	
   

  	
  0.0198

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  180.00

  	
   

  	
  0.1213

  	
   

  	
  0.1067

  	
   

  	
  0.0893

  	
   

  	
  0.0735

  	
   

  	
  0.0574

  	
   

  	
  0.0388

  	
   

  	
  0.0189

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  185.00

  	
   

  	
  0.1183

  	
   

  	
  0.1039

  	
   

  	
  0.0885

  	
   

  	
  0.0716

  	
   

  	
  0.0557

  	
   

  	
  0.0376

  	
   

  	
  0.0185

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  190.00

  	
   

  	
  0.1153

  	
   

  	
  0.1016

  	
   

  	
  0.0867

  	
   

  	
  0.0699

  	
   

  	
  0.0543

  	
   

  	
  0.0367

  	
   

  	
  0.0179

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  195.00

  	
   

  	
  0.1129

  	
   

  	
  0.0996

  	
   

  	
  0.0842

  	
   

  	
  0.0678

  	
   

  	
  0.0531

  	
   

  	
  0.0356

  	
   

  	
  0.0173

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  200.00

  	
   

  	
  0.1095

  	
   

  	
  0.0971

  	
   

  	
  0.0823

  	
   

  	
  0.0663

  	
   

  	
  0.0517

  	
   

  	
  0.0346

  	
   

  	
  0.0167

  	
   

  	
  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 email 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.


0.375% Convertible Senior Note due 2013


 


	
  No.

  	
   

  	
  CUSIP: 031162 AP 5

  
	
  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, 2013.


 


This Security shall bear cash interest at the rate of
0.375% 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]


0.375% Convertible Senior Note due 2013


 


1.                                       Interest.


 


This Security shall bear cash interest at the rate of 0.375%
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 1.375% 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, 2013, 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 12.5814 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, 2013, 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

0.375% Convertible Senior Notes due 2013


 


 


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 0.375% Convertible Senior
Notes due 2013 (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.                                          Section 6(a) of
the Form of Note and each of the Global Securities previously issued is
amended to change the reference to “December 31, 2010” to “December 31,
2012”.


 


ii.                                       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.”.


 


2

















 


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.                                       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 2013


 

















 


	
   

  	
  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 2013